From the Austin American-Statesman: Texas conservatives launch next fight on religious liberty

More evidence of Texas' traditionalistic political culture. This sets up a constitutional conflict: The First Amendment vs the Equal Protection Clause.

- Click here for the article.

Conservative Republican senators and representatives Wednesday unveiled a dozen bills designed to protect religious practice, including efforts to allow Christians to opt out of serving gay couples if same-sex marriage violates their beliefs.

Unlike the 2015 session, when efforts to approve broad constitutional amendments to protect religious practice fell far short, the bills filed thus far focus on specific issues and were the result of a concerted effort to “make sure that religious liberty bills are at the forefront this session,” said state Rep. Matt Krause, R-Fort Worth.

“Religious liberties are the bedrock of what our state and our country were built on, and we want to make sure we are protecting those, preserving those and advancing those liberties as much as possible,” Krause said during a Capitol news conference.

Many of the bills have already attracted spirited opposition from critics who say they would authorize state-sanctioned discrimination.

“Religious liberty protections allow us to worship freely and to be vocal about what our religious beliefs are,” said Chuck Smith with Equality Texas. “But religious liberty does not allow me to exempt myself from laws or allow me to use my religious beliefs against other people. That’s discrimination, that’s not religious liberty.”

“There’s no discrimination here,” Krause said. “We’re just trying to open it up to where people can continue to work and do what they love to do in the way that they want to do it.”

One of the farthest reaching proposals, known as the First Amendment Defense Act, would not permit state or local governments to penalize people for acting on religious beliefs opposing gay marriage.

From TribTalk: With LGBT issues, Abbott must balance base and businesses

For our look at parties in Texas. State Republican parties are conflicted in their response to last year's gay marriage ruling. Business interests want to pull them in one direction, religious interests in another.

- Click here for the article.

The politics of the Texas GOP leadership’s immediate and no doubt well-planned responses to the court’s validation of same sex marriage echoed the responses by much of the southern wing of their party, and they provided a glimpse of things yet to come in Texas once national politics stabilize after the November elections. But these responses, and their underlying approach to the problem, are not without their share of difficulties.

The recent resistance of GOP-led state governments in Mississippi and North Carolina to local efforts to prevent discrimination against gay and lesbian residents has been met by a very public backlash from corporate actors in sectors ranging from professional sports leagues and banks to tech giants and manufacturers. Their repudiation has highlighted the increasingly familiar friction within the GOP between its socially conservative voting base and the business interests that in many cases play an outsized role in the party’s donor class.

The governors of these and other states have discovered that businesses looking to recruit and retain educated, cosmopolitan employees; to sell their products and services to the broadest possible base of customers, especially young ones; and to avoid pressure from gay and lesbian civil rights groups don’t want to be associated with policies perceived as being discriminatory against the LGBT community. Bigotry is bad for business. The Texas Association of Business has been a loud warning voice on this front, underlining the economic — rather than the ideological — nature of these concerns for many otherwise solidly Republican interests in the state.

This resistance notwithstanding, it is all but certain that the lieutenant governor, his allies and their fellow travelers in the Legislature will resume efforts to pass “religious protection” measures when the next legislative session cranks. These efforts will pose challenges to Republican leaders attempting to keep the disparate elements that make up their party within the GOP tent — especially Governor Abbott.

USA Today: Religious liberty vs. civil rights: A balancing act

Rights and liberties conflict. Here's the latest: Recent push backs against the expansion of civil rights - notably to gays and lesbians - have been oriented around religious liberty.

- Click here for the article.

Arizona Gov. Jan Brewer may have ended the latest controversy in her state by vetoing a "religious freedom" bill that threatened gay men and lesbians, but the nation's legislatures and courts are just getting started.

While religious liberty remains a "core value" in Arizona, Brewer said Wednesday, "so is non-discrimination." And therein lies the balancing act that's at the root of several other disputes.

Can the Obama administration force for-profit businesses to provide health insurance for their employees that includes forms of contraception the owners equate with abortion? That case comes to the Supreme Court next month.

Can a New Mexico photographer, an Oregon bakery and a Washington state florist refuse to provide services to same-sex weddings? Those questions are pending before courts and could soon go to voters as well.

Can several states from Mississippi in the South to Utah in the West enact laws similar to the one Brewer vetoed in Arizona, setting up potential conflicts between religious liberty and other freedoms?

The answer isn't simple. Congress and the states often carve out exceptions for religious beliefs. The Supreme Court has consistently made room for religious exercise. And unlike race and gender, sexual orientation is not a protected class — yet.

However, for a religious liberty bill such as Arizona's to pass the smell test, it must show a compelling interest on the part of those who want to flex their religious muscles, and it must not impose undue costs or burdens on others. That is where many such efforts collapse.

For more:

- Redefining Religious Liberty: The Covert Campaign Against Civil Rights.
- It’s not as simple as homophobic thugs vs. civil rights in Indiana.
- Religious Freedom vs. Compelling State Interests.

County Clerks are in the news

Obviously the reason is that some are claiming that issuing same sex marriage licenses violates their religious beliefs, and the legal questions that raises. The national government is telling them to do one thing - the state government is trying to give them cover to not do it.

I'll provide some detail on the position since its suddenly topical, but to catch up on the specifics of the controversy, click on these:

- Texas AG tells clerks they can flout Supreme Court ruling on gay marriage.
- Court clerks can't take licenses with their duties.
- There Are Still at Least 60 Texas Counties Not Issuing Same-Sex Marriage Licenses.
- Gay Couple to Sue Hood County Clerk Over Marriage License.
- Texas county clerks felt betrayed by Texas leaders on gay marriage, emails show.
- 5th Circuit tells courts to issue same-sex marriage rulings.
- Gay Marriage Issue Roils Texas Town.

A couple long items related to gay marriage

The first presents a conservative argument in favor of gay marriage.

- Not Whether but How: Gay Marriage and the Revival of Burkean Conservatism.

It's based on what we called Burkean Conservatism in the section on ideology. It highlights the importance of institutions that evolve organically on providing stability in society. Here's a taste of the argument:

Now, for Burkean conservatives same-sex marriage is a particular conundrum because it presents so many competing narratives and so many uncertainties. In the Jonathan Rauch narrative, for example, same-sex marriage is a Burkean no-brainer. It is good for social order because it provides gay couples with caregivers and helps them build stable families that are integrated into their communities. Why, after all, would anyone want same-sex couples to raise their children out of wedlock? How can society possibly benefit from denying these couples (and their kids) the manifold increases in health, economic security, and happiness which marriage brings? Why not tie them to each other and their communities? Moreover, in the Rauch narrative, gay marriage also advances the causes of equality, liberty, and individual dignity. And still more: given the ways in which marriage has changed over the past century, gay marriage, in the Rauch view, is a natural, bottom-up evolution, whose deep social logic is revealed in the multiple ways in which gay couples are already acting and being treated as if married. On this narrative, what is not to like?

The second article is a simple look at the political process.

- How Gay Marriage Became a Constitutional Right.

The author traces the history of the effort to establish marriage as a fundamental right that cannot denied to people based on sexual orientation without a compelling reason to do so. In 1970 it was assumed that this could be done. As of last week, it could not. Again, a chunk of the argument:

In the span of 43 years, the notion had gone from ridiculous to constitutionally mandated. How did that happen?

I put the question to Mary Bonauto, who arguedObergefell before the Supreme Court in April. A Boston-based staff lawyer for Gay and Lesbian Advocates and Defenders, Bonauto won the Massachusetts case that made the state the first to allow gay couples to wed in 2004. In 1971, she noted, sodomy was a crime in every state, gays were routinely persecuted and barred from public and private employment, and homosexuality was classified as a mental illness. “We were just as right then as we are now,” she said. “But there was a complete lack of understanding of the existence and common humanity of gay people.”

What changed, in other words, wasn’t the Constitution—it was the country. And what changed the country was a movement.

Friday’s decision wasn’t solely or even primarily the work of the lawyers and plaintiffs who brought the case. It was the product of the decades of activism that made the idea of gay marriage seem plausible, desirable, and right.

6th Circuit upholds state gay marriage bans

. . . which creates a conflicts the Supreme Court can sink its teeth into. Remember that earlier this semester the court opted to not review appellate court cases that all overturned bans on same sex marriage. The appellate courts were in unison, until now.

Background:

- Appeals court upholds gay marriage bans, reversing trend.
- Gay marriage is going to the Supreme Court — and it's probably going to win.

Attorney General Abbott will appeal yesterday's federal rule overturning the state's ban on gay marriage

This was to be expected.

Politico provides detail:

Texas Attorney General Greg Abbott, a Republican running for governor, will appeal a Wednesday ruling striking down the Lone Star State’s ban on gay marriage.

In a statement, Abbott announced that same-sex marriage is “an issue that will ultimately be resolved by a higher court. Texas will begin that process by appealing today’s ruling to the Fifth Circuit.”

“The U.S. Supreme Court has ruled over and over again that states have the authority to define and regulate marriage,” said Abbott, who is set to face off with Democratic state Sen. Wendy Davis in the deep-red state. “The Texas Constitution defines marriage as between one man and one woman. If the Fifth Circuit honors those precedents, then today’s decision should be overturned and the Texas Constitution will be upheld.”

His comments came after a ruling earlier in the day from a federal judge in Austin.

“This is an issue on which there are good, well-meaning people on both sides,” Abbott said.

The last remarks seems telling to me - an increasing group of Republicans seem to believe (1) that acceptance of gay marriage is growing among Republicans so they may have to prepare ground work for a switch on the issue, and (2) the courts will mandate this change anyway so it might be worth getting ahead of it. Having the court overturn Texas laws - including part of the Texas Constitution - relieves Texas of the political dirty work associated with changing it. It takes it off their hands - which simultaneously gets rid of the issue and gives them a target to blame for the change.

A federal judge in San Antonio declares Texas' ban on same sex marriage to be unconstitutional

The Judge is Orlando Garcia who serves in the US District Court for the Western District of Texas.

- Click here for his website.

I cant the decision right now, and there's not much on details yet.

Here's what the Washington Post has to say:

A federal judge has struck down Texas’ ban on gay marriage, but is leaving it in place pending a ruling by an appeals court later this year.

Judge Orlando Garcia issued a preliminary injunction on the ban Wednesday, then suspended his ruling. Two gay couples had challenged the state’s constitutional amendment and a longstanding law banning gay marriage.

Under federal court rules, a judge may suspend a law if he or she believes the plaintiffs have a strong case and will suffer if the law is enforced.

Garcia said his injunction against Texas enforcing its ban will take effect once an appeals court has a chance to rule on the issue.

The ruling is the latest in a recent series of victories for gay rights activists.

This is from the Houston Chronicle:

A federal judge in San Antonio on Wednesday declared Texas' ban on gay marriage unconstitutional. The Lone Star state's refusal to recognize out-of-state same-sex marriages is also unconstitutional, he ruled.

U.S. District Judge Orlando Garcia, however, also issued a stay, meaning the bans remain in effect for the time being.

Two gay couples have sued the state aiming to overturn the bans. One lesbian couple had to go to Massachusetts to get married, and they want Texas to recognize the union. A second couple had a courtship of 17 years and say they want to get married here in their home state.

Garcia ruled that the couples met the criteria for a preliminary injunction, including the likelihood of winning the suit.

Nationwide, seven states have struck down same-sex marriage bans, in whole or in part, in the past 65 days. But every state, including now Texas, has a stay in effect leaving the laws in place until the issue is visited by the U.S. Supreme Court.

The US and Texas militaries conflict over offering benefits to same-sex spouses.

This is the same conflict we see in other areas regarding same-sex issues.

Following a recent Supreme Court decision overturning part of the Defense of Marriage Act, the Obama Administration judged that a rule banning same sex spouses from receiving benefits could not be enforced. So VA's across the country - including Texas and other states banning same-sex marriage - have to provide them.

But the Texas Military Forces (yes there is such a thing) do not - and cannot according to Texas statutory and constitutional law. So any of their members with same-sex spouses cannot receive benefits in Texas facilities. They can received them in federal facilities.

There's a hitch however. When called to active duty, the Texas Military falls under control of the federal government, at which same-sex spouses have to be provided benefits. But the conflict remains, and a handful of Democratic legislators in the state have asked the attorney general to reconcile state and federal law.

More for 2306's look at federalism and the conflict that stems from it.

Story in the Texas Tribune.

U.S. House Democrats from Texas among those not supporting gay marriage

Most Democrats, and a small handful of Republicans, have publicly shifted from opposition to support of gay marriage. Here's a graph that shows how quickly this change has happened in the Senate.



But the Houston Chronicle - and the Hill - reports that three Texas Democrats are among a small handful of party members that are not shifting theie positions. This includes are representative Gene Green.

Gay marriage might be for Democrats the same type of issue immigration reform is for Republicans: An issue that might have the support of the general population, but id passionately opposed by the segment of the electorate that really matters: Primary voters.

Which justices voted to hear the gay marriage cases?

As we discussed earlier on in 2305, it takes four justices in order for a case to be heard by the Supreme Court. Given that some justices - notably Anthony Kennedy - seemed to suggest that the Proposition 8 case shoudl not have been accepted by the court, questions arose about which justices voted to hear the case and why.

The NYT speculates:

. . . When the justices gathered for their private conference on Dec. 7, they had many choices.

For starters, it was virtually certain that they would agree to hear one of several challenges to the federal Defense of Marriage Act of 1996. Two federal appeals courts had struck it down, and the court almost always reviews decisions from lower courts invalidating federal laws.

The question there, moreover, was the relatively modest one of whether the federal government must provide benefits to same-sex couples married in states that allow such unions. The case did not directly concern whether there is a right to same-sex marriage in other states.

So the justices chose one case on the 1996 law, United States v. Windsor, No. 12-307.

They then confronted a second, much more ambitious case, Hollingsworth v. Perry, No. 12-144, concerning whether the Constitution guarantees a right to same-sex marriage. Most observers thought the court would hold the case while it worked through one on the 1996 law, and some thought it might deny review, letting stand an appeals court decision that had struck down Proposition 8.

Instead, the court granted review in the case. That was a surprise and a puzzle. Who had voted to hear it?

One school of thought was that the court’s four liberals were ready to try to capture Justice Kennedy’s decisive vote to establish a right to same-sex marriage around the nation.

That theory was demolished in the courtroom as one liberal justice after another sought to find a way to avoid providing an answer to the central question in the case. The decision to hear the case, it turned out, had come from the other side.

Justice Scalia, almost certainly joined by Justices Clarence Thomas and Samuel A. Alito Jr., apparently made a twofold calculation: that their odds of winning would not improve as same-sex marriage grows more popular and more commonplace, and that Justice Kennedy, who is likely to write the decision in the case concerning the 1996 law, would lock himself into rhetoric and logic that would compel him to vote for a constitutional right to same-sex marriage in a later case.

It is not that the conservatives felt certain they would win. It is that their chances would not improve in the years ahead.

That leaves the question of the fourth vote. The most likely answer is that it was that of Chief Justice John G. Roberts Jr., though he did not sound at all pleased on Tuesday to have the case before him.

There is also a chance that the fourth vote came from Justice Kennedy himself, and his very questioning provides support for that theory.

“I just wonder,” he said, sounding a little plaintive and a little angry, “if the case was properly granted.”

Regarding US v Windsor

Click here for the written transcript of yesterday's oral argument, and here for the audio file.

Here are the issues presented in the case:

(1) Whether Section 3 of the Defense of Marriage Act (DOMA) violates the Fifth Amendment's guarantee of equal protection of the laws as applied to persons of the same sex who are legally married under the laws of their State; (2) whether the Executive Branch’s agreement with the court below that DOMA is unconstitutional deprives this Court of jurisdiction to decide this case; and (3) whether the Bipartisan Legal Advisory Group of the United States House of Representatives has Article III standing in this case.

The NYT provides an overview. They note - as do many - that the likely decisive Justice Kennedy focused on federalism question, not equal protection questions. Does the federal government have the power to decide what marriage is? The states clearly do because this falls under the reserved powers, especially the police powers. Has the federal government intruded on this power?

Some analysts suggest this means the case is likely to be decided on federalism grounds, not equal protection, which means it might not be quite the victory gay and lesbian groups were hoping for. The equal protection clause will not be made applicable to sexual orientation - as it is to race, gender, age and the rest.

Here's the Wall Street Journal's Live Blog of the DOMA arguments.

Here's Andrew Sullivan's analysis of the oral arguments.

And here's commentary from people smarter than me:

Tom Goldstein points out that a federalism ruling in Windsor makes the case for the plaintiffs in Hollingsworth stronger. California can decide for itself whether marriage can be same sex or not, and Proposition 8 said it couldn't. Presumably that means that the equal protection argument would not work. Unless the court argues the plaintiffs lack standing.

Jeffrey Toobin argues that the Supreme Court is not central to the direction same - sex marriage is heading, and the justices know it. He highlights the following: Toward the end of the argument, Roberts asked Roberta Kaplan, the lawyer for Windsor, “You don’t doubt that the lobby supporting the enactment of same sex-marriage laws in different states is politically powerful, do you?” Kaplan—somewhat improbably —denied it. Roberts fought back: “As far as I can tell, political figures are falling over themselves to endorse your side of the case.”

Andrew Cohen is concerned that not enough was said in the oral arguments about the history of anti-gay discrimination in the US. Thsi will not bode well for this court's reputation: "I think history will judge the Supreme Court, and by extension the rest of us, by what was not argued this week. The Court did not confront and condemn the discrimination at the core of these laws. It did not signal a willingness by the judiciary to stand up to the tyranny of the majority. And it did not even minimally force the laws' defenders to justify with facts their disparate treatment of same-sex couples. It was instead a court openly looking for a way out, which, in the end, makes you wonder what kind of court it is at all."

United States v. Windsor

Here's a link to Scotusblog's page on the DOMA case argued yesterday before the Supreme Court. More to follow.

For what its worth...

The Westboro Baptist Church filed an amicus brief in the Prop 8 case. Enjoy.

Walter Dellinger's Amicus Brief arguing that Hollingsworth lacks standing to sue in favor of Proposition 8

Click here for the brief. 

From the Monkey Cage: 9 Things You Should Read about the Politics of Same-Sex Marriage

The smart guys at the Monkey Cage have complied a list of readings if you want to understand the political issues associated with same sex marriage.

Sometimes winning is losing

Especially with Supreme Court cases. A decision in favor of gay marriage could actually set the cause back. The author support gay marriage, but does not want the court to overturn Proposition 8 urges the court to practice restraint and let this issue play itself out through the political process:

The Prop 8 case, Hollingsworth v. Perry, poses thornier questions about political equality, and could have much broader consequences, because it calls into question the rights of all states to limit marriages to unions between men and women. I fully support marriage equality. But, strange as it may sound, I believe that in the Prop 8 case, the court should decide not to decide the gay marriage issue at all. The proposition has already been struck down by federal judges at the trial and appellate levels, the governor and attorney general of California have refused to defend the proposition and the parties seeking the Supreme Court’s review lack the legal capacity, or standing, to pursue the case.

If the court decides to resolve the merits, it should rule that the Constitution commands recognition of same-sex marriage on equal terms with opposite-sex marriage. A decision to the contrary would be a modern-era Plessy v. Ferguson, the notorious 1896 decision affirming segregation as “separate but equal.” Correspondingly, a decision ruling Prop 8 unconstitutional would be the Roberts court’s Brown v. Board of Education, the 1954 decision that struck down racial segregation in schools. The legal and moral choice should be clear.

But the Brown analogy should give us pause. Same-sex marriage is legal in nine states and the District of Columbia, but is the country ready for a decision requiring all 50 states to recognize such unions immediately? Brown triggered a notorious backlash, in both the South and the North, and its impact was blunted by demographic changes and later court rulings, leading to what the education scholar Gary A. Orfield has called the “resegregation” of American schooling.

Or consider Roe v. Wade, the 1973 decision that protected women’s right to have abortions. Justice Ruth Bader Ginsburg, an unabashed defender of abortion rights, has criticized Roe for imprudently intervening in that debate, at a time when the idea of abortion rights was already gaining ground at the state level. The Roe decision galvanized the anti-abortion movement, with political impacts that still linger.

In the long run, national recognition of same-sex marriage is inevitable. Same-sex marriage rights, at first imposed by courts, have now been recognized by state legislatures and prevailed in all four states where they were on the ballot in last year’s election. Young people overwhelmingly support it, and public opinion has shifted on this issue faster than on almost any other social issue in history. It is only a matter of time before all state laws reflect that view.

In the Supreme Court today: Hollingsworth vs. Perry

As we discussed previously, this case is about the constitutionality of California's Proposition 8, which was an initiative passed by the California electorate in November 2008 that stated that "only marriage between a man and a woman is valid or recognized in California."

This was overturned in August 2010 by a U.S. District Judge that found the proposition to violate the 14th Amendment's guarantee of equal protection. The case went through the 9th Circuit Court for a couple years before it was determined that the District Court decision should be upheld, but the decision was not unanimous.

- Click here for a brief description of the process the case went through on its way to the Supreme Court.
- And click here for the process thus far in the Supreme Court.

According to ScotusBlog, these are the two questions the Supreme Court is charged with considering: (1) Whether the Equal Protection Clause of the Fourteenth Amendment prohibits the State of California from defining marriage as the union of a man and a woman; and (2) whether petitioners have standing under Article III, § 2 of the Constitution in this case.

A quick word on "Hollingsworth" and "Perry."

Dennis Hollingsworth is the named petitioner. He, along with a few others, is the person who lost the previous cases and asked for the Supreme Court to review the case by requesting the court file a writ of certiorari. He and the others were affiliated with the groups that helped organize the original inititiatve. The question of standing resulted because the state of California has decided to not argue in favor of the law in court, so it is not clear that the petitioners have suffered a harm that allows them to take a case to the court.

This helps solve some confusion regarding the court case because two others - Perry v. Schwarzenegger and Perry v. Brown - were batted around for a while. Each refers to one of California's recent governors, but since neither decided to pursue the case, they were each dropped, but Holingsworth and Company were allowed to pick it up.

Kristen Perry is the named defendant who was married to her partner in 2004 when San Francisco briefly recognized them prior to the 2008 ballot inititiative. Aftee they received their license they were informed that the marriage had been voided. After passage of Proposition 8 they joined a challenge to it organized by the American Foundation for Equal Rights.

- Click here for a look at these and other players in the case.
In 2305, we've mentioned several times that the equal protection clause has yet to be used, by the Supreme Court, to resolve disputes over unequal treatment due to sexual orientation. They've done their best to avoid it, but no longer. This could easily turn into one the courts more important decisions, depending on what they rule and how expansively they make their decision. Will it only affect California? Or only the states that have ruled in favor of same sex marriage? Or possibly all the states?

Stay tuned.

Attitudes continue to shift on gay marriage

The Washington Post reports on a poll which shows that 58% of American now support gay marriage. The expected divide exists between liberals and conservatives and Democrats and Republicans. What tips the scale is self described moderates and Independents. Both groups support gay marriage by comfortable margins.

A very large gap exists between seniors and people younger than 30. 44% of seniors support it while 81% of people under 30 do. Its easy to see where this is heading.

Heightened Scrutiny

One of the more important parts of the section on civil rights concerns the different tests used to determine whether the equal protection clause applies to a given discriminatory act. In some areas - drinking ages for example (and as you well know) - discriminatory decisions can be made and enforced. The question is always whether there is a justifiable reason why a particular distinction can be made between individuals based on race, gender, age or whatever.

As the notes show, standards vary. It is easier to for the law to discriminate based on age than gender, and gender than race. Each is covered, respectively, by rational basis review, intermediate scrutiny, and strict scrutiny. The controversy with gay marriage will require the courts - I believe for the first time, though I do not know for certain - to determine what standard would apply to sexual orientation. The lower courts have used intermediate scrutiny, bu the term "heightened scrutiny" has also been used to refer to this level of review. There seems to be a debate over whether intermediate and heightened review are the same thing.

Assuming they are, then the courts may determine that laws that impose a difference between people on the basis of sexual orientation "must advance an important governmental interest, the intrusion must significantly further that interest, and the intrusion must be necessary to further that interest."

So what is the interest the bans on same sex marriage promote?

For further reading:

- Will the Supreme Court be left behind on Gay Marriage?