P.S. More thoughts from Eli Lehrer at Huffington Post (“Gay marriage is increasingly accepted precisely because its results, to date, have been good for society. Polyamory on a large scale would have negative short-term results and that’s a good reason to think it’s just not going to happen.”).
I’ve got a letter in the WSJ:
In claiming that “Gay Marriage Collides With Religious Liberty” (Houses of Worship, Sept. 20), Mollie Ziegler Hemingway conflates the effects of antidiscrimination law with the effects of recognizing same-sex marriage. Many of the conscience cases she cites involving private businesses arose in jurisdictions that don’t recognize gay marriage, and most would reach the same legal result so long as local antidiscrimination laws remain in place, whether or not the law on marriage has changed….
I go on to note that anti-discrimination law for years now has been obliging some small businesspeople to enter business dealings inconsistent with their private conscience, as when bed and breakfasts are obliged to accommodate unmarried cohabitants, or owners of print or video-duplication shops are obliged to duplicate literature promoting causes they abhor, whether religious or secular. So far as I can tell, we libertarians are the only group that has consistently raised alarms over the years about this coercive effect; most social conservatives have tended to ignore the area until quite recently, and of course the typical position of modern progressives is to see few if any real issues of concern here. Mollie Ziegler Hemingway, I should note, says I wrongly assumed that she writes from outside the libertarian tradition; Twitter exchange on that here.
Some recent links on these controversies: Elane Photography (New Mexico) and followup; Oregon cake bakers; Arlington, Va. video-duplication shop, first, second, and third posts. I wrote about the relations between religious liberty, libertarianism, and social conservatism here (more, and yet more on Twitter with columnist Tim Carney). More: Bainbridge, Stephen Miller/Independent Gay Forum.
In Gresham, Oregon, it’s anti-discrimination law 1, free association 0 as a family business that cited religious beliefs in declining to make a wedding cake for a lesbian couple, and was hit by an enforcement action as a result, shutters its retail shop in favor of baking from home. Oregon does not recognize same-sex marriage, which (as in the parallel New Mexico wedding photographer case) makes clear that the intrusion on individual liberty here arises from anti-discrimination law as applied to so-called public accommodations, not from marriage law. [Shackford, Reason] Related: “Religious liberty depends on right-of-center gay marriage advocates” [Stephen Richer, Daily Caller]
- Litigious anti-feminist loses case alleging that Manhattan club’s expensive bottle service for old men, free drinks for young women violate bias law [NY Mag, NYDN]
- “Hospital cannot ban all service animals from psych ward, federal judge rules” [ABA Journal] “New Yorkers use bogus ‘therapy dog’ tags to take Fido everywhere” [NY Post via Althouse]
- Canada: foes seek to prevent opening of evangelical law school in B.C. [CBC, Jonathan Kay/National Post, Globe and Mail editorial, TaxProf]
- Related: broad religious exemptions in anti-bias law make good complement to same-sex marriage [Ilya Shapiro/Cato, my take] Gay couples must also live and let live, or else liberty is in for some cake wrecks [Bart Hinkle, Richmond Times-Dispatch]
- Hiring based on IQ testing: widely regarded as legally suspect, but mostly tolerated in practice? [Bryan Caplan]
- “‘Borgata Babes’ lose weight bias suit; judge says casino policy was legal” [ABA Journal, earlier]
- 2009 expansion of federal hate-crimes law headed for a court challenge? [Josh Gerstein, Politico]
Cato’s Caleb Brown interviews me on the immediate legal implications of this week’s same-sex marriage cases. Because we spoke the day after the ruling, some of my comments have already been outrun by events; for example, it took only a day or two, not weeks, to overturn the Ninth Circuit stay and begin holding marriages. And the Obama administration has now declared that it will extend federal recognition to all lawfully issued marriage licenses even if not recognized in the state of a couple’s domicile, which had been one of the two biggest immediate practical uncertainties. (The other is the question of retroactive effect: will taxpayers, for example, be allowed to amend filings for past years?) Given the recognition of marriage licenses obtained outside a state of domicile, “States like Texas and Florida will begin noticing — or perhaps they won’t notice — that some of their citizens are getting some federal benefits that somewhat foil their state policy.”
A link to the podcast is here.
I’m going to liveblog some reactions to today’s expected marriage rulings, below the line. To see more recent comments, refresh (it won’t auto-refresh, unlike the liveblogs at places like SCOTUSBlog).
* * *
- The American Illness: Essays on the Rule of Law, new book from Yale University Press edited by Frank Buckley, looks quite promising [Bainbridge]
- So the New York Times gets spoon-fed “confidential” (and disappointingly tame) documents from the old Brady Campaign lawsuits against gunmakers, and then nothing happens;
- IRS commissioner visited White House 118 times in 2010-11. Previous one visited once in four years. Hmmm… [John Steele Gordon, more] (But see reporting by Garance Franke-Ruta and commentary by Yuval Levin.) Did politics play role in 2011 Gibson Guitar raid? [IBD]
- Supreme Court of Canada: “Judges may ‘cut and paste’ when writing their judgments” [Globe and Mail]
- Lack of proper land title and registration holds Greece back [Alex Tabarrok]
- I try not to clutter this blog with links to memoir-ish personal pieces of mine, but if you’re interested in adoption, or in how America manages to be at once the most conservative and the most socially innovative of great nations, go ahead and give this one a try [HuffPost]
- Big Lodging and hotel unions don’t like competition: New York City’s war against AirBnB and Roomorama [John Stossel, Andrew Sullivan]
The University of Minnesota law professor and Volokh Conspiracy contributor sorts out claims that the pending bill in his state threatens religious liberty. [St. Paul Pioneer Press]
Okay, “get the government out of marriage” makes a nice slogan, with a libertarian-sounding ring to it. But what happens on contact with legal reality, where countless existing legal relations are predicated on marriage’s functional role as an on/off switch as opposed to a sliding continuum of statuses customized by private contract? [Scott Shackford, Reason]
Also on the marriage question, I have a new blog post at Cato recapitulating why social conservatives are deluding themselves if they imagine the GOP can use the issue to harvest many new black votes.
Yet more: video of a Friday Cato panel in which I join Mary Bonauto of GLAD, Ilya Shapiro of the Cato Institute, and Kathryn Lehman of Holland & Knight; I talk about how public opinion on same-sex marriage is increasingly boxing in the national Republican Party, and how it might bid to get out of the box.