Religious belief doesn't trump law

By Frank Moraes 

The United Church of Christ (UCC) has been performing same-sex marriages since 2005. So they decided to pursue a legal challenge to North Carolina's ban on same-sex marriages. They are arguing that the state is violating their freedom of religion. That is too delicious not to talk about.

But I think the case is very clear. People's rights to free expression do not trump laws. The Rastafarians believe very much that they should be allowed to ingest cannabis, but that has never stopped one of them from being imprisoned for that "crime." So I don't think that the UCC has a religious right that trumps North Carolina law. Of course, there may be details in the law that would push me in the UCC's direction. But as it stands, it seems pretty simple.

I am just being consistent here. I also think all of these religious based attacks on Obamacare should have been thrown scornfully out of court at the very beginning. And there are lots of similar cases, like where a Christian pharmacist claims he has the right not to fill prescriptions for birth control pills. The Rastafarians have a far better claim to their drug rights than do hobby stores who want to micromanage their employees' healthcare coverage.

But given all the time and efforts that conservative Christians have put into destroying Obamacare using such arguments, you would think that they would be in support of the UCC. After all, it is a matter of religious liberty. It shouldn't matter that it is in the name of a specific policy that they don't accept. But, of course, it does matter. North Carolina Values Coalition (NCVC) executive director Tami Fitzgerald said in a press release that because a majority of the voters in the state voted for the law, the UCC should have no rights. She then went on to talk about how she was the ultimate arbiter of what Christianity is and that the UCC is just wrong.

Of course, when Hobby Lobby was before the Supreme Court, Fitzgerald was firmly behind it, urging people to Pray for Hobby Lobby. But I'm sure that is not the only bit of hypocrisy that Fitzgerald and the NCVC have in store. Right now it is all about the fact that 61% of the electorate of North Carolina voted to ban same-sex marriage. As soon as the people become in favor of same-sex marriage, she will be using a different argument. And it won't be long. Last year, the people of North Carolina were against same-sex marriage by a tiny 45%-44% margin.

We'll see what happens to this case. I wouldn't be at all surprised if conservative judges find that a same-sex marriage ban did not violate the UCC's religious rights even while they find hitherto unknown religious rights of hobby stores. Luckily, the same-sex marriage issue will be resolved by the people very soon. 

(Cross-posted at Frankly Curious.)

Is the fight for marriage equality really over?

By Mustang Bobby

As noted in the Sunday Reading yesterday, Josh Marshall at TPM is seeing the marriage bower at the end of the tunnel. His optimism is based on the rulings by the 10th Circuit Court in Utah’s case, the ruling in Ohio that allowed for same-sex spouses married in other states to be listed as survivors on death certificates, and the 50% increase of the number of states allowing marriage equality since last summer.

In this sense – and not to be overly dramatic – it’s almost reminiscent of the Fall of the Berlin Wall – when actions on the ground, literally on the ground, swept a lot of details and technicalities before it and presented authorities with faits accompli,which they were likely to accept eventually, much more rapidly than they would have preferred.

So yes, this will percolate a bit, as they say. Decisions will come up through the individual Circuits. In pretty short order, the Supreme Court will be forced to revisit the issue. And their logic in the Windsor case will join forces with the march of public opinion to make it almost impossible for them not to issue a broad ruling which invalidates every gay marriage ban in country.

I think everybody, on each side of the issue, has realized for the past two or three years that it is only a matter of time until this happens. But the decade or so of different policies from state to state now appears quite unlikely. I don’t want to end without noting that a lot of lawyering remains to be done. Nothing is ever certain. And even when it’s all but certain it’s still not easy. But I see little way to look at the last week and not conclude that gay marriage will be the law of the land in every state in the country in the near future. Probably during the Obama presidency and maybe sooner still.

I wish I could share his outlook, but I don’t, despite the fact that I fervently hope he is right and I would love to be proved wrong. But I’m old enough — barely — to remember the impact ofBrown vs. Board of Education and how long it took for school desegregation to become the true law of the land. That decision was handed down in 1954. It was a sweeping decision that invalidated every school segregation law in the nation, be it in Alabama or Massachusetts. But it was a full twenty years, through struggle, strife, riots and political upheaval before the public schools were integrated, and to this day there are still remnants of de jure segregation as seen in the crumbling schools in the inner cities as compared to their shining counterparts in the wealthy suburbs of the same school district.

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Marriage in Minnesota

By Mustang Bobby

Clad in red and black gowns, Margaret Miles and Cathy ten Broeke stood facing each other, smiling through tears in the white-marbled, Minneapolis City Hall rotunda as the clock ticked toward midnight.

Seconds later, Minneapolis Mayor R.T. Rybak declared: “Margaret and Cathy, by the power now finally vested in me, by the laws of the people of Minnesota, we hereby declare Margaret and Cathy legally married. You may now kiss the bride.”

The two kissed as hundreds of guests erupted in cheers and applause, amid a hall filled with fresh flowers, live music and cases of donated champagne.

From Minneapolis and St. Paul to Duluth and Crookston, dozens of gay and lesbian couples tied the knot in the pre-dawn hours Thursday as Minnesota became the 13th state to legalize same-sex marriage. Couples and guests gathered in city halls, a conservatory, the Mall of America, even a bar to be among the first to usher in a new era of marriage equality in Minnesota.

“We are happy to recommit to one another every day, but the opportunity to be the symbol for the community is unequaled,” a beaming Miles said.

Mazel tov and best wishes to each and every one of them.

Oh, and can’t forget about Rhode Island.

(Cross-posted at Bark Bark Woof Woof.)

Constitution just happens to agree with Scalia's bigotry

By Frank Moraes

Adam Serwer wrote a great article this morning, Here Are the 7 Worst Things Antonin Scalia Has Said or Written About Homosexuality. Now, we all know that Scalia is a vile human being. But after reading Serwer's list, it was clear to me what I've long suspected: Scalia is no sober justice that his position implies.

What comes through in all of these comments is that Scalia isn't against gay rights out of any legal principle; he is just against homosexuality (he's a Catholic) and thus votes against gay rights. Think: Rob Portman before his son came out of the closet. And that shows that he is no kind of judge; he is, as Dan Savage said, just a partisan hack.

In his dissent on Lawrence v. Texas, the case that found sodomy laws unconstitutional, Scalia said such laws didn't violate the right to equal protection. He wrote, "Men and women, heterosexuals and homosexuals, are all subject to [Texas'] prohibition of deviate sexual intercourse with someone of the same sex." But Serwer noted that this was a long repudiated line of reasoning:

That should sound familiar: it's the same argument defenders of bans on interracial marriage used to make, arguing that the bans were constitutional because they affected whites and blacks equally.

But that just shows why Antonin Scalia is exactly the sort of person who should not be given the power that goes with sitting on the Supreme Court. He is not even looking at the law in these cases that collide with his personal moral code. Instead, he just uses his intelligence and erudition to justify his prejudices. And that is why he will find that both Prop. 8 and the Defense of Marriage Act are constitutional. Through ever more complicated and far-fetched legal reasoning, he will find—What a surprise!—that the constitution does indeed justify his long held personal bigotry. That's a constitutional originalist for you!

(Cross-posted at Frankly Curious.)