Tag: same-sex marriage

The Right to Earn a Living Deep in the Heart of Texas

The same day three weeks ago that the Supreme Court ruled on same-sex marriage (Obergefell v. Hodges), our friends at the Institute for Justice claimed a strong victory in favor of individual rights and economic freedom in an important case before the Texas Supreme Court (a.k.a. SCOTEX).

In Patel v. Texas Department of Licensing and Regulation, the court was faced with a state constitutional challenge to a licensing requirement that hair threaders acquire cosmetology licenses – to the tune of nearly $9,000 and 750 hours – when such classes “are not related to health and safety or what threaders actually do.”

Marriage and the Court, Yesterday and Today

As we await a Supreme Court decision on gay marriage, we take note that 48 years ago today the Court struck down Virginia’s ban on interracial marriage.

Mildred Jeter, a black woman (though she also had Native American heritage and may have preferred to think of herself as Indian), married Richard Loving, a white man, in the District of Columbia in 1958. When they returned to their home in Caroline County, Virginia, they were arrested under Virginia’s anti-miscegenation statute, which dated to colonial times and had been reaffirmed in the Racial Integrity Act of 1924. The Lovings were indicted and pled guilty. They were sentenced to a year in jail; the state’s law didn’t just ban interracial marriage, it made such marriage a criminal offense. However, the trial judge suspended the sentence on the condition that they leave Virginia and not return together for 25 years. In his opinion, the judge stated:

Almighty God created the races white, black, yellow, malay, and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.

Five years later they filed suit to have their conviction overturned. The case eventually reached the Supreme Court, which struck down Virginia’s law unanimously. Chief Justice Earl Warren wrote for the court,

The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men. Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival.

Here’s how ABC News reported the case on June 12, 1967:

The Unlikely Fight over Gay Rights in the Heart of Europe

This weekend, after months of animated and often vicious campaigning, Slovaks will vote in a referendum on same-sex marriage, adoptions, and sex education. Interestingly, the referendum has not been initiated by the proponents of gay rights, which are not particularly numerous or well-organized, but rather by the social-conservative group Alliance for Family. The goal is to preempt moves towards the legalization of same-sex unions and of child adoptions by gay couples by banning them before they become a salient issue. Overturning the results of a binding referendum would then require a parliamentary supermajority and would only come at a sizeable political cost.

However, in spite of all the heated rhetoric, it seems unlikely that the threshold for the referendum’s validity will be met. Also, as I wrote in International New York Times some time ago, Slovakia is slowly becoming a more open, tolerant place – something that the referendum will hopefully not undo. However,

[i]n the meantime, the mean-spirited campaigning and frequent disparaging remarks about gays and their “condition” are a poor substitute for serious policy discussions and are making the country a much less pleasant place, and not just for its gay population.

Another disconcerting aspect of the referendum is its geopolitical dimension. For some of the campaigners a rejection of gay rights goes hand in hand with a rejection of what they see as the morally decadent West:

Former Prime Minister Jan Carnogursky, a former Catholic dissident and an outspoken supporter of the referendum, noted recently that “in Russia, one would not even have to campaign for this — over there, the protection of traditional Christian values is an integral part of government policy” and warned against the “gender ideology” exported from the United States.

We will see very soon whether the ongoing cultural war was just a blip in Central Europe’s history or whether it will leave a bitter aftertaste for years to come. Here is my essay on the referendum, written for V4 Revue. I also wrote about the referendum in Slovak, for the weekly Tyzden (paywalled), and discuss it in a video with Pavol Demes (in Slovak).

Greg Abbott Tells Fifth Circuit Court That Gay Marriage Won’t Stop Heterosexual Irresponsibility

In a brief filed to the Fifth Circuit Court of Appeals on Friday, Texas attorney general Greg Abbott says that the state’s gay marriage ban may help to reduce out-of-wedlock births:

Texas’s marriage laws are rationally related to the State’s interest in reducing unplanned out-of-wedlock births. By channeling procreative heterosexual intercourse into marriage, Texas’s marriage laws reduce unplanned out-of-wedlock births and the costs that those births impose on society. Recognizing same-sex marriage does not advance this interest because same-sex unions do not result in pregnancy.

As I’ve written before, this is a remarkably confused argument. There are costs to out-of-wedlock births. Too many children grow up without two parents and are less likely to graduate from high school, less likely to find stable jobs, and more likely to engage in crime and welfare dependency. All real problems. Which have nothing to do with bans on same-sex marriage. One thing gay couples are not doing is filling the world with fatherless children. Indeed, it’s hard to imagine that allowing more people to make the emotional and financial commitments of marriage could cause family breakdown or welfare spending.

The brief repeatedly says that “same-sex marriage fails to advance the State’s interest in reducing unplanned out-of-wedlock births.” Well, that may be true. But lots of state policies fail to advance that particular interest, from hunting licenses to corporate welfare. Presumably Abbott doesn’t oppose them because they don’t serve that particular purpose.

The brief does note that same-sex marriage may very well produce other societal benefits, such as increasing household wealth or providing a stable environment for children raised by same-sex couples [or] increasing adoptions.” But the attorney general wants to hang the state’s ten-gallon hat on the point that it won’t reduce out-of-wedlock births by opposite-sex couples.

In a previous case, Judge Richard Posner declared that the states of Indiana and Wisconsin had not produced any rational basis for banning gay marriage. Attorney General Abbott seems determined to prove him right.

Virginia Is for Gay Lovers Too!

In an attempt to prove that Virginia is indeed for lovers, two couples have recently gone to federal court to get their marriages recognized in their home state. One of the couples has been together for more than 20 years and the other got married in California and have a teenage daughter together, yet the Commonwealth of Virginia will not recognize their marriages because the couples are—you guessed it—same-sex.

These couples don’t see why their sexual orientation should keep them from enjoying the equal right to marry a partner of their choice, so they filed suit in federal district court to challenge the Virginia’s anti-gay-marriage state constitutional amendment. They argued that the provision violates both equal protection and the fundamental right to marriage, as protected by the Fourteenth Amendment. This February, the district court agreed with them, and now they’re defending that ruling before the U.S. Court of Appeals for the Fourth Circuit.

Following on the heels of last term’s Supreme Court ruling in United States v. Windsor—which struck down the part of the Defense of Marriage Act that denied federal benefits to lawfully married same-sex couples—this case adds Virginia to the list of states (which now includes Utah, Oklahoma, Texas, Kentucky, Michigan, and Ohio, and seems to grow with each passing week) that have the constitutionality of their marriage laws before a federal appeals court. 

Reprising our collaboration in Perry v. Hollingsworth—the California Prop 8 case in which the Supreme Court avoided ruling on the merits—and the Tenth Circuit gay marriage cases Kitchen v. Herbert and Bishop v. Smith, Cato and the Constitutional Accountability Center have filed a brief supporting the plaintiffs’ fight for equality under the law in the Old Dominion. We argue that the Fourteenth Amendment’s Equal Protection Clause protects against the arbitrary and invidious singling-out that the Virginia gay marriage ban effects, that the clause’s original meaning confirms that its protections are to be interpreted broadly, and that the clause provides every person the equal right to marry a person of his or her choice.

We believe that the Virginia constitutional amendment conflicts with the equal rights of those same-sex couples whose unions are treated differently than those of opposite-sex couples. To the extent that states recognize marriage, every person has the right to choose whom to marry and to have that decision respected equally by the state in which they live.

Especially in the wake of Windsor, it is becoming clearer that laws that force same-sex unions into second-class status have no place in a free society. After the Fourth Circuit hears argument in Bostic v. Rainey later this spring, it should affirm the district court’s decision.

Antidiscrimination Law Can’t Trump the Freedom of Speech

While Cato supports marriage equality, a commitment to equality under the law can’t justify the restriction of constitutionally protected fundamental rights like freedom of speech or association. Yet increasingly, legislation and judicial rulings sacrifice individual liberties at the altar of antidiscrimination law. Perhaps the most prominent current example of that trend is the case of the New Mexico wedding photographer.

Elane Photography, a Christian-identified business in Albuquerque, declined to photograph Vanessa Willock’s same-sex commitment ceremony based on the business owners’ personal opposition to gay marriage. New Mexico law prohibits any refusal to render business services because of sexual orientation, however, so Willock filed a claim with the New Mexico Human Rights Commission. She argued that Elane Photography is a “public accommodation,” akin to a hotel or restaurant, that is subject to the state’s anti-discrimination law. The commission found against Elane and ordered it to pay $6,600 in attorney fees. The state trial and appellate courts affirmed that order.

The case then went before the New Mexico Supreme Court, where Cato, along with same-sex-marriage-supporting law professors Eugene Volokh and Dale Carpenter, filed an amicus brief urging the court to reverse the court of appeals. Our brief explained that photography, unlike many other wedding-related businesses (e.g., caterers, hotels, limousine drivers), is an art form protected by the First Amendment—even if it’s not political and even if the photos are taken for commercial purposes. 

The U.S. Supreme Court ruled in Wooley v. Maynard—the 1977 “Live Free or Die” license plate case out of New Hampshire—that forcing people to speak is just as unconstitutional as preventing or censoring speech. The First Amendment “includes both the right to speak freely and the right to refrain from speaking at all.” Moreover, unlike true cases of public accommodation, there are abundant opportunities to choose other photographers in the same area.

Alas, the New Mexico Supreme Court also ruled against Elane Photography, holding that the First Amendment only prohibits compelling an individual to speak the government’s message, and that even if the state law did infringe on Elane Photography’s speech rights, those rights could not be vindicated because they conflicted with Willock’s right to equal access to public accommodations. Cato, again joined by professors Volokh and Carpenter, has again filed a brief, this time urging the U.S. Supreme Court to hear the case, because the New Mexico court’s reasoning is incorrect and incompatible with Wooley. 

The Supreme Court has never held that the compelled speech doctrine is only applicable when an individual is forced to serve as a courier for the message of another. Instead, the Court has said repeatedly that what the First Amendment protects is a “freedom of the individual mind,” which the government violates whenever it tells a person what she must or must not say. Forcing a photographer to create a unique piece of art violates that freedom of the mind.

Our brief also argues that the New Mexico Supreme Court was wrong to hold that the First Amendment can be abridged if a state law creates a “new right” that the constitutionally protected expression allegedly violates. The U.S. Supreme Court has never allowed such operation of state law, and allowing the New Mexico court’s reasoning to stand would send a dangerous message to state legislators and courts that the Bill of Rights is merely a suggestion, not a rule.

Vanessa Willock has until February 11 to file her opposing brief, and soon thereafter the Court will decide whether to take the case. If it does, Elane Photography v. Willock would likely be argued at the beginning of next term, in October, with an ultimate decision by June 2015.

New Mexico Court Is Wrong: Government Must Treat People Equally, but Individuals Should Have Liberty to Speak, Associate, and Believe

On Thursday, the New Mexico Supreme Court ruled in Elane Photography v. Willcock that the First Amendment doesn’t protect a photographer’s right to decline to take pictures of a same-sex wedding against the requirements of the state’s Human Rights Act, which forbids discriminating against people on the basis of sexual orientation. This is a terrible result, for the freedom of speech and association, and for religious liberty. As I’ve argued before, even supporters of marriage equality (and equality generally) should not be blind to other violations of fundamental rights.

The New Mexico law is one of multiple state and federal “public accommodations” laws that prohibit private discrimination by companies that offer services to the public. These laws are antithetical to liberty and forbidden by the Constitution. The Supreme Court held in 1883’s Civil Rights Cases that the 14th Amendment – the provision that speaks to equal protection – doesn’t authorize Congress to legislate against discrimination by private citizens.

A hundred years later, however, the Court held that such power exists under the Commerce Clause – even where the business is confined to a single state. This is just one more instance of Commerce Clause abuse, something Cato has fought on numerous occasions, including the successful Commerce Clause challenge to Obamacare’s individual mandate.           

The legislation at issue in Elane Photography didn’t come from Congress, so the question of federal power doesn’t arise. But even if a state legislature has the authority to act in a specific area, that authority can’t be exercised in a manner that violates the constitutional rights of the those subject to it. Yet the New Mexico high court disagreed with the position we took in our amicus brief and held that compelling someone to engage in artistic photography somehow doesn’t violate the freedom of speech if they aren’t forced to broadcast a government-sponsored message (for more on the inadequacy of the court’s ruling see comments by Dale Carpenter and Hans Bader). 

Even if you agree with the court that New Mexico’s law doesn’t violate Elane Photography’s speech rights, however, it clearly violates the company’s freedom of association and freedom of contract – two rights which, while not explicitly named in the Constitution, are clearly implicit in our understanding of “liberty.” The right to freely associate and contract with others must include a negative right not to do so – or the right is meaningless. This isn’t a defense of bigoted business practices, but a defense of choice, and it applies across the board: I don’t like homophobia, or racism, or any other number of irrational or even deplorable attitudes, but as I said on 20/20 earlier this month, being a jerk isn’t illegal.

If a restaurant doesn’t like how you’re dressed, it has the right not to serve you. No shirt, no shoes, no service, no problem – or, at least that’s the way it should be. My property is my property and my time is my time. I have the right to sell or rent both to anyone I want – or not to, as the case may be. We don’t need a government forcing businesses to serve people because the market will do that for us: refusing customers – refusing to make a profit – over something as irrelevant as a customer’s skin color or sexual orientation is a losing business strategy. 

Unfortunately, the Supreme Court has been hostile to freedom of association and contract since the 1930s, notably in the 1984 case of Roberts v. U.S. Jaycees, where the Court upheld a law that required the Jaycees, a private self-help and leadership training group, to begin admitting women, over the membership’s objections. More recently, Christian Legal Society v Martinez, (in which Cato also filed a brief), the Court ruled that a Christian student group couldn’t restrict candidacy for leadership and ministerial positions to students who shared the group’s faith. (Accordingly, Democrats apparently have to admit Republicans, PETA has to admit meat-lovers, and so forth.) In these cases, the Supreme Court, like the New Mexico court, held that the government’s interest in equality and “non-discrimination” allows it to run roughshod over individual liberties.

While the last few terms at the Court have included numerous important victories for freedom – and we may be living what I like to call the Court’s “libertarian moment” – the Court’s protection of individual liberty is patchy. The rights of criminal suspects, the religious, property owners, businesses, and many others, are all occasionally sacrificed in the name of “progress”.