Like a lot of our readers, and my co-bloggers Dale and Jonathan, I’ve been following the Olson-Boies same-sex marriage case with great interest. I wanted to weigh in with three comments and a question.
1) I’m not so sure the Supreme Court will eventually take this case. A lot of people seem to think this case is “destined” to go to the Supreme Court. It might, but I’m not so sure. Let’s assume that there are four Justices opposed to the result in the Ninth Circuit (whatever it is); four Justices in favor of it; and Justice Kennedy in the balance. Further assume that none of the eight decided Justices know at the cert stage what Justice Kennedy might do at the merits stage. Will there be four votes to agree to take the case? Maybe. But maybe not.
2) For those in favor of same-sex marriage, I’m not sure that a hypothetical Supreme Court decision concluding there is no right to same-sex marriage would do much to set back that cause. It seems to me that the cause of same-sex marriage has been advancing in recent years with the background understanding that federal courts are not likely to recognize such a right anytime soon. A decision rejecting the right would maintain that status quo. Some would argue that a decision rejecting the right in the near-term would delay or block a future decision coming out the other way. Whatever the Court does, however, my guess is that an early decision rejecting the right wouldn’t have a great deal of impact on later litigation.
3) If the Supreme Court does recognize a constitutional right to same-sex marriage in this case, I would expect that the next two Presidential elections will be won by the Republican candidate.
4) Finally, my question: Does anyone know if there is a video or complete transcript of Ted Olson’s 2003 Annual Federalist Society Supreme Court roundup, delivered just two weeks after Lawrence v. Texas? Will Baude was there and noted at the time some of the scorn Olson heaped on the Lawrence opinion:
General Olson speculated on whether the right to “transcendent” liberty [discussed in Lawrence] would extend to riding a motorcycle without a helmet, smoking cigarettes, or driving SUVs. (He suspected that the answer was no, but couldn’t come up with a good reason why not).
The issues raised in Lawrence and the current case are different, of course, but it might be interesting to juxtapose Olson’s views then and now.
Chris Travers says:
You think it is a bigger issue than, say, health care reform bills telling folks on both the left and the right that they have to buy insurance from private parties?
Let me put it this way: The next presidential election will consist of people voting for or against the Republican nominee, not for one or the other. Not a good place for Obama to be politically as his biggest issue seems to be resolving in ways not even his base likes very much.
January 10, 2010, 11:59 pmBama 1L says:
Can a Republican take office without Olson in his corner? I have my doubts.
January 11, 2010, 12:18 amAnon21 says:
I don’t think such a decision would such a dramatic effect on succeeding presidential contests. Healthcare reform and the economy are going to be the issues of 2012. Anything SCOTUS does or doesn’t do in the interim is going to pale in comparison to the pocketbook issues during a period of economic turmoil. Moreover, the people who really get exercised about the same-sex marriage issue tend to be in the Tea Party or fever swamp Republican demographics–people who believe that Obama wasn’t born in the U.S., that he’s a Muslim, that he’s creating a modern-day Hitler Youth, that he’s going to re-impose the Fairness Doctrine, and that the HCR bills will institute death panels. As usual, a Democratic President has come to power and suddenly the sky is falling. These people will turn out in huge numbers regardless of the issue landscape, and SCOTUS won’t affect that dynamic either.
January 11, 2010, 1:10 amOrin Kerr says:
Chris, Anon21,
I’m not sure how health care is going to play out politically, but my sense is that massive entitlement programs are generally pretty popular, at least in the short term.
As for the impact a decision could have, I’m imagining the Goodridge effect nationwide, including in swing states like Pennsylvania and Ohio that have a lot of social conservative voters.
January 11, 2010, 1:18 amFederal Farmer says:
In my opinion, marriage is an expression of freedom of association. Choosing one person with which to spend one’s entire life with, is ultimately a freedom of association.
January 11, 2010, 1:22 amI also believe that there is then, an Equal Protection restriction on the government banning same sex marriages.
There is no compelling state interest in banning same sex marriage, unlike consanguinity (due to birth defects) and marriage to one that cannot consent (minor, inanimate object, vegetation, etc).
Thereroe, the state governments have no business being in the ‘marriage’ business if ‘marriage’ is a religious affiliation. State governments should only issue civil unions (whether SS or OS).
Finally, the Federal government has no business in this in any manner. This is a power reserved by the States and a right held by individuals.
Randy says:
“3) If the Supreme Court does recognize a constitutional right to same-sex marriage in this case, I would expect that the next two Presidential elections will be won by the Republican candidate.”
I seriously doubt that. Recent polls have shown that SSM is low on the list of considerations of even right wing religious. That doesn’t mean it isn’t a concern, but it’s not high on the list of issues facing Americans. Sure — when the issue is forced, like on a ballot, it comes out. But to think that most Americans will vote for a president on whether gays can marry is quite stretch. And the next two? That’s silly.
January 11, 2010, 2:02 amDilan Esper says:
1. prof. kerr’s point 3 is wrong. very few voters care that nuch about gay marriage, and the ones who are really offended by it vote reliably republican anyway.
2. i suspect a lot of the people who spout federalist society talking points on lawrence or lots of other matters don’t really believe them. there’s a lot of careerism and don’t piss off your friends in what partisans say about things the base cares about. so even if olson is being inconsistent, it isn’t a very big deal.
January 11, 2010, 2:31 amJohn Herbison says:
The Attorney General of California has declined to defend the legitimacy of Proposition 8. Who are the intervenors that are advocating in favor of upholding the amendment, and who represents these intervenors?
Same sex marriage has been recognized (for a relatively brief period of time) in a few states, in Canada and in various European countries. I wonder whether the defenders of Proposition 8, especially those who contend that making same sex couples eligible to marry will somehow harm the institution of marriage, will offer empirical evidence regarding the experience of the various jurisdictions that have legalized same sex marriage as to any alleged detriment to more traditional marriages.
January 11, 2010, 2:41 amOrin Kerr says:
Dilan writes:
Dilan, how do you account for the significant impact that gay marriage state court decisions had on critical swing states in the 2004 Presidential election?
Dilan also writes:
Dilan, I recognize the convenience of suspecting that smart people who vocally disagree with you are just being dishonest. At the same time, Ted Olson was the sitting Solicitor General of the United States in 2003, and his Supreme Court roundups were so brutal in that period that I remember thinking at the time that he would only say those things if he had no interest in any higher office requiring Senate confirmation. The idea that he was saying those things for “careerist” reasons strikes me as far-fetched.
January 11, 2010, 2:51 amJohn Herbison says:
Sunday’s edition of the New York Times includes the following comment:
Does Mr. Lorence fail to appreciate that marriage doesn’t produce children–sexual union between a virile male (married or unmarried) and a fertile woman (married or unmarried) produces children. In fact, such a coupling between a man and a woman who are married, but not to one another, can also produce children.
Moreover, what is the governmental interest in whether a particular marriage does or does not produce children? Assuming, for sake of argument, that a state’s allowing same sex couples to marry will increase the number of childless marriages, so what? How does that advance or inhibit any governmental objective? What am I missing?
The Supreme Court recognized in 1972 (Eisenstadt v. Baird) that the decision of whether to bear or beget a child is an individual decision to be made, free of unwarranted governmental constraint or interference, independent of marital status. Would the Proposition 8 supporters revisit that premise, as well?
January 11, 2010, 4:16 amMartinned says:
I’d agree. Health care is a big issue until it is enacted. Once enacted, no Republican will be able to win votes by proposing to repeal it. SSM is the opposite: no one on the right cares about it very much until it is (about to be) enacted. Once enacted, every Republican can win votes by proposing to repeal it. The difference isn’t only that the former is an entitlement programme while the latter is not, the difference is also that the latter is a “values” issue, while the former is more a question of “whatever works”. (Except for libertarians, of course.)
January 11, 2010, 4:49 amPQuincy says:
I believe Prof. Kerr is correct that a Supreme Court decision finding no right to same-sex marriage in the Constitution would have only modest effects on the developments in this area. This is because I find it highly improbable that the Court would make the stronger finding that the Constitution somehow prohibited same-sex marriage. Consequently, leaving the matter as one of legislative discretion or one dependent on state constitutions would, indeed, simply extend the status quo.
Right now, there are few states willing to approve same-sex marriage in their legislatures — not even New Jersey — and that is likely to be a ‘sticky’ position that will change more slowly than public opinion on the issue, as state legislators are mostly not risk-takers on this kind of issue.
Kerr is probably also right not to underestimate the backlash a positive Supreme Court decision would have. While not many voters put same-sex marriage at the top of their priorities, a modest majority of likely voters still feels strongly enough about it to vote in both regular and special elections, as recent events have shown. In a closely balanced political system, even a minor effect could be significant.
The next question is how long this effect will last. In light of widespread acceptance of same-sex relationships among those under 40 (except for a committed vocal minority), the politics of this are likely to shift over the next two decades, even accounting for the general trend towards more conservative positions as people age. A more important effect may be at the state level. My sense is that this is an issue where the ‘center’ of opinion varies widely from state to state: moderates in Massachusetts have a position far removed from that of moderates in Alabama. A Supreme Court decision forcing the issue would have little political effect in Massachusetts and the coasts, but a strong backlash effect in some states — though those states are already reliably, indeed increasingly ‘red’ in national elections.
January 11, 2010, 9:26 amRodger Lodger says:
I wonder if there’s a difference between the complaint here, which attacks Prop. 8 (overruling a CA Sup CT decision granting a state constitutional right to gay marriage) and a complaint that would have simpy alleged a federal constitutional right to gay marriage? What I’m thinking is Boies-Olson may have something up their sleeve: a strategy of using the Rohemer decision in which the Sup CT struck down a CO proposition amending the CO constitution to prohibit civil rights measures that would protect gays. In other words, could it be that even if there is no right to gay marriage, the plaintiffs will argue it is forbidden to take away such a right once granted by state law? Note well that plaintiff intends to call supporters of Prop 8 as witnesses. What would be the relevance of why somebody supported Prop 8, other than the theory I propose?
January 11, 2010, 9:37 amyankee says:
Based on very briefly skimming the study you cited, it appears to deal with the effect of anti-marriage ballot measures, not the effect of pro-marriage court decisions per se. Anti-marriage ballot measures have already been enacted in (virtually?) every state with a ballot procedure. There aren’t many (any?) places they can put a new anti-marriage measure on the ballot, because one has already been passed. In the unlikely event the Supreme Court finds that gays cannot be constitutionally excluded from marrying, such measures couldn’t make it on the ballot in the first place.
In any case the small effect the cited study found would only be dispositive if the election is close. The closeness of the election will mostly be determined by structural factors, especially the economy, and we don’t know what the economy will be like nearly three years from now.
January 11, 2010, 10:47 amlosantiville says:
Moreover, the people who really get exercised about the same-sex marriage issue tend to be in the Tea Party or fever swamp Republican demographics
You mean like the 70% African American Yes on 8 vote. That fever swamp.
January 11, 2010, 10:57 amDilan Esper says:
prof. kerr:
1. first, that was 2004. second, you should always be suspicious of those sorts of claims. my understanding is that most political science says that very few elections do not turn on fundamentals. there were lots of claims about ‘moral values’ in 2004, but we are supposed to believe all those values voters vanished in 2006 and 2008.
2. you are way, way off here (and quite naive). the public statements of senior bush administration officials are almost always consistent with desired messaging of the conservative movement. if olson had said lawrence was right, he doesn’t stay solicitor general for long.
the fact is very few people in politics really believe the talking points. (and by the way, this has nothing to do with my political beliefs. very few professional democrats who said they believed clinton’s denials of the affair in 1998 believed it either.) this DOESN’T mean that all republican politicians think lawrence was great– they don’t– but rather the ritual denunciation of courts for liberal decisionmaking is very much a matter of public spin and team play. certainly there are very few republican poo-bahs who actually believe that recognition of gay rights will harm marriage or send the country on the road to ruin. but that’s what the base wants them to say, so they say it.
January 11, 2010, 11:04 amAdam B. says:
Per City of Cleburne/Moreno/Romer, a court could well decide that taking away the term “marriage” from such unions, and none of the underlying legal rights, has no purpose other than to stigmatize gay couples and therefore fails equal protection analysis — and, as such, the court need make no broader pronouncements as to a freestanding right to marry or the level of EP scrutiny appropriate for such questions.
January 11, 2010, 11:16 amChris Travers says:
The thing is most people I have talked to don’t see a mandate to buy insurance from a private company as an entitlement program.
January 11, 2010, 11:33 amjrose says:
In what way does Olson rely on Lawrence in this case?
January 11, 2010, 11:38 amlosantiville says:
In my opinion, marriage is an expression of freedom of association
Then you will be as pleased as punch to learn that SSM has never been banned anywhere (so far as I know). Even societies that used to punish sodomy by death (or, like Iran, still do) have somehow neglected to ban SSM. They may not grant official recognition to SSM, but you can sill marry. This is the same way Islam polygamists in the US remain married even though the US does not recognize their marriages.
January 11, 2010, 11:42 amOrin Kerr says:
Chris Travers,
I don’t think the popularity of legislation is best measured by reciting the talking points used by those who oppose the program when it’s still working its way through Congress,
That’s sort of like saying that the Patriot Act was unpopular in 2001 because, the thing is, most people I talk to don’t like legislation that gives the government too much power that it will abuse.
January 11, 2010, 11:43 amOrin Kerr says:
Dilan,
I find your most recent comment remarkably unpersuasive.
It seems to me that you should first be recognizing that your first claim was at least quite obviously overbroad, and then trying to argue why a hypothetical Supreme court decision imposing same-sex marriage nationwide would have only a small effect 8 years after a Massachusetts state court decision had a significant effect in 2004. The claim “that was 2004″ seems to hint that you might have an argument you’re considering, but surely that in itself is not a substantive response.
As to your hypothesis about what Federalist Society members and government officials in DC really think, I think it is you, not me, who is naive. Sure, some people always disagree with the mainstream thought in an Administration. That much is obvious. But the time-honored way to deal with that disagreement is to keep your trap shut. You probably don’t volunteer to be the only person to give a widely attended address, in front of 500 people, and often televised; make clear in that speech that you are speaking in your personal capacity, not your official capacity; and then proceed to lie about what you think just because you as Solicitor General are afraid that “they” (whoever that is) will fire you if you speak truthfully.
At the end of your comment you turn to the broader question of whether political officials say things they don’t believe. But that level of abstraction is an evasion, not a response. I am talking about what a specific person said at a specific time in a specific setting.
January 11, 2010, 12:02 pmChris Travers says:
Yes, but in my case, this is the outrage I am hearing from Obama supporters and those who are still considering voting for him in the next election. This is the outrage I am hearing from folks who SUPPORT healthcare reform. That is a big difference.
Also, regarding the USAPATRIOT act, some of the worst provisions have already been struck down in court, and hopefully more will be limited in Holder v. Humanitarian Law Project. It would be somewhat unfair to consider the act that was passed in 2001 to be identical in the powers it provides the government to the act as is currently applied.
At least part of the acceptance of the USAPATRIOT act has to do with the system continuing to work.
January 11, 2010, 12:08 pmmischief says:
Given that such defects are a minority among even incestous unions and occur among unrelated couples, given that there is, nowadays, no reason to assume that a couple will produce children — HOW can such an interest be so compelling as to prohibit right of association?
Especially since sterilization would fix the issue and be less intrusive than a flat out ban.
(I also note that you do not explain why polygamy is banned. Marital status is, after all, a protected class.)
January 11, 2010, 12:14 pmParenthetical says:
I too would love to see the rest of his comments.
But the bit of Olson’s comments you posted here wouldn’t be much different than my critique of Lawrence–the result was right, but the reasoning was quite troubling.
January 11, 2010, 12:16 pmDavid M. Nieporent says:
I agree that most voters are not single-issue voters on gay marriage, and the ones who are are most likely committed partisans on one side or the other. (*cough Andrew “I used to think the invasion of Iraq was brilliant until Bush opposed gay marriage” Sullivan cough*) But if it were as clear cut as you portray, such that Orin is “wrong,” then why, e.g., has Obama refused to support gay marriage? Why have no politicians with national aspirations done so? Why has it failed to pass legislatures even in states like NY and NJ?
January 11, 2010, 12:19 pmChris Travers says:
I think there are no equal protection issues in the polygamy ban, but there are other issues, especially since polygamy tends to be associated with certain religious groups.
However, I also think that there are two fundamental issues in polygamy law that must be separated and seen as separate.
The first is that many states (including Utah, for example) prohibit cohabitating with multiple sexual partners as if they were married. In other words, where polygamy laws ban concubinage, or where they ban additional spouses which are ceremonially but not legally married (as does Washington arguably), I think a Lawrence-type analysis would suggest that this sort of criminal ban should be Unconstitutional, though many states’ laws could be narrowed by interpretation to avoid this problem.
The second has to do with marriage recognition by the government. This presents a legal quagmire which the common law process is not really well suited to address. For example, if a man marries two women and then later dies, are the women now married to eachother? What about power of attorney issues where an individual has an even number of spouses: how is disagreement handled? Do the two wives of a man have a duty to rescue eachother? As you can see, it becomes quite a mess…..
For this reason, though, it is easy for a court to argue that polygamous marriages are NOT similarly positioned to monogamous marriages relative to the legal benefits of being married and hence the court shouldn’t entertain equal protection analysis in that case.
January 11, 2010, 12:23 pmDavid M. Nieporent says:
Ordinarily I would agree. That’s because massive entitlement programs generally involve benefits first, payment second. But the current bills, for the sake of pretending to be deficit-neutral, raise taxes first and provide the benefits a few years down the road. (Moreover, for most people, who already have health insurance, the benefits will be minimal.) So I don’t think there will be much of a popular boost from passing HCR.
January 11, 2010, 12:24 pmDilan Esper says:
prof. kerr:
part of olson’s JOB was to talk to the federalist society and mouth the talking points. do you really not understand that the bush administration worked hand in hand with movement conservativism, and that senior justice department political appointees routinely were called on to give talking points laden addresses to movement gatherings?
the reality is that it is quite well known that many republicans do not agree with the base about gays, but that it isn’t considered a route to power and influence in conservative circles to endorse this position. and that doesn’t mean simply shut up, especially if you are one of the administration’s point persons on legal issues and the supreme court.
kathleen sibelius, for instance, can’t simply shut up if she doesn’t agree with the health care plan. she has to affirmatively endorse it. similarly, clinton forced many democrats to not only not say they didn’t believe him, but to claim that they did.
olson’s job was to criticize lawrence to gatherings of conservatives. he did his job. and you are chasing a dog bites man story here.
January 11, 2010, 12:27 pmFederal Farmer says:
See Travis above. Succinctly stated response.
January 11, 2010, 12:31 pmOrin Kerr says:
Dilan,
I guess I’m still confused. Ted Olson has been doing his annual Supreme Court roundup every year for well over a decade; he started doing them long before he was Solicitior General, and he has continued them after going back to private practice. The big surprise (at least to me) was that he continued to give his roundups when he became Solicitor General in 2001, without really changing the style or harshness (or hilarity) of his remarks that he had established during the Clinton years.
Given that, I’m not sure I know what you mean when you say that the roundup was part of the Bush Administration’s strategy, and actually part of Olson’s “JOB.” Are you thinking that Olson started working the Bush Administration back before there was a Bush Administration?
More broadly, I suspect this is an instance where you are hypothesizing about what happened in a specific case (Olson) based on what you have read online about what happened in the general case (Bush Administration officials). You are then suggesting I am naive for not recognizing the general case, based on the assumption that the specific case is the same as the general one. But I’ve been to lots of Ted Olson roundups over the years, and he’s a quite well known figure; I think we have enough info to try to draw conclusions based on the specific case.
January 11, 2010, 12:45 pmChris Travers says:
Just to clarify my thinking on why this is less important to the election than the healthcare reform bill is.
Typically when people think of entitlement programs, they think of government programs where one is entitled to help or support. Typically one does not think of farm subsidies in this even though it arguably leads to less expensive food on our tables. Typically one further does not think of mandates to participate in business (though arguably noncommercial) relationships with private businesses as entitlements. If healthcare reform provided a public option, it would be an entitlement program. As long as it does not, it will not be seen as such.
Most of my relatives vote reasonably Democratic (meaning that they vote for the Democrat unless the Democratic candidate is not reasonable in their view). All three of my siblings are STRONG supporters of healthcare reform and my cautions that the process would not produce a good result initially fell on deaf ears.
That changed when the public option became more or less officially dead. I watched enthusiasm give way to confusion and then outrage. This was no less true among folks who did work on the ground for Organizing for America as it was for mere vocal supporters of healthcare reform.
My sample may be too small to be more than anecdotal, but I suspect that this is not that uncommon. I think most of the Democratic base wants to see government involved in health insurance, and a move to a single-payer system. This same base is deeply suspicious of government handing business to industries.
So I think that by itself, healthcare reform will be more than adequate to cause at least the next two elections (2010 and 2012) to go very heavily GOP. Whether 2014 and 2016 swing back depends on a number of other things.
Gay marriage may motivate the Republican base, but this is unlikely to be as major of a factor as the damage done towards motivating the Democratic base by the health care reform process.
January 11, 2010, 12:50 pmDilan Esper says:
Given that, I’m not sure I know what you mean when you say that the roundup was part of the Bush Administration’s strategy, and actually part of Olson’s “JOB.” Are you thinking that Olson started working the Bush Administration back before there was a Bush Administration?
I am saying that as long as he was working for the Bush Administration, he was going to say things at gatherings of movement conservatives that reflected, in a broad sense, the Administration’s messaging to movement conservatives. The fact that he may have attended such gatherings in the past doesn’t change this.
It’s like when a blogger takes a job for a politician. Whatever that blogger may have said previously, the blogger’s output AFTER taking the job is going to be consistent with the politician’s desired political messaging. (Indeed, in Olson’s case, given his standing within movement conservativism, you should not assume that whatever he was telling the Federalists in pre-Bush administration gatherings was not carefully messaged.)
Again, this is just politics. And it isn’t an ideological point. Professional Democrats also say things to the base that they either don’t believe or which are a talking pointed, bastardized version of what they actually believe. This is what political operatives do. You can watch Bill Kristol, every Sunday morning on Fox, say things that he either doesn’t really believe or which are an incredibly massaged, carefully constructed and digested form of what he believes.
Ted Olson would have made big news if he had said to the conservative movement ANYTHING other than that Lawrence was an awful decision which featured a court making up new law to get the result it wanted when he was SG, and he wasn’t at that Federalist Society conference to make any news and would have been severely taken to task if he had done so. He said what he said, and it shouldn’t surprise you or anyone else that his real position was different, because gay rights happens to be one of those areas where LOTS of politicians (and by the way, the above commenter is right about Obama in this regard as well) say things they do not believe.
January 11, 2010, 1:25 pmjrose says:
I’m not sure the model on the impact of same-sex marriage in Ohio and Michigan in the 2004 election would apply in 2012.
Firstly, the model specifically concluded that turnout was not higher because of the ballot initiatives. The model instead found that one-fifth of the people who voted against SSM switched from Kerry to Bush just because SSM was on the ballot.
Is it plausible that there mere presence of a ballot initiative would raise the issue in the minds of the voters to such a degree as they cast a vote for President? It would have been helpful if the the model also investigated Pennsylvania, a state very similar to Ohio in demographics, with similar differential results compared to 2000 (although Kerry held on), but without a ballot initiative.
On the other hand, a SCOTUS ruling mandating SSM might bring the issue front and center as people cast a Presidential vote in every state, possibly beyond the impact of a state initiative, because of the Presidential power to appoint federal judges.
January 11, 2010, 1:50 pmOrin Kerr says:
Dilan writes:
With all due respect, your argument is just inattentive to the facts. It’s not that Ted “may have attended” the pre-Bush Supreme Court roundups: Rather, it’s that Ted was the pre-Bush Supreme Court roundup. That is, the roundup consisted of a brief introduction (generally Doug Cox) followed by Ted Olson speaking for (say) 45 minutes. It’s always been the Ted Olson show, and it has drawn a huge following since as long as I’ve been in DC (I moved here in 1998), with a consistent take every year for well over a decade. And if he actually looked at things differently, he would just keep his mouth shut and not mention that issue: Giving a talk like this involves choosing your targets rather than being compelled to take them.
Finally, you seem to be overlooking that what Olson said wasn’t about policy, but constitutional interpretation. No one is surprised that Ted is personally in favor of the policy of same-sex marriage: A lot of Federalists are. What’s surprising is that he seems to think that the Constitution mandates it. (Unless you think that Ted is misrepresenting his beliefs now, for whatever self-interest a formerly harshly partisan official might have in being perceived as more of a bipartisan senior statesman.)
Anyway, I gather there is nothing I can say to impact how you look at this, so I’ll just emphasize that based on my experience, I think you are way off here.
January 11, 2010, 2:46 pmBob from Ohio says:
I think its only the dark skinned blacks who speak in a Negro dialect that oppose gay marriage.
January 11, 2010, 4:08 pmRandy says:
Each year, the people who oppose SSM drops slightly across the board, and the ones who support is increase slightly. Nate Silver has an excellent demographic whereby he predicts that the last state to have a majority in favor of SSM will be Alabama in 2021 or thereabouts.
If the Republicans wish to run on a platform that the biggest issue of the day is that gays are getting married, it simply won’t resonate with most of the public. SSM consistently rates well below other bigger issues such as jobs, the economy, the war on terrorism, health care, immigration and other things.
True, some politicians make a big deal of SSM. And true, the Democrats from Obama on down have done little for gays. But politicians do not necessarily talk always about the issues that most concern people, and it’s foolish to look to them for guidance on how people who actually vote.
That said, I could be completely wrong — perhaps SCOTUS will mandate SSM in every state, and The People will rise up and say that eliminating this right is the biggest issue facing America, and will vote in two terms of a president. If the Republican party hangs it hat on that, then we can pretty much gaurantee they will remain the minority party after that for a long, long time, as they will have turned their back on all the people under the age of 40 who actually support SSM, and those people are growing at a much faster rate than those who oppose SSM.
In other words, if you are right, it’s a temporary gain for permanent suicide.
January 11, 2010, 4:35 pmFederal Farmer says:
Spot on. SSM is the GOP’s Achilles heel or at least a major weakness. In my opinion, they also focus too much on infringing civil liberties in the name of safety post-9/11.
As Judge Napolitano pointed out, Patrick Henry did not say “give me safety or give me death!”
Sorry to wander off topic.
January 11, 2010, 4:43 pmDilan Esper says:
With all due respect, your argument is just inattentive to the facts. It’s not that Ted “may have attended” the pre-Bush Supreme Court roundups: Rather, it’s that Ted was the pre-Bush Supreme Court roundup.
You are being inattentive to the fact that THIS CHANGES EVERYTHING. Even if Olson was completely uncalibrated when he gave these talks before joining the Bush Administration (something I actually doubt was true given his long experience as a beltway lawyer and player in conservative politics), his comments would still be calibrated WHILE he was a member of the Bush Administration.
There was no way, if he was scheduled to give this talk right after Lawrence, that he was going to avoid commenting on Lawrence. And there was also no way that he was going to say anything other than a Karl Rove-style message about Lawrence. Sorry, Professor Kerr, if you thought you were getting sincerity from a senior Administration official at a gathering of movement conservatives.
This is simply the way modern political messaging works, Professor Kerr. When you are attending speeches or remarks given by political operatives and/or experienced players, especially those working for the current administration, you are simply not going to get an unfiltered, unvarnished version of the person’s beliefs.
I would add that I suspect more Federalists (at least the ones who are also very experienced political players) than you think not only think that gay marriage isn’t a bad thing, but that current marriage limitations lack a rational basis. Again, the fact of the matter is that these are very common views among conservatives in official Washington, and many of the people who hold them will nonetheless speak of the sanctity of marriage and their pious belief that it should remain between a man and a woman, as well as their sincere outrage at the courts making policy, when speaking publicly about the issue.
January 11, 2010, 4:47 pmPaul says:
Randy, supra:
If the Republican party hangs it hat on that, then we can pretty much gaurantee they will remain the minority party after that for a long, long time, as they will have turned their back on all the people under the age of 40 who actually support SSM, and those people are growing at a much faster rate than those who oppose SSM.
You assume that voters — in this case, young heterosexuals who support SSM — won’t vote for a party with which they disagree on a single issue. That assumption is demonstrably false.
January 11, 2010, 5:37 pmChris Travers says:
IOW, they will alienate their base as much as the Democrats have with healthcare reform. ;-)
Most likely the outcome there would be a new party rising to kick out one of the other old parties. Obama made a lot of people very hopeful and many of those are feeling quite betrayed right now, if my family and friends are any indication.
January 11, 2010, 5:39 pmOrin Kerr says:
Dilan,
Having not worked on the Hill for almost six months now, I appreciate your lesson on how modern political messaging works. If you have any thoughts on the Fourth Amendment, I hope you will send them my way so I can start learning about it.
But we seem to be talking about two questions: You are talking about your understanding of how the world generally works based on what you’ve read on the Internet, and I’m talking about what a specific person was actually thinking at a specific time.
January 11, 2010, 5:39 pmptt says:
The GOP has certainly been able and more than willing to exploit anger on the part of some of the public by having a presidential candidate rail against state court decisions, but to run a campaign for president in open conflict with the sitting Supreme Court?
When gay rights are discussed in something other than soundbites, the inevitable result is an increase in support for gay people (this, I believe, is the root of “conservative” objections to televising this trial). A presidential campaign about objection to a Supreme Court decision couldn’t go on for months and months with just variations of “think of the children!” and “damn those activist judges!”. The GOP candidate might want that to be the full extent of the “debate”, but he/she would not be able to control what other candidates say.
January 11, 2010, 5:41 pmJohn Herbison says:
I see that the Supreme Court has (at least for now) blocked broadcast/You Tube streaming of the trial. http://www.slate.com/id/2241118/
In a New York Times op-ed column, http://www.nytimes.com/2010/01/11/opinion/11meese.html , former Attorney General Edwin Meese has kvetched about the broadcast coverage, as well as about pretrial rulings that will permit inquiry into the motives and tactics of proponents of the referendum. Never mind that that goes to the heart of one of the Plaintiffs’ claims–that enactment of the amendment offends Romer v. Evans, 517 U.S. 620 (1996), in that the amendment was adopted out of a bare desire to harm a politically unpopular group. Indeed, this may be a stronger claim than traditional equal protection analysis would afford.
As Bull Connor and his dogs demonstrated decades ago, bigotry is an ugly matter. Whether that bigotry manifests itself through race hatred or otherwise, any public scorn or obloquy that may be visited upon the bigots is well deserved.
January 11, 2010, 5:44 pmptt says:
From Mr. Meese:
Wow, only two paragraphs in and I’m already disquieted by Mr. Meese’s free use of partial quotes.
January 11, 2010, 5:51 pmDilan Esper says:
Having not worked on the Hill for almost six months now, I appreciate your lesson on how modern political messaging works. If you have any thoughts on the Fourth Amendment, I hope you will send them my way so I can start learning about it. But we seem to be talking about two questions: You are talking about your understanding of how the world generally works based on what you’ve read on the Internet, and I’m talking about what a specific person was actually thinking at a specific time.
I would never presume to tell you anything about the Fourth Amendment. But partly that’s because even though I may disagree with some of your opinions about it, you have not once posted anything that makes me doubt your considerable expertise, and I certainly don’t claim to have any in that area.
But what you have posted here seems to be almost willfully blind to the ways of Washington political messaging, something I actually do know a fair amount about, and Ted Olson, a person I also know a fair amount about. And no matter how many times you try to say “this is special, this is a specific event with a specific person”, you betray a lack of understanding that ANY senior Justice Department political appointee, but I would also note especially Ted Olson (who certainly knows the way the world works), speaking to the Federalists during the Bush Administration, is not going to be entering the “no spin zone”. That just totally misses the entire relationship between organs of the conservative movement and the Bush Administration.
Your position seems to be that there’s some sort of exception to this because it was Ted Olson and he did these events for years. Believe me, there’s no exception. There is no way that anyone in Ted Olson’s position or seniority speaking to any group along the lines of the Federalist Society at any time during the Bush Administration would be delivering anything other than whatever the desired message to the base was. Had Olson ever done anything other than espouse the line that Lawrence was unprincipled judicial activism, in any public setting, during the Bush Administration, he would have hurt the political position of the Administration and would have been disciplined.
That’s how Washington works, and it’s basically the reason why it’s pretty much coincidental when you receive someone’s honest opinion about something in a public setting there.
January 11, 2010, 6:00 pmOrin Kerr says:
Dilan,
It’s clear that each of us thinks we know more about this topic than the other does. I think at this point we should just leave it at that.
January 11, 2010, 6:32 pmRandy says:
“You assume that voters — in this case, young heterosexuals who support SSM — won’t vote for a party with which they disagree on a single issue.”
Well, of course. But the scenario presented pretty much assumes that SSM would be the sole issue, or at least the sole important issue, to the GOP. If the GOP takes that tactic, they might win. Or if they don’t take the tactic, and instead have opposition to SSM as just one part of their broader platform, then that cuts against Prof. Kerr’s argument that a SCOTUS ruling would usher in two terms of a GOP presidency.
I just don’t see that masses of people are going to vote for a GOP that opposes SSM in two subsequent elections unless 1) the GOP makes reversing SSM their sole or leading issue and 2) a majority of Americans agree it’s the leading issue of the day
January 11, 2010, 7:11 pmProp. 8 lawsuit should be interesting - Orange Punch : The Orange County Register says:
[...] that seeking marriage equality through the courts is a bad tactic, and here is another law prof and another arguing that it has been effective and is [...]
January 11, 2010, 7:32 pmbadlaw says:
I do think there will be a shift if the SCOTUS finds a right to gay marriage. Not so much because most of this country is against it and thus will start voting conservative, but because I think many people will be turned off by the idea that a minority can go to court and stick their finger in the eyes of millions of people’s right to vote on a question of policy. The assumption that traditional marriage is not just wrong or lacking inclusiveness, but that’s it’s residue of straight people bigotry and hatred towards gays is something I’ve heard even liberals disagree with. And if history is any judge, at the time of Loving, thirty-six states had over turned their anti-miscegenation laws, only one of which was through the courts (CA, Perez v. Sharpe). By comparison, five states (and D.C.) have legalized it, three of which by judicial review, thirty states have voted to amend their constitutions to ban it, and several state supreme courts rejecting it.
January 11, 2010, 7:46 pmRandy says:
badlaw: “The assumption that traditional marriage is not just wrong or lacking inclusiveness, but that’s it’s residue of straight people bigotry and hatred towards gays is something I’ve heard even liberals disagree with.”
Well, to parse your statement….
January 11, 2010, 7:51 pmNo one says traditional marriage is wrong, and no one wants to abolish it or change it. Massachusetts, Vermont, Canada, Spain, and every place else still have traditional marriage.
Still, traditional marriage does not allow gays to marry. Even you must agree that is true.
As to why it still excludes gays, well, you need only read some of the comments on various threads here which claim that gays are not monogamous, are incapable of love, spread AIDS, and generally herald the downfall of civilization to see that hatred of gays is still alive and well and justification for preventing SSM.
jrose says:
Orin,
After reading the Olson blog summary below, either Dilan is correct and Olson was not speaking from his heart or mind when he lambasted Lawrence in front of the Federalist society, or something very fundamental changed in Olson since 2003.
“Plaintiffs are being denied the right to marry, described by SCOTUS as one of the most vital personal rights pursuant to the right to the pursuit of happiness, intimate choice, expression of emotional support, the exercise of spiritual unity, the highest expression of self. It is the most important right in our society”
January 11, 2010, 10:07 pmOrin Kerr says:
jrose,
I think there are four options, not two:
a) Olson was not speaking from his heart and mind in 2003
b) Olson is not speaking from his heart and mind now
c) Olson changed his heart and mind between 2003 and today, or
d) Olson didn’t actually say anything in 2003 directly contrary to what he is saying now.
I don’t know which among the four options is correct: I tend to discount (a), though, which is the one that Dilan seems to think occurred.
January 12, 2010, 12:55 amJimo says:
“(*cough Andrew “I used to think the invasion of Iraq was brilliant until Bush opposed gay marriage” Sullivan cough*)”
In a list of fairly stupid comments, this one takes the cake! There are ‘willful distortions’ and then there are claims so laughably outlandish (and freakishly bizarre) that they are not only remarkably unpersuasive but transparently were never intended to be persuasive.
January 12, 2010, 1:08 amJimo says:
“I’m imagining the Goodridge effect nationwide, including in swing states like Pennsylvania and Ohio that have a lot of social conservative voters.”
I suspect it would have a similar effect to the Lawrence v. Texas decision (a “Lawrence effect”). That is, a small flicker of intensity and heat and a fair amount of smoke would erupt with little to no discernible consequence at the general election (although it might have some results in GOP primaries). While I can’t see how this would be likely to trump issues such as national security or the economy and jobs — especially in state like PA and OH (both of which probably will lose 1 or 2 votes after the census anyway — to the extent that it is a core issue to voters I’d imagine that they have already affiliated with a political party.
While most voters seem to have taken a negative view of SSM, I see little if any evidence that it alters either which Party candidate they pick or even whether they go to the polls absent a specific ballot item to vote for/against. With the exception of terrorism, voters simply don’t show voting behaviors altered by issues that don’t directly affect their lives (and only the most fervent opponents/proponents – a tiny percentage – will claim that).
Oh, and apparently only the Professor and John McCain believe that PA is a swing state and McCain may have changed his mind.
January 12, 2010, 2:02 amjrose says:
Orin,
Until I read the blog summary of Olson’s opening argument, I thought your “d” was a possibility. But, don’t you agree that his purported mocking of “transcendent liberty” is strikingly incompatible with his current statements. Are we to believe that Baude got Olson’s view so far wrong that “d” is as likely as the other 3 possibilities?
Why would you discount “a” more than the other possibilities?
January 12, 2010, 7:32 amSCOTUSblog » Monday round-up says:
[...] Wade, Loving v. Virginia, and Brown v. Board of Education. At The Volokh Conspiracy, Orin Kerr contends that the case may not be destined for the Supreme Court. Newsweek also has coverage of the case, [...]
January 12, 2010, 7:59 amptt says:
In other words, we can look forward to former Sen. Santorum opining about man-on-dog marriage instead of man-on-dog sex.
January 12, 2010, 2:34 pmChris Travers says:
this isn’t new.
Sir Joseph Porter
“I grew so rich that I was sent
By a pocket borough into parliament.
I always voted my party’s call
And I never thought of thinking for myself at all.”
Chorus:
“And he never thought of thinking for himself at all.”
Sir Joseph Porter:
“I thought so little, they rewarded me
By making me the ruler of the Queen’s Navee….”
Chorus:
“He thought so little they rewarded he
by making him the ruler of the Queen’s Navee!”
Pretty much true in all times and all places….
January 12, 2010, 3:31 pmChris Travers says:
So if gay marriage is equivalent to man on dog marriage, then if a man lies comatose in the hospital, the dog has legal power to make decisions on his behalf regarding medical care?
Honestly that is such an easy argument to strike down, I wonder why it persists.
January 12, 2010, 3:39 pmDan Quailden says:
If 3 then:
I will not vote for a republican.
I will not vote for a democrat.
That I will vote at all is a question.
If I vote:
then I will vote for a third party candidate.
“If 3 then I want our system to fail as soon as possible so we can start over again.”
January 12, 2010, 3:45 pmreadery says:
It’s interesting that there was an article today about possible civil unrest in China because of male-female imbalances in spouses.
Obviously same-sex marriage creates the same kind of potential for imbalances for procreating that same-sex-only employment creates for earning a living. Its certainly possible that rthe same number of males and females will decide to stick together, just as it’s certainlypossible that blacks-only employment will exactly balance whites-only employment so that whites-only employment wouldn’t represent a problem for blacks. But that possibility wasn’t enough to render the Civil Rights Laws lacking in rational basis.
Similarly, in educational settings, the Court has repeatedly held that enabling children to experience a diverse environment is a compelling interest, or at least an important and legitimate one, justifying some overriding of color-blind interpretations of the Equal Protection Clause. Since a child’s early experiences have the greatest effect on its development, it seems difficult to understand how the state interest in gender diversty could rationally be considered less when the child is an infant than when it is in college.
January 12, 2010, 10:08 pmreadery says:
Finally, Congress created an exception to laws against same-gender vocational preferences if they serve a “legitimate business interest.” Can Congress, in light of Lawrence, rationally characterize seeking personal transcendence as illegitimate? After all, the poet Khalil Ghabrin wrote that “Our work is our love made manifest.” Can Congress rationally require work to be based on economic motivations or require it to serve economic purposes? Can it rationally forbid work based on and serving love as an adequate basis for freedom of association?
January 12, 2010, 10:15 pmle_sacre says:
I’m surprised that of all the people taking issue with the prediction that SCOTUS ruling an equal right to marriage will hand the next two elections to the GOP, none seems to have gotten to the heart of what the 2012 election will be like.
First of all, if SCOTUS takes the case, it will be settled law well in advance of 2011, no? So there’s a fair amount of time between that hypothetical ruling and the big campaign season, isn’t there? And we all know how quickly the public finds something new to react to.
More importantly, it will be all about Obama, a referendum on whether the public trusts him again to do the job. Obama could hardly have been more clear, all along (at after his state senate days), that he opposes same sex marriage. He’s also been (to the chagrin of many many formerly vehement supporters) quite pointedly silent and inactive on gay issues since the inauguration. It will be tremendously hard to paint him as “the gay marriage candidate” in 2012 (possibly unless he follows through on his campaign promise to get DOMA repealed, but this looks unlikely, especially in the first term). The only SSM line of attack will be suggesting that Obama’s nominees will be activist judges who will… what, exactly? We’re assuming here that the federal right to marriage equality has been established. We win. Game over!
My understanding is that even if the SCOTUS has a big change in membership, they’re pretty unlikely to reverse a precedent set just a few years before… and all the data indicate that as we move several years into the future, gay marriage will rapidly recede from the forefront of the culture war because it’s almost exclusively a concern of voters who are older and who do not know any gay people personally. Older voters are getting replaced every cycle with younger ones, and it’s getting harder and harder all the time to live in America without knowing a gay person.
That’s where I think the analysis has gone seriously astray, but it’s hard to tell since the rationale wasn’t really elaborated.
January 13, 2010, 5:10 amchiMaxx says:
readery says:
Readery: What evidence do you have that even suggests that same-sex marriage would substantially change the number of people who exclusively have romantic relationships with people of their own sex and never marry someone of the opposite sex? Absent that, how would the presence of same-sex marriage “create” imbalances for procreating? Given that gay people exist even in the absence of same-sex marriage, wouldn’t such imbalances already exist? What level of civil unrest is that causing now? If the number of gays who never marry someone of the opposite sex doubles because they can now marry a same-sex partner, will the current level of civil unrest double as well? How much unrest would that be?
January 13, 2010, 11:28 amJohn Herbison says:
Many opponents of same sex marriage posit that making same sex couples eligible to marry will somehow harm heterosexual marriage because, according to their view, the purpose of marriage is to bear and rear children. I have tried to understand this argument, but I am missing something.
Marriage does not produce children. The sexual coupling of a virile male and a fertile female–whether with or without benefit of marriage–produces children. A zygote does not ask whether its progenitors are married or unmarried to one another before developing further. Neither marriage nor begetting/bearing children is the sine quo non of the other. Sexual coupling by members of the same sex will not produce children if the participants are married to one another; neither will such coupling produce children if these same participants are not married to one another.
Assuming that permitting same sex couples to marry will increase the number of childless marriages, so what? What is the governmental interest in whether a marriage does or does not produce children? Please help me to understand what I am missing.
January 13, 2010, 12:00 pm