Tag: same-sex marriage

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Why the clerk in Kentucky who refuses to license same-sex marriages doesn’t have the law on her side

A county clerk in Kentucky who is slated to appear in a federal courtroom Thursday after refusing to license same-sex marriages may have sincerely held beliefs but she doesn’t have the law on her side.

Kim Davis, a self-described Apostolic Christian who in January was elected clerk of Rowan County, a precinct that lies about 135 miles east of Louisville, has been directed by U.S. District Judge David Bunning to explain her actions, which place her at risk of fines or jail time.

In addition to its consequences for same-sex couples who would assert their legal right to marry in Rowan Country, the standoff represents two decades of advocacy that aims to advance a conservative agenda under the pretext of religious freedom.

In Kentucky the dustup began anew Tuesday after Davis declined to issue licenses to two same-sex couples a day after the U.S. Supreme Court let stand a ruling by Bunning that directs Davis to authorize legal marriages presented to her. Davis stopped licensing all marriages following a ruling by the Supreme Court in June that upheld the constitutional right of same-sex couples to marry. Bluegrass State law requires marriage licenses to be signed by a county clerk.

Davis, who also has refused to step down, issued a statement Tuesday in which she described her actions as compelled by faith. “To issue a marriage license which conflicts with God’s definition of marriage, with my name affixed to the certificate, would violate my conscience,” Davis wrote. “It is not a light issue for me. It is a Heaven or Hell decision. For me it is a decision of obedience. I have no animosity toward anyone and harbor no ill will.”

Of course, as an elected official, Davis can resign if her beliefs prevent her from discharging duties she swore an oath to uphold. There’s no evidence the state is requiring Davis to hold a particular belief as a condition of public employment.

“The Court must again point out that the act of issuing a marriage license to a same-sex couple merely signifies that the couple has met the legal requirements to marry,” Bunning ruled Aug. 12 when he directed Davis to comply with a directive by Governor Steve Beshear that clerks throughout the state license all legal marriages presented to them. “It is not a sign of moral or religious approval.”

Nor is this a case of the government’s compelling speech in violation of the First Amendment. As Bunning noted, the only speech the state seeks to compel is speech by Davis in the performance of her official duties, which the state can do. Remember, too, that Davis embodies the state when she acts in her capacity as clerk.

A similar problem arises for Davis’ claims to being a conscientious objector. As Jonathan Adler, a professor of constitutional law at Case Western Reserve University explained Wednesday in The Washington Post, referring to Davis:

“Someone who objects to war due to his religious conscience has a right to be a conscientious objector and not serve in the military, even were there to be a draft. But he does not have the right to serve as a military officer, draw a paycheck from the military and then substitute his own personal views of when war is justified for that of the government. The same applies here.”

Finally, Davis seeks the protection of Kentucky’s version of the Religious Freedom Restoration Act, a federal law enacted in 1993 that provides an exemption from legal requirements for religious objectors unless the government can show it has a compelling interest that requires the person to comply with the law.

Despite its co-optation by conservatives, the law represented a bipartisan rejoinder to a ruling by the Supreme Court three years earlier that upheld the authority of the State of Oregon to criminalize possession of peyote without providing an exemption for Native Americans who use the drug for religious purposes.

Since then, as Professor Wendy Brown of UC Berkeley observed in a lecture last July at the London School of Economics, states have adopted their versions of the religious freedom law so that businesses can discriminate against those whom they think are engaged in acts of sin. Think of a bakery whose owners refuse to bake a wedding cake for a same-sex couple.

In a more radical turn, the Supreme Court extended that religious freedom exemption to corporations, when it ruled last year in Burwell v. Hobby Lobby Stores that a for-profit corporation need not comply with a legal mandate that employer-sponsored health plans cover the cost of contraceptives if the corporation’s—yes, the corporation’s—religious beliefs dictate otherwise.

The ruling, which Davis cited at least nine times in her application to the Supreme Court for a stay of Bunning’s order, represents a line of advocacy based on what Brown terms “a jurisprudence of aggrieved power [in which] the assertion of conscience is central in… producing the claimant as a beleaguered minority, requiring protection from the state and from a popular majority.”

Davis has yet to show how her actions, which, after all, represent state action, qualify her for an exemption under Kentucky’s religious freedom law. Bakers who decline to bake wedding cakes for same-sex couples have not taken an oath to uphold the law of the land.

That’s not to suggest Davis is not free to argue that the religious freedom law allows her to avoid issuing licenses to same-sex couples. She can do that on appeal while discharging her duties in the meantime.

No matter what transpires, the incident shows the reach of the jurisprudence of religious freedom. “Somehow the separation of church and state has come to mean blocking the state from protecting the civil rights of citizens and forcing it to support—and pay for—sectarianism, bigotry, superstition and bullying,” Katha Pollitt wrote last year in The Nation. “I really doubt this is what Thomas Jefferson had in mind.”

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Law

Kentucky clerk’s appeal of same-sex marriage ruling highlights the reach of Hobby Lobby

The signature of Barbara Fiala appears on my driver’s license. But I have no idea what she thinks of my fitness to operate a motor vehicle in New York State. And who is Barbara Fiala anyway?

As it happens, Ms. Fiala is the former state commissioner of motor vehicles. I Googled her upon reading about an application filed Saturday by Kim Davis with the U.S. Supreme Court. Davis is asking the justices to stay a court order that directs her to issue licenses sought by four couples, including two of the same sex, to marry in Rowan County, Kentucky, where Davis holds the office of clerk, an elected post.

The litigation has its origins in the events of June 26, when, within hours of a ruling by the court that upheld the right of same-sex couples to marry, Governor Steve Beshear directed clerks of counties throughout the Bluegrass State to license the marriages of same-sex couples.

The directive did not sit well with Davis, an Apostolic Christian who believes that marriage represents a union between one man and one woman. Kentucky requires that marriage licenses be signed by a county clerk, an act that Davis charges would violate her faith in applications by same-sex couples.

Davis improvised a way around the directive: She would refrain from issuing any marriage licenses. The betrothed sued, citing the governor’s decree. Judge David Bunning of the U.S. district court in Ashland sided with the couples but postponed the effective data of his ruling until this Monday to give Davis time to appeal. On Wednesday, the U.S. Court of Appeals for the 6th Circuit denied Davis’ request for a stay.

The requirement that clerks affix their names to marriage licenses would constitute a “searing act of personal validation [that] would forever, and irreversibly, echo in her conscience—and, if it happened, there is no absolution or correction that any earthly court can provide to rectify it,” Davis charged in papers filed with Justice Kagan, who oversees emergency appeals from Kentucky.

“A stay of the injunction will halt the irreversible implications on Davis’ conscience while this case undergoes appellate review, especially since multiple less restrictive alternatives are available that do not substantially burden Davis (or the Plaintiffs),” Davis added.

The application characterizes the need for relief as arising from a conflict between the constitutional right of same-sex couples to marry and the free exercise of religion enshrined in the First Amendment. Davis has two choices, she says: affix her name to marriage licenses for same-sex couples, or resign.

Of course, it’s unlikely the governor’s directive or the requirement that clerks in Kentucky affix their names to marriage licenses aim to interfere with religion. A law that punishes conduct just because it is religious is invalid. For example, a municipal ordinance may not prohibit ritual slaughter of chickens while otherwise allowing the slaughter of chickens.

The problem for Davis may be that it’s hard to find such intent behind the implementation of same-sex marriage in Kentucky. State law requires, among other things, that a marriage license bear the name of the county clerk pursuant to whose authority the license was issued. But by its terms the requirement seems to reflect simply that Kentucky has authorized the marriage rather than the beliefs of the clerk whose name happens to appear on the license.

In support of her application, Davis cites the Court’s ruling last year in Burwell v. Hobby Lobby Stores, which found the Affordable Care Act’s mandate that employer-sponsored health plans include coverage for contraceptives to be unlawful because it burdened the exercise of religion by a closely held corporation.

Davis leans on the Hobby Lobby majority’s finding that the health care law’s requirement that employers cover the cost of birth control did not constitute the least restrictive means of serving a compelling government interest, which is a test the court applies to claims the government has engaged in religious discrimination.

As Davis sees it, the state could assure the issuance of marriage licenses to same-sex couples in Rowan County by, among other things, allowing county officials to recuse themselves from issuing licenses based on a sincerely held religious objection, deputizing a clerk from a nearby county to issue marriage licenses to same-sex couples, or revising the form the state uses for marriage licenses to remove the clerk’s name.

“All of the foregoing options, and others, are available to avoid substantially burdening Davis’ personal religious freedom in the wake of the redefinition of marriage in Obergefell,” she writes.

No matter which way the Court rules—the justices can choose not to act and allow Davis to appeal in the normal course, or they can invite a response from the couples who sued—the application highlights one way Hobby Lobby reverberates.

In addition, by framing the problem as an issue of religious conscience rather than one of equal protection of the laws for same-sex couples, Davis advances a line of argument that, as Professor Wendy Brown of UC Berkeley observed in a lecture in July at the London School of Economics, finds its endorsement in the Hobby Lobby ruling.

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Law

Justice Scalia’s dissent in marriage ruling. Really?

The Supreme Court’s ruling legalizing same-sex marriage elicited a colorful dissent from Justice Antonin Scalia, who accused the majority of making policy from the bench.

Scalia charged his fellow justices with overstepping their roles as jurists to wade into a matter of social policy that ought to have been resolved by voters and their elected representatives. According to Scalia,

“This is a naked judicial claim to legislative—indeed, super-legislative—power; a claim fundamentally at odds with our system of government. Except as limited by a constitutional prohibition agreed to by the People, the States are free to adopt whatever laws they like, even those that offend the esteemed Justices’ ‘reasoned judgment.’ A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.”

To allow the question of marriage to be resolved “by a select, patrician, highly unrepresentative panel of nine is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation,” Scalia added.

He later quoted from the majority’s opinion, followed by his inserting a rhetorical “Really?” that evokes a recurring sketch by Seth Myers and Amy Poehler on the “Weekend Update” segment of “Saturday Night Live.”

The lament is one that Scalia returns to from time to time. “The core of Justice Scalia’s judicial philosophy is that judges deciding constitutional cases should discover the answers in external sources: judges must not make value choices,” Erwin Chemerinsky a professor of constitutional law and dean at the University of California Irvine, wrote in a law review article in 2000.

Of course, Justice Scalia is entitled to his philosophy. But that doesn’t make it any easier to reconcile his charges in the marriage decision with the occasions on which Justice Scalia has seemed quite willing, from the bench, to interfere in the “democratic process”—his words—from the dissent in the marriage ruling.

I’m thinking here of Bush v. Gore, the 5 to 4 decision by a majority of the Court in 2000 that ended the counting of votes in a hotly contested presidential election and thereby awarded the White House to George W. Bush.

In that case, the majority—of which Scalia was a member (the opinion was signed “by the Court”)—stopped tries to tally votes in Florida after finding that the recount—with its attempt by officials in the Sunshine State to discern the intent of voters from ballots that voting machines had failed to mark clearly—violated the constitutional right of voters not to be treated arbitrarily in a way that could “value one person’s vote over that of another.”

But what the majority in that case refused to do was to allow the recount to continue, despite efforts by the state, under the supervision of its highest court, to do exactly that. As the majority explained:

“Upon due consideration of the difficulties identified to this point, it is obvious that the recount cannot be conducted in compliance with the requirements of equal protection and due process without substantial additional work.”

Scalia and his fellow members of the majority were unwilling to give the state time to do that additional work, despite it’s potential to determine the outcome of an election, which, you might say, is the incarnation of the democratic process that Scalia otherwise venerates.

Writing in The New Yorker on the tenth anniversary of Bush v. Gore, Jeffrey Toobin addressed this contradiction:

“Bush v. Gore would resonate, in any case, because the Court prevented Florida from determining, as best it could, whether Gore or Bush really won. (Recounts of the ballots by media organizations produced ambiguous results; they suggest that Gore would have won a full statewide recount and Bush would have won the limited recount initially sought by the Gore forces.) But the case also represents a revealing prologue to what the Supreme Court has since become. As in Bush v. Gore, nominally conservative Justices no longer operate by the rules of traditional judicial conservatism.”

For his part, Justice Scalia has told those who take issue with the majority’s ruling in Bush v. Gore to “Get over it.”

That’s what came back to me while reading Justice Scalia’s dissent in Friday’s marriage ruling. Sure, Scalia’s rejoinders can be a delight to read. But his charge that his colleagues in the marriage majority, which, after all, upheld its responsibility to say what the law is, overstepped, might be more credible if Scalia himself were to have followed his own admonition to give the people their say.

Or as Justice Scalia might say: Really?

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Law

The Supreme Court’s ruling on marriage equality

Marriage equality is the law of the land.

By a vote of 5 to 4, the Supreme Court ruled Friday that guarantees of due process and equal protection of law enshrined in the 14th Amendment to the Constitution require states to license marriages between two people of the same sex. “No longer may this liberty be denied to them,” Justice Anthony Kennedy wrote for the majority.

One can imagine the concluding paragraph of the majority’s opinion being read aloud at weddings henceforth. In it, Justice Kennedy writes:

“No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.

The judgment of the Court of Appeals for the Sixth Circuit is reversed.

It is so ordered.”

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Law

Why the Supreme Court will uphold same-sex marriage (Part 2)

A friend whose prognostications about politics I respect and who happens to be married to someone of the same sex, told me recently that he predicts that the Supreme Court, in a decision expected before the end of this month, will refrain from enshrining same-sex marriage in law but command states to recognize such marriages from other states.

That would represent a middle ground—short of finding a constitutional right to marry someone of the same sex—which, in my friend’s view, would allow the Court to continue same-sex marriage on a course toward inevitability nationwide without having to get too far in front of states.

There’s precedent for incrementalism. Two years ago the Court ruled that gay couples married in states that have legalized same-sex marriage are eligible for Social Security and other federal benefits that opposite-sex couples receive. Yet the Court stopped short of declaring a fundamental right to marry.

Still, there are reasons to think the Court may act more sweepingly this time. One is that same-sex marriage itself has become the law in more states. Since the decision in 2013, nine states have legalized same-sex marriage, bringing the total nationwide to 37. Also, 60% of Americans think same-sex marriage should be recognized by law as valid, according to the latest Gallup poll, up from 53% two years ago.

Then there’s the appeal currently before the Court. The parties agree that if the couples who are challenging the bans on same-sex marriage in four states persuade the Court to declare a constitutional right to marry, the question whether states must recognize same-sex marriages performed in other states becomes moot.

So the court could rule as my friend suggests on the first question while ordering states to acknowledge same-sex marriages performed elsewhere, as they do valid heterosexual marriages from other states. But that, as Chief Justice Roberts observed at oral argument, presents an inconsistency that may be difficult for the Court to overlook. Consider the following exchange:

Chief Justice Roberts: I think your… argument is pretty much the exact opposite of the argument of the petitioners in the prior case. The argument that was presented against them is, you can’t do this, we’ve never done this before, recognized same-sex marriage. And now you’re saying, well, they can’t not recognize same-sex marriages because they’ve never not recognized marriages before that were lawfully performed in other states.

Douglas Hallward-Driemeier (on behalf of the petitioners): Well, what—

Chief Justice Roberts: “You’ve got to decide one or the other if you win… You can’t say that [the states] are not treating the marriage as a marriage when they don’t have to do that in the first place.”

In other words, if the couples challenging the law assert that the argument by states in opposition to same-sex marriage that they have never defined marriage to include a couple of the same sex is not a reason to deny same-sex marriage now, the couples cannot then argue that states must recognize same-sex marriages from other states because they’ve long recognized heterosexual marriages from other states.

By extension, the states cannot argue that they cannot be compelled to redefine marriage and then maintain they cannot depart from their longstanding practice of recognizing opposite-sex marriages entered into elsewhere. Either tradition matters or it doesn’t, according to the chief justice’s observation.

That reality may present an obstacle to a justice who may be tempted to decide the appeal as my friend suggests. This assumes, of course, that there already are four votes in favor of striking down state laws that ban same-sex marriage. The inconsistency that Chief Justice Roberts noted may matter most to the chief justice himself or to Justice Kennedy, who together represent the likeliest fifth or sixth votes for a majority.

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Law

Why the Supreme Court will uphold same-sex marriage

A recent piece by Jill Lepore in The New Yorker sheds a fascinating light on legal arguments in support of same-sex marriage, the constitutionality of which the Supreme Court is expected to decide by late June.

Lepore traces the development of theories that underpin the Court’s rulings on matters ranging from contraception and abortion rights to marriage. As she elucidates, the battles for reproductive and gay rights turned on the Court’s finding guarantees of privacy and equal protection of the law enshrined variously in the Fourth, Fifth, Ninth and Fourteenth Amendments, the latter of which denies states the ability to discriminate.

Still, as Lepore explains, equal protection has provided the way forward for marriage equality notwithstanding the court’s precedents that find protection for both contraception and choice in constitutional guarantees of privacy.

“When the fight for equal rights for women narrowed to a fight for reproductive rights, defended on the ground of privacy, it weakened,” Lepore writes. “But when the fight for gay rights became a fight for same-sex marriage, asserted on the ground of equality, it got stronger and stronger.”

Reading that conclusion sent me to an exchange during oral argument in April between Justice Alito and Mary Bonauto, a lawyer for the Gay & Lesbian Advocates and Defenders who argued the case for the petitioners in the same-sex marriage appeal.

Amid the back-and-forth, Justice Alito asked Bonauto whether, if the Court were to overturn state bans on same-sex marriage, the justices might later have a basis for denying a marriage license to a group consisting of two men and two women.

Bonauto answered yes, that the state might reasonably question whether such an arrangement constitutes marriage, which, she noted, is between two people. A foursome also might raise concerns about consent and coercion, she added.

“Let’s say they’re all consenting adults, highly educated,” Alito pressed, referring by reference to an observation by Justice Roberts that marriage between two people of the same sex did not exist in the U.S. until two decades ago. “They’re all lawyers. What would be the logic of denying them the same right?”

Again, Bonauto replied that marriage is between two consenting adults who pledge their commitment to each other. “I assume there’d be lots of family disruption issues, setting aside issues of coercion and consent and so on that just don’t apply here, when we’re talking about two consenting adults who want to make that mutual commitment for as long as they shall be,” said Bonauto. “So that’s my answer on that.”

That may be true but what Bonauto didn’t say during the exchange, and what Lepore underscores indirectly, is that one reason for denying a marriage license to four people is that numbers, by themselves, do not raise a question of equal protection of the law. Distinctions between people based on race or sex do.

Lepore cites a decision in 2003 by the Supreme Judicial Court of Massachusetts that established the commonwealth as the first to guarantee same-sex marriage as a constitutional right. In that case, Chief Justice Margaret Marshall tied the right to marry to equal protection. As Lepore writes, describing Marshall’s opinion:

“Marshall also cited Loving v. Virginia, the 1967 Supreme Court Case that struck down a ban on interracial marriage, drawing an analogy between racial discrimination (if a black person can marry a black person but cannot marry a white person, that is discrimination by race) and sex discrimination (if a man can marry a woman but cannot marry a man, that is discrimination by sex).”

Of course, both are inconsistent with what Marshall described in her decision as “equality under law.” The observation by Lepore fills in what seemed to be missing the first time I read the exchange between Justice Alito and Bonauto.

Missing to me, that is, not from the argument. Later in the session, Donald Verrilli, Jr., the solicitor general, underscored the significance of equal protection as a legal theory that supports same-sex marriage. As it happens, the solicitor general advanced only that theory, reasoning that it alone provides a basis for the Court to uphold same-sex marriage. As Verrilli explained:

“We think… this issue really sounds in equal protection, as we understand it, because the question is equal participation in a state-conferred status and institution. And that’s why we think of it in equal protection terms… what these gay and lesbian couples are doing is laying claim to the promise of the Fourteenth Amendment now.”

The argument seems insurmountable based on the history that Lepore delineates. It also seems likely to be the basis upon which a majority of justices will decide the appeal.