The Volokh Conspiracy

Rhode Island Governor Donald Carcieri (R) has vetoed a bill that would have allowed domestic partners to provide for the burial of their loved ones, just as spouses and blood relatives are entitled to do under state law.  

In a veto message, Carcieri said he rejected the bill because the one year minimum requirement for the domestic partnership is not enough to establish a “lasting bond.”  There’s also no reliable way to prove the existence of the relationship since Rhode Island doesn’t recognize domestic partnerships as a general matter. Of course, Carcieri would also oppose creating such a status.

Finally, Carcieri vetoed the burial law to protect “traditional marriage” from “incremental erosion.” 

The legislature passed the bill after hearing testimony from a man whose partner of 17 years went unburied for months while state officials rejected his requests to cremate the body as the dead man wished.  State officials were unmoved by the couple’s wills, living wills, powers of attorney, and a marriage certificate from Connecticut.

The 53%-47% loss for gay marriage in Maine is a beginning, not an end. We have been down this road many times, with gay-equality advocates losing the first (or first few) rounds in popular referenda on lots of issues other than marriage. In fact, gay-rights measures historically have not fared well in popular votes. In Maine in the 1980s, the state legislature passed a state anti-discrimination law, only to have it rejected by voters. It passed the law again, and voters rejected it again. It passed the law a third time, and voters approved it. After that, it was never repealed. A similar pattern might be reproduced with gay marriage in that state. A narrow loss can be made a narrow win. It’s coming.

There will be the usual post-mortems about the campaign in Maine. My sense from a thousand miles away is that “No on 1″ did a pretty good job of raising money, running an ad campaign, and operating a get-out-the-vote field effort. (Disclosure: I contributed to No on 1.)

Some will say that we should have included broader protection for religious liberty in the legislature’s SSM bill. But I don’t get the sense that the supposed erosion of religious liberty was the main Maine issue or that broader protection would have made an electoral difference. The battle also wasn’t about procreation or slippery slopes, which never featured in ads. And it wasn’t about the possibility that SSM might send a “message” that family structure doesn’t matter. People don’t really buy the notion that granting legal protection to existing families could send that message, any more than allowing second marriages or step-parent adoptions sends a message that it’s unimportant to have married biological parents raise their own offspring.

Instead, the central concern seems to have been what will be taught in public schools to children being raised by heterosexual parents. In one sense, it’s an odd focus for a debate about SSM. Once again, as in California, but with even less justification, SSM opponents falsely but effectively claimed that allowing gay couples to wed would mean “teaching” gay marriage in public schools when in fact kids will be taught about the existence of gay marriages in any event.

In another sense the obsessive focus on what’s being taught to kids is understandable because of its long historical pedigree. The not-so-subtle subtext of the debate over public schools, which has poisoned every public policy debate involving homosexuals, from decriminalizing sodomy to passing antidiscrimination laws, is that the gays are coming to get your kids. Exactly what “coming to get your kids” means will vary from person to person, but it’s not something parents want to chance.

It’s hard to counter that message without admitting a core truth: that allowing gay marriage will mean kids will think somewhat better of homosexuals. That’s a benefit of SSM, though not the most important one. SSM advocates haven’t quite figured out how to say that softening anti-gay attitudes will make us better citizens without making kids into little Liberaces.

Maine was disappointing, though the bigger loss for SSM may have been the defeat of a pro-SSM governor in New Jersey, where the campaign had nothing to do with SSM and the governor ran under the slogan, “my opponent is a fatso.” The New Jersey legislature may yet enact an SSM bill in the lame-duck session, but that’s far from certain.

Something is turning in this debate, though. With close popular votes in two states in the last year, little prospect of additional anti-SSM state constitutional amendments, coming legislative action in more states and D.C., the first-ever electoral victory for civil unions in an election last night in Washington state, gay marriage completely secure in four of five states that still have it, and a federal marriage amendment in rigor mortis, the question is not really whether, but when and where next.

Today the DOJ filed its motion to dismiss in another case challenging the Defense of Marriage Act, Gill v. OPM, pending in a Massachusetts district court. 

It argues that DOMA is constitutional because (1) there is no basis for applying heightened scrutiny to the denial of federal benefits to same-sex couples married in Massachusetts, and (2) DOMA is rationally related to the federal interest in preserving the status quo and in following longstanding practices while letting states experiment with same-sex marriage. It comes close to explicitly asserting that tradition itself — without more — is a sufficient justification for a classification on rational-basis review, where there is a presumption of constitutionality. I may have more to say about it later, but for now I don’t see anything very surprising in the brief. 

This morning’s Times has a lengthy story about how Ted Olson came to file a federal lawsuit challenging the constitutionality of Prop 8 and, by implication, all laws limiting marriage to one man and one woman. 

One interesting thing about the article is how few right-leaning commentators are cited as publicly criticizing Olson, a stalwart of the Federalist Society and the conservative/libertarian legal movement since the Reagan era. Robert Bork doesn’t want to get into a public argument about it. He just wants to know why Olson joined the other team. William Bradford Reynolds mildly chides Olson for taking “a more assertive view of how one should interpret the Constitution than you would normally expect Ted to take.” 

A quote from Steve Calabresi implies that Olson’s lawsuit might echo “a certain libertarian squishiness at the Office of Legal Counsel [in the Reagan Justice Department] under Ted.” I take Calabresi’s suggestion at two levels. First is the idea that libertarians are often more willing than conservatives to support the use of courts to enforce favored policy outcomes. That’s debatable given the experience of recent years, but let’s leave to one side the overlay of the judicial role specifically in bringing same-sex marriage. One could fully support same-sex marriage, for any number of reasons, libertarian or otherwise, and still not believe the judiciary should impose it. 

The second implication is that libertarians support gay marriage. I think that’s descriptively true: libertarians are far more likely than traditional conservatives to support same-sex marriage. But as a substantive policy matter, it’s hard to see same-sex marriage as a genuinely libertarian cause. It enlarges the empire of marriage, and thus of state regulation. It’s true that one voluntarily enters this system of regulation, but the government offers many special advantages and inducements to enter it. From a libertarian perspective, marriage is a subsidy made available to encourage us to lead a certain kind of life favored by the government, just as the state encourages us to own a home, go to college, contribute to charity, buy fuel-efficient cars, etc. In part because of its channelling and traditionalizing potential, same-sex marriage is a conservative cause, in my view, though I appear to be one of about five people in the country who actually believes this. 

So what explains libertarian support for SSM? Libertarians have been more willing than traditional conservatives to oppose government-sponsored discrimination against gays and lesbians. Libertarians are also less likely to allow their religious views to dictate their public-policy preferences and are also less likely to presume that traditional practices should enjoy any presumption. 

These considerations might lead a libertarian to support same-sex marriage as long as state-sponsored marriage remains, as seems likely. But I would think that’s a second-best world for most libertarians, who would prefer a more privately ordered state of, shall we say, affairs. 

It’s also possible that some libertarians might support same-sex marriage as enlarging the “liberty” or choices of gay persons. But again this libertarian gain should be qualified: same-sex marriage is an induced choice to enjoy “liberty” within a very constrained and state-designed system of official recognition and obligation. In the popular conception, libertarianism is often confused with libertinism, perhaps because libertarians tend to support things like legalized prostitution and drug decriminalization. At the same time, gay marriage is sometimes identified with “sexual liberty,” as one prominent academic supporter recently characterized it. But marriage would provide no sexual liberty gays do not already enjoy. Married gays are not really “free at last.” They’re more aptly described as unfree at last.

So I would not identify support for same-sex marriage with libertarian squishiness, or libertarian firmness, or libertarian anything. That doesn’t especially bother me, since I’m not a libertarian. I’m at most a conservative with libertarian leanings, a faint-hearted libertarian. But I am curious about how actual libertarians arrive at their support for same-sex marriage, at least on libertarian grounds. 

The Obama Justice Department today filed a reply brief supporting its motion to dismiss in Smelt v. United States, a constitutional challenge to DOMA filed a few months ago in a California district court. Readers may remember that back in June the DOJ supported its motion to dismiss with some merits arguments that justifiably angered gay-rights groups. The June brief opposed just about every constitutional argument gay-rights supporters have been making for more than three decades. 

What a difference two months can make. While the DOJ hasn’t retracted its earlier arguments, its new brief is much more friendly to gay families in tone and in substance. It also emphasizes the plaintiffs’ lack of standing and suggests that a ruling on the merits would be unnecessarily broad. The original motion could have been this narrow and done the job. 

Consider this almost apologetic, but also uncontroversial, passage:

With respect to the merits, this Administration does not support DOMA as a matter of policy, believes that it is discriminatory, and supports its repeal. Consistent with the rule of law, however, the Department of Justice has long followed the practice of defending federal statutes as long as reasonable arguments can be made in support of their constitutionality, even if the Department disagrees with a particular statute as a policy matter, as it does here.

There was nothing like this anti-DOMA language in the June brief. There was no mention of the administration’s anti-DOMA policy views. The DOJ labels DOMA a form of discrimination, although it doesn’t say what kind. Back in June, the DOJ went out of its way to argue that DOMA does not discriminate on the basis of sex or sexual orientation. In fact, the new brief makes no new argument for DOMA, and only vaguely says it supports the value of “federalism.”

Much more significantly, and to me surprisingly, it now appears to be the view of the executive branch that the social interests in child-rearing and procreation do not even rationally justify the exclusion of gay couples from marriage:

Unlike the intervenors here, the government does not contend that there are legitimate
government interests in “creating a legal structure that promotes the raising of children by both of their biological parents” or that the government’s interest in “responsible procreation” justifies Congress’s decision to define marriage as a union between one man and one woman.

This new position is a gift to the gay-marriage movement, since it was not necessary to support the government’s position. It will be cited by litigants in state and federal litigation, and will no doubt make its way into judicial opinions. Indeed, some state court decisions have relied very heavily on procreation and child-rearing rationales to reject SSM claims. The DOJ is helping knock out a leg from under the opposition to gay marriage.

Next comes this passage, suggesting that empirical learning has bolstered the case for gay and lesbian parenting:

Since DOMA was enacted, the American Academy of Pediatrics, the American Psychological
Association, the American Academy of Child and Adolescent Psychiatry, the American Medical Association, and the Child Welfare League of America have issued policies opposing restrictions on lesbian and gay parenting because they concluded, based on numerous studies, that children raised by gay and lesbian parents are as likely to be well-adjusted as children raised by heterosexual parents.

The idea that same-sex parents are inadequate or at least sub-optimal has been a major point in the public-policy opposition to SSM, and was used to support passage of DOMA. The DOJ now implies that DOMA is anachronistic, a holdover from a benighted time when we didn’t know so much about the quality of gay parenting. The parenting concern has also been a reason for deference by state courts: as long as there was still a legitimate debate over the quality of same-sex parenting, courts ought to defer to states’ judgments that traditional families are best. While the DOJ hasn’t exactly endorsed the view that the parenting debate is over, this passage certainly points us in that direction.

Finally, the DOJ brief shows that Justice Scalia’s dissent in Lawrence v. Texas is coming back to haunt the opposition to SSM. Recall that in Lawrence Justice Scalia warned that the Court was dismantling the constitutional structure supporting traditional marriage. Why? Because, Justice Scalia argued, if traditional moral opposition to homosexuality is no longer a valid basis for law, there remain no other good constitutional reasons to oppose SSM — even on rational basis review. Scalia specifically mentioned that gay couples’ inability to procreate — a critical point to “natural law” theories against SSM and to some courts — would be insufficient. Now comes the DOJ armed with arguments from Justice Scalia:

Furthermore, in Lawrence v. Texas, 539 U.S. 558, 605 (2003), Justice Scalia acknowledged
in his dissent that encouraging procreation would not be a rational basis for limiting marriage to opposite-sex couples under the reasoning of the Lawrence majority opinion – which, of course, is the prevailing law – because “the sterile and the elderly are allowed to marry.” For these reasons, the United States does not believe that DOMA is rationally related to any legitimate government interests in procreation and child-rearing and is therefore not relying upon any such interests to defend DOMA’s constitutionality.

While gay-rights groups complain that the DOJ is continuing to defend the constitutionality of DOMA (see here and here), and are understandably disturbed by the still-unabandoned arguments the DOJ made back in June, they should be delighted by the turn taken in this reply brief. It will serve the cause of SSM in state and especially federal courts for years to come.

(HT: Law Dork)

John Culhane is continuing a series of posts this week on religious liberty and gay marriage. (See here, here, and here) The posts have been very informative and lively. In today’s post, he takes the view that there is no need for special religious-liberty exemptions in SSM but offers an especially creative and interesting alternative. The core of the proposal is this:

Why not simply remind the [religious] objectors – I’d support a law spelling this out – that they have a right to clearly state that they oppose same-sex unions and would “prefer to step aside” (borrowing and repurposing language from Professor Wilson here) for religious reasons. There might even be standard, respectful language suggested (not mandated, but perhaps bulletproof), making clear that the proprietor’s objection is based on religion, not animosity. What same-sex couple wouldn’t respect that, and go somewhere else – if they could?

If they couldn’t – the dreaded one-florist town! – the couple could, under my proposal: (1) forego flowers (gasp!); (2) if botanically feasible, order some from out-of-town, or (3) fail to respect the wishes of the religiously objecting florist and use their services anyway. Wilson et al. would achieve that result through a “hardship exception” (only in a wedding-obsessed culture could the possibility of having no flowers at a wedding be thought of as a “hardship,” by the way), but then we might find ourselves litigating the issue of hardship. “We had a hardship.” “No, you didn’t.” Please, stop. Let’s not invent laws we hardly need.

Let’s be clear what we’re talking about here: a situation in which a gay married couple or a gay couple about to get married seeks some good or service as a couple and is refused that good or service on the grounds that the provider objects to gay marriage (not gay people) for religious reasons. The gay couple nevertheless wants to force the transaction by seeking some legal remedy under a state antidiscrimination law that (a) applies to the transaction and (b) is not already subject to an exemption for religious objectors. I have found no reported cases so far in which all these conditions were present. But that doesn’t mean they won’t ever happen. It is for dealing with such cases that we are seeing proposals for special religious-liberty exemptions that apply to the provision of goods or services related to a gay marriage or to the status of being in a gay marriage.

Culhane’s proposal for dealing with what seems likely to be a very rare confrontation will not please purists on either side, who really want maximum cultural conflict over this issue. On the pro-SSM side, some will insist that allowing a florist to put up a “no gay couples” sign is repugnant, even if the florist in fact is required not to discriminate. To them it would be akin to inviting Ollie’s BBQ to put up a sign saying “no colored folks — but the law requires us to serve you anyway.” On the anti-SSM side, some will insist that the signs are just window-dressing, provide no legal protection, and may expose business owners to even more litigation by advertising their aversion to gay marriage. 

But if, as I suspect, (1) gay couples will generally not want to work with business owners who make it plain that they object to same-sex marriages, and (2) only the most sincerely and deeply religious objectors would put up such a sign, the number of religious-liberty legal confrontations over SSM ceremonies should be reduced.

The potential difficulty with Culhane’s proposal is that it might be too clever and subtle to work politically. How do you sell the idea that a business owner has a right to put up a sign but no right to act on the message in the sign?

An alternative would be to include a specific religious-liberty exemption in SSM laws but require the sign display (“no gay couples”) as a condition of being protected by the exemption. This should also reduce litigation, for the same reasons discussed above. Only the serious culture warriors will force the issue. I suppose there might be a First Amendment objection to requiring the sign display as a condition for getting the protection of the exemption. But since the exemption itself is not constitutionally required, that would be a complicated and doubtful claim. 

I’m open to either alternative in principle, since in my view there is very little legal or experiential justification for special religious-liberty carve-outs in laws authorizing SSM, but some accommodation may be necessary politically to assuage SSM moderates in state legislatures and in referenda. 

Professor John Culhane is doing a series of posts this week on the nature, extent, and potential resolution of conflicts between religious liberty and the legal recognition of same-sex marriage. The first post, a useful and interesting taxonomy of the issues, is up this morning. I recommend it to those who follow the subject.

The federal complaint in Commonwealth v. HHS was filed yesterday by Massachusetts, which is asking for federal recognition of its same-sex marriages, not for the invalidation of all state laws limiting marriage to opposite-sex couples. Massachusetts makes two federalism-based constitutional claims against Section 3 of DOMA, which defines marriage as the union of one man and one woman for purposes of federal law.

The first claim is that Section 3 “violates the Tenth Amendment, exceeds Congress

The Delhi High Court has held unconstitutional a colonial-era law that provides: “Whoever voluntarily has carnal intercourse against the order of nature with
any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.” The law was originally understood to forbid any non-procreative sex, including heterosexual sex, but has been used mainly by police and others to harass, intimidate, and threaten gays and lesbians in the country. You can download the decision in PDF format in the main story on the decision for the Times of India, here, where you’ll also find numerous related stories giving reactions from gay groups, religious leaders, and legislators.

The decision is subject to review by the Supreme Court of India, but most observers expect it to stand.

The Delhi court held that the law violates fundamental constitutional rights to privacy and liberty, and denies equality to gays and lesbians. Sound familiar? The court cited Lawrence v. Texas, among many other recent foreign decisions, and quoted extensively from Justice Kennedy’s majority opinion. The final paragraphs of the opinion, though referring to India’s own constitutional history, resonate with Justice Kennedy’s similar conclusion that constitutional protection of liberty and due process are self-consciously spacious concepts that shouldn’t be limited to the specific expectations of one age or one set of people:

The notion of equality in the Indian Constitution flows from
the 

That’s what President Obama has concluded. Here’s the transcript of the president’s remarks at the White House today. 

To deal with this grave and urgent threat to national security, the Commander-in-Chief announced that he will immediately:

(1) Suspend enforcement of DADT in its entirety for the duration of the war, claiming ample constitutional and statutory authority.

(2) Issue a stop-loss order barring DADT expulsions for certain classes of “mission-critical” specialists.

(3) Order the Defense Department to halt DADT investigations and other inquiries into soldiers’ sexual orientation.

(4) Demand that Congress act now to repeal DADT.

(5) Ask that a plan be developed on an unspecified time schedule for the repeal of DADT at some indefinite point in the future.

(Pick one.)

Today the governor signed a biennial budget bill that includes limited but important protections and rights for registered same-sex domestic partners.

Wisconsin is the first state in the Midwest to grant recognition to gay families by legislative action. Iowa has marriage by state supreme court decision. So far, there’s no recognition or legal protection for gay families as such in neighboring Illinois (where the state government is unusually dysfunctional) or in Minnesota (where the governor vetoed even a bill limited to hospital visitation).

Wisconsin is also the first state with a constitutional amendment banning SSM and civil unions to create a domestic partnership status for same-sex couples. A state legislative committee concluded that the bill does not violate the state amendment, passed by voters in November 2006, limiting marriage to opposite-sex couples and barring any status “identical or substantially similar to that of marriage” for unmarried couples.

That seems right. The Wisconsin law gives domestic partners about 40 rights (out of the more than 1,000 rights given to married couples), including the rights to visit a partner in the hospital, to take leave to care for a sick/dying partner, and to inherit a partner’s property intestate. Thus begins a process by which state legislatures around the country will be testing the reach of some of the recent state constitutional amendments banning SSM and civil unions.

On the eve of gay pride weekend, the Office of Personnel Management (OPM) has apologized to veteran activist Frank Kameny for firing him in 1957 solely because of his homosexuality. The letter, from the director of OPM, says in full:

Dear Dr. Kameny: 

In what we know today was a shameful action, the United States Civil Service Commission in 1957 upheld your dismissal from your job solely on the basis of your sexual orientation. In one letter to you, an agency official wrote that the Government 

Yesterday I posted some results from a new Census study comparing married same-sex couples and married opposite-sex couples, and comparing both to unmarried same-sex couples. The study concluded that in many significant ways — including likelihood to be raising children, income, home ownership, education, and race — gay and straight married couples were very similar, and unlike unmarried gay couples. The study also furnished evidence for some surprises, like the possibility that lesbian couples might be less likely to get married (or consider themselves married) than gay male couples. 

But there’s a potential problem in at least some of the Census numbers, which are inconsistent with some of the work done by demographers who have studied same-sex couples. Gary Gates, a noted demographer and researcher at UCLA (and a gay-marriage supporter), writes in an email to me:

One of the take-aways from the [Census] report is that married same-sex couples look quite a bit like their different-sex counterparts. That may very well be true, but one reason for the similarity is that it’s quite possible that a very large portion of the married same-sex couples are, in fact, different-sex married couples who miscoded their sex. I’ve attached a paper (presented at the same session of the Population Association of America conference as the Census paper) that describes the difficulties in interpreting the married same-sex couple data.

From other work I’ve done, we know that married same-sex couples are 2-to-1 female and that women are more likely than men to be in a partnership. This isn’t very consistent with the Census findings. Our analyses suggest that the sex miscoding problem among married different-sex couples creates more male same-sex couple miscodes than female. That could explain the Census findings.

There are several other findings that are not consistent with information we have about differences between cohabiting same-sex couples who are or are not in legally recognized relationships. For example, in a paper I published recently in Demography (with Christopher Carpenter), we show that those in registered domestic partnerships (in CA) [“RDPs”] have higher income and education levels and are more likely to be white than those who are not registered. These are the same patterns we see among heterosexual couples (comparing married v. unmarried) and contradict the Census findings. We also find no evidence of higher rates of child-rearing for those in RDPs in men and modest evidence of differences among women. Granted, RDP and marriage are not the same, but folks should be very cautious in interpreting the Census findings.

I think it’s a very positive step that the Census released an analysis of the same-sex spouses. But it’s just a first step. Much more work is needed to better understand who the married same-sex couples are and how many are miscodes.

If Gates is right about the coding problems, the miscoding would have skewed the results in favor of similarities since opposite-sex couples would have been included in the “same-sex” data. So gay and straight couples may be alike in many of the ways the Census Bureau suggested, but the new Census data do not necessarily support that hypothesis. A lot more work is needed, including more work based on the 2010 Census itself. In the meantime, modesty and caution about this new Census data are in order — more modesty and caution than I used yesterday. 

UPDATE: For some interesting historical background on an especially noxious Census error, see here.

Gay and straight married couples are demographically very similar in terms of likelihood to be raising children, age, income, race, whether they own or rent a home together, education levels, and employment. And both are unlike unmarried same-sex partners (and, I suspect, unmarried straight couples), who skew younger, more educated, more wealthy, are much less likely to be raising children, and are much less likely to have invested in a home together. 

That’s what the Census Bureau has concluded based on a sample of same-sex couples who live together and self-report as married, although the Census Bureau does not verify whether couples (gay or straight) are legally married.

Here’s the Census Bureau chart, which you can enlarge by clicking on it:

If you can’t see it well above, you can find it here.

There are many fascinating results here, only a couple of which I want to highlight now. 

The data about child-raising is especially significant since one common argument in the SSM debate is that marriage is centrally about providing a stable environment for children. Straight married couples are somewhat more likely to be raising children (43%) than are lesbian married couples (38%) or gay-male married couples (32%). But the difference is not huge, and separates all three categories from unmarried couples, gay and straight, who are far more likely to be childless. And while lesbian married couples are more likely to be raising children, the difference between them and gay-male couples is not nearly as large as commonly thought. 

Also, a higher proportion of gay male couples are married (or consider themselves married) than are lesbian couples (52% of gay male couples v. 42% of lesbian couples). Among other things, this means proportionately more lesbian than gay male couples are raising children outside of marriage (20% v. 8%). 

The debate over gay marriage is moving from the abstract to the empirical. That’s especially true as more states gain more experience with actual gay marriages. Unfortunately, the Census Bureau has resisted including gay married couples in the decennial census, arguing that DOMA forbids it. I’m not sure that’s right, though of course the existence of DOMA didn’t stop the Census Bureau from collecting this data. (UPDATE: The Wall Street Journal says the White House has now abandoned that interpretation of DOMA and is directing the Census Bureau to find ways to include same-sex married couples in the 2010 census.) 

None of this demographic information proves that gay marriage “caused” anything in particular. Among other things, it seems likely that gay couples who fit a traditional profile (have children, own a home) are more likely to get married than those who don’t. And of course it doesn’t resolve the debate over whether states should permit gay couples to marry. 

But it does fill in some important missing information about what gay families and gay marriages look like. And it turns out that, in some significant respects at least, they look a lot like traditional ones.

(HT: iMAPP)

UPDATE: Some caution about this Census data, here.

In a brief and perfunctory prepared statement, read carefully from a script, President Obama just signed an order a presidential memorandum directing federal departments to grant some benefits to employees’ same-sex partners requesting federal departments to review over the next 90 days whether they can grant some benefits to employees’ same-sex partners under federal law. The presidential memorandum itself is here. The new benefits would include things like sick leave for partners, the use of medical facilities, access to long-term care benefits, and instruction in foreign languages, if such benefits are otherwise available to spouses. 

Federal law (5 USC 8901) blocks the Office of Personnel Management from granting same-sex couples the most important things — like health benefits. Broader relief will come only through the repeal of DOMA or, for federal employees specifically, through the proposed Domestic Partners Benefits and Obligations Act. Obama reiterated that he supports both goals. He also promised that he will work “tirelessly” in the “days and years to come” to achieve them. A few days ago, Obama’s liaison to the gay community said that action on anything significant is a long way off. 

Interestingly, Obama’s rhetoric was at odds with his own Justice Department’s brief, filed late last week, defending the constitutionality of DOMA. Obama called DOMA “discriminatory,” though he never said on what grounds he thinks it’s discriminatory. His DOJ last week maintained that DOMA doesn’t discriminate based on sexual orientation or sex, the two most obvious ways in which one might think it discriminatory. I may have missed it, but Obama never used the words “gay” or “lesbian” or “gay couples/families,” only the more neutral and palatable “same-sex partners” and the esoteric “LGBT.”

Obama also asserted that DOMA “interferes with states’ rights,” presumably because it changes the historical rule that federal benefits to spouses are available based on a state’s own definition of marriage. This allowed states to define marriage for themselves, even if other states define it differently. But last week, the DOJ remarkably asserted that when it comes to same-sex marriages — and such marriages alone — the usual federal presumption means that objecting states would be forced to subsidize gay unions in other states. In other words, the DOJ argued that respecting “states’ rights” means not recognizing gay marriages under state law. 

The DOJ brief has been subjected to intense criticism over the past few days. But Obama made no mention of that squalid document in his statement today. Will it be withdrawn or modified?

With his back-pedalling on DADT, no action on DOMA, nothing done to lift the HIV travel ban, nothing ventured to allow same-sex partners to immigrate, and employment protection and even a useless hate crimes bill stalled in an overwhelmingly Democratic Congress, lots of Obama’s strong gay-rights supporters are becoming restive. Obama has been neither the moral nor the political leader they expected. It’s still early and he’s had a lot on his plate. But presidents always have more pressing matters to attend. And if history is any guide, he’s now at the height of his political power. Today’s action was, it seems, the least he could do.

UPDATE: Nan Hunter has a typically smart post on the president’s action today. It’s basically a bare-bones instruction to executive departments to take action in the future. Could have been issued months ago, but it’s timed to throw a sop to some upset supporters.

In examining the provincial breakdown of the Iranian election results, I noticed some strange things. 

First, while Mousavi was leading Ahmadinejad by 2 to 1 in Tehran in a poll last week, Ahmadinejad won Tehran 52% to 46% in the reported election results. In an authoritarian state, one would expect polling to understate the popularity of the opposition.

More seriously, the great enthusiasm and strong turnout in the election was presumed to be from those voting for Mousavi and change, but the official turnout in areas that favored Ahmadinejad most strongly was much higher than in areas where Mousavi did relatively well.

Here is the breakdown in the six provinces with turnouts over 90% (91.6% — 99.4% turnouts):

Ahmad. 68, Mousavi 31

Ahmad. 56, Mousavi 42

Ahmad. 46, Mousavi 34

Ahmad. 68, Mousavi 31

Ahmad. 77, Mousavi 22

Ahmad. 73, Mousavi 26

All but two have Ahmadinejad receiving at least 68% of the vote. The unweighted average of these six high turnout provinces was Ahmadinejad 64.7%, Mousavi 31.0%. 

In the next six highest turnout provinces, all six gave Ahmadinejad at least 69% of the vote.

Here are the results in the six provinces with turnouts under 80% (63.4% — 79.2% turnouts):

Ahmad. 53, Mousavi 44

Ahmad. 47, Mousavi 50

Ahmad. 65, Mousavi 27

Ahmad. 46, Mousavi 52

Ahmad. 59, Mousavi 39

Ahmad. 51, Mousavi 47

Note that all six low turnout provinces are recorded at 65% or less for Ahmadinejad and five of the six are recorded as voting for Ahmadinejad by less than 60%. The unweighted average of these six low turnout provinces was Ahmadinejad 53.5%, Mousavi 43.2%.

In the provinces with the next six lowest turnouts, four provinces reported 66% or fewer votes for Ahmadinejad. 

I find it highly suspicious that the high turnout provinces tended to go stronger for Ahmadinejad than the low turnout provinces. Of course, it is possible that the electorate did not trust the anonymity of the voting process, which might have led to a lower turnout in opposition strongholds. 

So far, the response of the Obama Administration to the Iranian election must be a disappointment to all those who desire freedom for oppressed people around the world. The response has been compared to that of George H.W. Bush to the events preceding the fall of the Berlin Wall, which initially was similarly “flat-footed.” (tip to Instapundit) This is in marked contrast to Ronald Reagan’s insightful encouragement of rebellion against Communism in the 1980s.

Hillary Clinton expresses the wait-and-see approach of the Obama Administration:

Today the state legislature passed, and the governor quickly signed, a same-sex marriage bill. (It becomes effective January 1.) Six states now permit the marriages of gay couples under state law. Three of those have done so by legislative action.

Congratulations to New Hampshire Freedom to Marry, which lobbied for the bill, and to gay families in the state.

The state legislature overrode the Governor’s veto. The vote was 28–14 in the state assembly, and 14–7 in the state senate, exactly the amounts needed in each house. 

The governor had argued that a 2002 state constitutional amendment banning gay marriage precluded the partnership bill. While I haven’t seen the text of the Nevada bill, it apparently grants same-sex (and opposite-sex) couples substantially all of the rights and protections of marriage when they register as domestic partners. By my count, Nevada was one of nine states that amended its constitution to ban only same-sex “marriage” and not also “similar” unions. Three of those nine states (California, Oregon, and Nevada) now have broad domestic partnership laws. 

Into today’s issue of The New Ledger, I analyze some of the reader comments from last week’s reader comments to a collection of pro/con essays in the on-line New York Times, regarding guns in National Parks.

This week’s National Journal poll of political bloggers asked: “What is Vice President Biden’s impact on the Obama administration?” Of Left-leaning bloggers, 81% said that he is helping “a lot” or “a little.” On the Right, nobody thought he was helping a lot, and 23% thought he was helping a little. Fifty-four percent said “Hurts a little.”

I voted with the Right majority, and wrote: “Was supposed to be a wise expert in foreign policy. Now rather comical. In the last six months, has greatly underperformed Sarah Palin.”

The results page also include the blogger poll on Sonia Sotomayor, which was published earlier this week, and discussed previously on the VC.

The Convention Against Torture defines torture as:

any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions. 

The United Nations Committee Against Torture oversees the implementation of the treaty. Among the nations which have ratified the CAT is Nicaragua. The government of Nicaragua, which is currently led by the Sandinista National Liberation Front, has outlawed abortion in all circumstances. A May 15 report from the UN Committee suggested that the ban is a violation of the Convention Against Torture. In the country report for Nicaragua, the Committee wrote:

The Committee was deeply concerned about Chile

A special poll of bloggers from The National Journal asked “Would it be politically smart for Republicans to try to block the confirmation of Judge Sonia Sotomayor?” Among the Left bloggers, the unanimous answer was “No.” On the Right, 53% said “No” and 47% said “Yes.”

I voted “Yes,” and wrote: “The Democrats who tried to block Roberts and Alito appear to have suffered no adverse consequences. [And, I should have added, neither did the Dems. who filibustered Miguel Estrada, who, like Sotomayor, is a Hispanic with an impressive life story.] Sotomayor is on the wrong side of fairness, empathy, the Constitution and the American people in regards to firearms ownership (Maloney v. Cuomo; United States v. Sanchez-Villar); wealthy people using the government’s eminent domain power to extort money from small business (Didden v. Village of Port Chester); and a racial spoils system for government employees (Ricci v. DeStefano).”

It’s apparently been filed by David Boies and, interestingly, Bush SG Ted Olson:

is now “the constitutional right to establish, with the person of one’s choice, an officially recognized and protected family relationship that enjoys all of the constitutionally based incidents of marriage (or, more briefly, the constitutional right to establish an officially recognized family relationship with the person of one’s choice).” Strauss v. Horton, p. 35.

One of the most striking things (rhetorically, at least) about today’s Prop 8 decision is the extent to which the court labors to minimize its decision just a year ago in In Re Marriage Cases. Recall that in Marriage Cases the underlying issue was not really whether the state was obliged to provide gay couples specific rights “incident to marriage” (e.g., intestacy rules, adoptions, powers of attorney, hospital-visitation rights). With trivial exceptions, as the court recognized, California’s domestic partnership law had already done that. Instead, the petitioners sued to have their relationships recognized as “marriages,” title and all, on the theory that anything different would violate the right to marry and embody a suspect classification. 

Back then, the state supreme court repeatedly referred to the right “to marry” and to “marriage” as the main issue in a case styled, after all, Marriage Cases. The court explicitly rejected the state’s last line of defense — that while gay couples might be entitled to all of the “incidents” of marriage the state could leave the designation of “marriage” to opposite-sex couples. Back then, the court warned darkly that denying the title of “marriage” to gay families risked second-class citizenship, harm to children, and loss of dignity:

[T]he exclusion of same-sex couples from the designation of marriage works a real and appreciable harm upon same-sex couples and their children. As discussed above, because of
the long and celebrated history of the term 

Under the decision of the California Supreme Court in Strauss v. Horton, would the following change to the state constitution be an amendment or a revision?

Reserving the official designation of the term 

Both of my grandfathers served, one in Europe and one in the Pacific. They lived with that war their entire lives but, like so many others, rarely talked about it. The National WWII Memorial has created a database to preserve the names and experiences of those who helped win the war, both in uniform and on the home front. You can find or register an honoree here.

After a longer-than-anticipated delay, the California Supreme Court will issue its opinion in the Proposition 8 challenge on Tuesday at 10 a.m. Pacific time. There are two basic questions before the court: 

(1) Is Prop 8 a valid “amendment” of the state constitution or an invalid “revision”? 

(2) If Prop 8 is valid, and thus marriage is now limited under the state constitution to one man and one woman, what is the status of the thousands of California same-sex marriages entered between June and November 2008?

The conventional wisdom has been that the court will uphold Prop 8 but will also declare that the interim same-sex marriages in the state are valid.

it includes broader religious exemptions. The statement Gov. John Lynch just released is available on his website. It will infuriate SSM opponents and puzzle many supporters. Lynch initially said he opposed same-sex marriage and thought the state’s civil unions law passed two years ago was good enough for gay couples. Now he says he’ll sign the same-sex marriage bill recently passed if the state legislature adopts additional protections for religious objectors. Otherwise, he’ll veto it. 

His proposal includes this key provision, borrowing partly from a religious-exemption proposal initially made a few weeks ago by several law professors and partly from language included in recently successful Maine and Vermont SSM laws:

Notwithstanding any other provision of law, a religious organization, association, or society, or any individual who is managed, directed, or supervised by or in conjunction with a religious organization, association or society, or any nonprofit institution or organization operated, supervised or controlled by or in conjunction with a religious organization, association or society, shall not be required to provide services, accommodations, advantages, facilities, goods or privileges to an individual if such request for such services, accommodations, advantages, facilities, goods or privileges is related to the solemnization of a marriage, the celebration of a marriage, or the promotion of marriage through religious counseling, programs, courses, retreats, or housing designated for married individuals, and such solemnization, celebration, or promotion of marriage is in violation of their religious beliefs and faith. Any refusal to provide services, accommodations, advantages, facilities, goods or privileges in accordance with this section shall not create any civil claim or cause of action or result in any state action to penalize or withhold benefits from such religious organization, association or society, or any individual who is managed, directed, or supervised by or in conjunction with a religious organization, association or society, or any nonprofit institution or organization operated, supervised or controlled by or in conjunction with a religious organization, association or society.

On the whole, this would be the broadest religious exemption yet adopted as the price for allowing gay couples to marry. There is quite a bit to chew on, and I’m interested in reactions from those with expertise in antidiscrimination law. 

Here are a couple of initial thoughts. First, as broad as it is, the governor’s proposed language does not apply to state workers. Second, it does not apply to “any individual,” but only to those individuals “managed, directed, or supervised by or in conjunction with” a covered religious entity. Both of those are commendable limitations on the reach of the exemption, for reasons I’ve discussed previously. But the “in conjunction with” phrase — covering individuals and nonprofits associated in some way with covered religious entities — is potentially quite broad. Unlike other exemptions, it’s not clear to whom it’s supposed to apply.

I’ve previously argued (see, for example, here) that the substantive legal case for religious exemptions in SSM legislation is not very compelling. But these exemptions, it seems to me, are primarily political in the sense that they allow legislators (and in this case, a governor) to tell both sides how much they’ve done to protect their interests. Governor Lynch could be expected to demand an especially high price since he must be given cover to explain his reversal.

If I were a state legislator, I’d be inclined to accept Lynch’s proposal. Accepting the proposal means that gay couples can marry now and that New Hampshire will become the sixth state to authorize it. The actual imposition on same-sex couples will probably be small and largely symbolic, though I’d want to know more about its expected application. Rejecting the proposal may mean no SSM in New Hampshire for years, at least until this governor is gone or can be persuaded to relent.

With the passage of each new SSM bill, the pressure to adopt specific religious exemptions and to expand their coverage is growing. Make no mistake: a baseline is being established in New England.

UPDATE: It appears New Hampshire Freedom to Marry, the main pro-SSM group, supports the governor’s proposal. They’re indicating that a legislative hearing on the proposal will be held Tuesday.

This post continues a discussion I have been having with five law professors (Tom Berg, Carl Esbeck, Rick Garnett, Doug Laycock, and Robin Wilson) who have proposed that state legislation authorizing same-sex marriage should include a special, broad exemption for religious objectors. The proposal, my questions about it, and the professors’ responses can all be found at one link here. I’ll assume interested readers (all six of us!) are familiar with the draft proposal and with the exchange so far.

The six of us appear to agree that, as Robin Wilson put it in her measured op-ed in the LA Times on Sunday, “It’s possible to legalize gay marriage without infringing on religious liberty.” That separates us from the National Organization for Marriage and some others who warn of irreconcilable and intolerable conflicts between gay marriage and religious liberty. (I should add that I don’t know whether Berg, Esbeck, Garnett, and Wilson themselves oppose state recognition of gay marriage on other grounds. Laycock supports it.)

We do have some differences on the scope of the conflict and thus on the breadth of any needed accommodation. The bottom line is, I think there are genuine and substantial concerns about the reach of some state antidiscrimination laws. But I think the distinctive contribution of SSM to these conflicts has been small, is likely to remain small, and thus that the case for special religious exemptions in SSM bills is not very strong. While the substantive legal case is unproven, the political case is stronger. In that sense, I welcome this new focus in the SSM debate and I am grateful for the practical work being done by scholars like Berg et al. to alleviate the concerns of traditionalists while making space for the full protection of gay families.

I. SSM and religious liberty: the experience so far

Like much of the rest of the debate over the effects of gay marriage, the question whether SSM threatens religious liberty – either by itself or in combination with various state antidiscrimination laws – is no longer a wholly theoretical one. We have now had full gay marriage in Massachusetts for five years. We have had gay marriage or the legal equivalent of it in Vermont since 2000, in California since 2005, in Connecticut since 2005, in New Jersey since 2006, in New Hampshire since early 2008, and in Oregon since early 2008. (Other states have formally recognized same-sex relationships, while granting a much more limited set of rights: Washington (2007), Maine (2004), Hawaii (1997), Maryland (2008), and D.C. (1992).) I leave out Iowa (2009) and Colorado (2009), where recognition is still fresh. 

Just counting the pre-2009 SSM and civil-union states, covering about one-fifth of the U.S. population, that’s a combined 27 years’ worth of experience fully recognizing gay relationships. Each of those seven states also has broad laws forbidding discrimination on the basis of sexual orientation in areas like employment, education, housing, public accommodations, and so forth. Each of those states also prohibits discrimination on the basis of “marital status” in housing and/or employment.

In these seven states, tens of thousands of gay couples have been married, civilly unionized, or domestically partnered over the past decade. They have had ceremonies, selected caterers, rented halls, ordered flowers and invitations, been fitted for dresses and tuxes, chosen professional photographers, hired clergy and non-clergy alike to officiate, gotten licenses from state bureaus, rented apartments together, adopted children, enrolled their kids in public and private schools, claimed health benefits for their spouses, sought employment to support their families, trudged through relationship counseling, and done every other ridiculously expensive and anxiety-laden thing married people do. 

The opportunity has certainly been there for massive legal conflict. Yet the legal conflicts between gay couples and religious objectors – all under pre-existing anti-discrimination laws – have been very few. I can find no reported decisions, for example, where a small landlord refused to rent to an unmarried gay couple, much less a married one. 

And the number of these conflicts in which the state’s formal legal recognition of the gay couple determined the outcome is . . . zero. The number of cases in which the existence of a gay marriage or civil union defeated an otherwise meritorious religious-freedom claim is . . . zero. The number of cases in which the absence of a gay marriage (or civil union) relieved the religious objector of a non-discrimination obligation is . . . zero. 

The Governor just signed the bill, making Maine the fifth state to recognize the marriages of gay couples. 

Now get ready for the ballot fight. Opponents will move to collect the 55,000 signatures necessary to suspend the legislation until a referendum can be held.

The Vermont legislature overrides a governor’s veto to pass a gay-marriage bill. Same-sex marriages begin in Iowa, the state legislature and governor balk at banning it, and even state GOP leaders seem lackadaisical in opposition. The New Hampshire legislature approves a gay-marriage bill. The Maine Senate approves it. D.C. recognizes gay marriages from other states, with D.C.‘s own recognition of such marriages up next. The Governor of New York pushes a gay-marriage bill, and the state assembly takes it up, having previously voted for it. The legislature in Rhode Island, the “most Catholic state” in the country as one Bishop notes, strongly considers a bill. The Connecticut legislature passes one, after a court decision, and a Republican governor signs it. The Nevada senate approves a near-civil unions bill. A GOP governor in heavily Mormon and deeply red Utah backs civil unions. Colorado approves two laws, one granting significant legal protection to gay and other unmarried couples and one extending benefits to same-sex domestic partners of state employees. And Republican strategists start questioning the party’s opposition to gay marriage. No wonder: For the first time ever, a national poll shows a plurality (49%) for it, while others show significant spikes in support. 

All of that has happened within the past month. And, I should add, gay marriages started today in Sweden, the seventh country to recognize them. (HT: Niclas Berggren) April was the kindest month, a blossoming Spring, for gay marriage. 

Is all of this a coincidence, or is it evidence of a “bandwagon effect”? Ryan Sager thinks it’s the latter:

The bandwagon effect 

State house approval came last week. Today, the state senate voted in favor, 13–11. It’s unknown whether the governor will sign or veto the bill, but he has previously said he thinks the state’s civil-unions law is good enough and that further progress will require federal recognition. 

Protecting religious liberty as a “compromise” position on SSM is gaining traction. The swing vote in the state senate came from a Democrat who just last week voted against the bill in committee, but switched after more protection for religious liberty was added. The amendment, she said, is 

to my questions about their proposal to provide broad religious-liberty exemptions in state statutes that recognize same-sex marriages. (I posted a separate response from Doug Laycock yesterday.) The four authors of this reply, all experts on religious freedom, are Robin Wilson, Carl Esbeck, Rick Garnett, and Tom Berg. Here is their reply, which has also been posted at Mirror of Justice:

Thanks very much for noting our proposal for a religious-liberty exemption to same-sex marriage laws in the context of the Connecticut debate and elsewhere, and thanks too for your questions about the proposal.

At the outset, just a few words about the necessity for religious-liberty protections. We agree with most of what Doug Laycock says on that score. The memo accompanying our proposal details the range of conflicts that have arisen or may arise. You’re right that in some such cases, sexual-orientation nondiscrimination laws might already conflict with the religious objection. Nevertheless we believe that same-sex marriage increases the risks to religious liberty. Some of the effects are direct. It’s partially, but only partially, that SSM increases the number of occurrences in which traditionalist religions or believers might be asked or pressured to facilitate same-sex ceremonies as organizations or business owners. Beyond that, SSM eliminates the argument, which has sometimes been successful, that a traditionalist organization does not engage in sexual-orientation discrimination as such, but acts against all extramarital sexual conduct. See, e.g., Christian Legal Society v. Walker (7th Cir. 2006) (accepting this argument for CLS’s limits on holding leadership positions). Therefore traditionalists in some places will be newly subject to the claim that they are committing sexual-orientation discrimination — or committing marital-status discrimination, if they act based on an objection to an individual’s having entering into a same-sex marriage.

In addition to the direct effects in the marriage-related contexts, there are spillover effects in other contexts such as employment or adoption. SSM with weak religious-liberty exemptions increases traditionalists’ exposure to already-existing sexual-orientation nondiscrimination laws in those other contexts. This is in part because it might (as you suggest) weaken the public regard in general for religious liberty. But more specifically, it would likely weaken defenses under state religious-freedom provisions, constitutional or statutory (state “RFRAs”), that require a compelling interest to override religious freedom. Without religious exemptions, SSM may well be perceived by courts as strengthening the assertion that the government has a compelling interest in eliminating sexual-orientation discrimination in all contexts, not just marriage-related ones, with no religious exemptions. This was precisely the Supreme Court’s logic in the Bob Jones University case: the government had prohibited race discrimination in multiple contexts without exceptions for religiously based discrimination, therefore no exception should be made for a tiny college to keep its tax-exempt status. Thus, in contrast with you, we think that passage of SSM with weak or nonexistent exemptions might very well have a significant negative effect on Catholic Charities’ argument — a meritorious argument, as you’ve said — that forcing it out of special-needs adoption work serves no sufficient purpose when many other agencies are available to assist gay couples.

Including a significant religious exemption in a SSM bill, on the other hand, sends the message that the state’s policy in general is to value religious liberty as well as nondiscrimination norms. It bolsters this more balanced resolution of the gay-rights / religious-freedom conflict not only in the marriage context but elsewhere. And it’s in the interest of SSM supporters to back generous exemptions, which address an objection to SSM that you and the four of us all seem to agree is real, but which in most cases (the four of us think) will not erect significant barriers to gay couples.

On your questions about interpretation of our proposal:

1. Religious exemptions should include individuals, not just nonprofit religious organizations, as all of us seem to agree with the wedding photographer case (unfortunately, VT and CT haven’t protected them). We are open to hardship exceptions from exemptions in cases where the exemption would, as you put it, impose “substantive (as opposed to symbolic) hardship on married gay couples and families.” But we doubt that this substantive-symbolic distinction can be squared with your suggestion that individual state employees should be categorically excluded from exemption. If one wedding registrar objects to memorializing the marriage but another is immediately available, is there any measurable harm that’s not merely symbolic? We think that putting a state employee to a choice between her faith and her job should require something more.

We also think that a hardship exception to a religious exemption should mean real “hardship” as opposed to mere inconvenience. To take some of the examples in our letter: If a marriage counselor is dismissed or sanctioned for refusing to counsel same-sex couples, or a small landlord is subject to fines or injunctions for refusal to rent, or a religious college is forced to provide housing for same-sex intimate couples, these objectors suffer loss of livelihood or other real hardships that should only be imposed, if at all, in cases of greater hardship on the other side. So we agree with you that the devil is in the textual details here, and we’d be interested in hearing your proposed standard.

2. We agree that a religious exemption should not protect harassment, provided that the definition of “harassment” is cabined to respect rights of free speech and non-coercive criticism along the lines Doug Laycock sketches. We don’t think the language “refusing to provide services, refusing to solemnize, or refusing to treat [a marriage] as valid” can plausibly be read to protect active harassment as opposed to, in Doug’s words, the right to be left alone.

3. We wouldn’t expect language in this proposal to broaden exemptions in other nondiscrimination laws beyond how courts have reasonably interpreted them. Our concern regarding other laws, as mentioned above, was the opposite: that recognition of SSM with minimal religious-liberty protections would weaken or undermine religious-liberty arguments that objectors in other contexts were previously able to make.

4. Our proposal covers all religiously based objections to marriages so as to respect the principle of neutrality among religious beliefs. Like Doug Laycock, we think that other religious objections to marriages will be extremely infrequent. For example, we searched on Westlaw for cases after Loving v. Virginia in which individuals refused to solemnize an interracial marriage and could find only 1 news story, and that dispute settled. We think that conflicts of this sort are no more likely today.

I appreciate the great thought, care, and time that went into this reply. Along with Professor Laycock’s response, it has been very helpful in clarifying my own thinking about this. It deserves a more thorough and considered reply than I can give it right now, but I do hope to address in a few days both the underlying religious-liberty concerns and some of the potential ways to address those concerns. In the meantime, however, I wanted to share this response with readers and get their reactions.

The Connecticut same-sex marriage bill passed overwhelmingly by the state legislature last night includes several provisions addressing concerns of religious-liberty advocates. Among them are these:

Sec. 501. (NEW) (Effective from passage) Notwithstanding any other provision of law, a religious organization, association or society, or any nonprofit institution or organization operated, supervised or controlled by or in conjunction with a religious organization, association or society, shall not be required to provide services, accommodations, advantages, facilities, goods or privileges to an individual if the request for such services, accommodations, advantages, facilities, goods or privileges is related to the solemnization of a marriage or celebration of a marriage and such solemnization or celebration is in violation of their religious beliefs and faith. Any refusal to provide services, accommodations, advantages, facilities, goods or privileges in accordance with this section shall not create any civil claim or cause of action, or result in any state action to penalize or withhold benefits from such religious organization, association or society, or any nonprofit institution or organization operated, supervised or controlled by or in conjunction with a religious organization, association or society. 

Sec. 502. (NEW) (Effective from passage) The marriage laws of this state shall not be construed to affect the ability of a fraternal benefit society to determine the admission of members as provided in section 38a-598 of the general statutes or to determine the scope of beneficiaries in accordance with section 38a-636 of the general statutes, and shall not require a fraternal benefit society that has been established and is operating for charitable and educational purposes and which is operated, supervised or controlled by or in connection with a religious organization to provide insurance benefits to any person if to do so would violate the fraternal benefit society’s free exercise of religion as guaranteed by the first amendment to the Constitution of the United States and section 3 of article first of the Constitution of the state. 

Sec. 503. (NEW) (Effective from passage) Nothing in this act shall be deemed or construed to affect the manner in which a religious organization may provide adoption, foster care or social services if such religious organization does not receive state or federal funds for that specific program or purpose.

(HT: Robin Wilson.)

It looks like the bill will also reaffirm the principle, which has never been contested, that no religious official will be required to officiate at or solemnize a same-sex marriage. And, as in similar laws around the country, it looks like the bill will allow parents to opt out of any marriage instruction for their children in the public schools.

The bill obviously draws on the proposal made by the five academics whose ideas I discussed earlier today. It does omit some of the more problematic aspects of the proposal, such as providing an exemption to “any individual” and its specific reference to the “sincerity” of religious belief.

Lots of practical questions remain about proposals like this, but if enacting a same-sex marriage law comes down to a negotiation over how broadly to draft a religious-liberty exemption then the problem becomes soluble — not much different from any legislative matter. Over the past decade, the political fulcrum has shifted from no recognition (pre-2000) to civil unions (2000–09) to same-sex marriage with protection for religious dissenters (2009– ). That’s a healthy shift, and should help address the kinds of concerns that sank gay marriage in California.

to my questions about the meaning and potential applications of the proposal that he and four other academics have advanced for reconciling religious-liberty concerns and same-sex marriage. Here is his response:

I wrote one of the two letters that Dale Carpenter references in his post on the same-sex marriage legislation in Connecticut. Let me say a few things by way of background, and then respond to his four specific questions.

I wrote separately from the others, and I speak only for myself here. I wrote separately because I support gay rights and same-sex marriage and I also support religious exemptions; in my view, these are parallel protections for quite similar claims to individual liberty in matters essential to personal identity. 

We may also have a different sense of the magnitude of the problem. Compelling a person or religious organization to do things in violation of conscience can be devastating to the individuals affected. There are several high profile cases around the country, but the total number of such cases that have come to public attention is not large, and the lack of a marriage case per se in five years in Massachusetts is encouraging. Of course, Massachusetts is also notorious for forcing Catholic Charities to entirely withdraw from adoption services because of its conscientious objection to placing children with same-sex couples..

The number of people who think same-sex marriage is morally or religiously wrong is large. But the percentage of those people who feel sufficient personal responsibility to assert a conscientious objection claim rather than facilitate what they perceive to be the immoral acts of others is considerably smaller. The percentage of those who are in an occupation where the issue arises for them is much smaller still. The percentage of those who will turn away business in the name of conscience is somewhat smaller still. And as same-sex marriages becomes more familiar and accepted, each of these percentages should fall. On the other side, that portion of the gay and lesbian community that is more interested in making examples or provoking legal confrontations than in living their own lives may also be rather small. For all these reasons, I don

In debates over same-sex marriage, much attention has recently been given to religious-liberty concerns. For example, the award-winning ad campaign to pass Prop 8 in California focused heavily on how SSM might erode the liberty of religious objectors. 

For reasons I gave here almost a year ago, I’m not convinced that gay marriage adds much to the pre-existing confrontation between religious traditionalists and antidiscrimination laws protecting gays. That’s not to say that there aren’t legitimate religious-freedom concerns with antidiscrimination law. There are some egregious cases, especially in the context of providing personal and non-essential services (see, e.g., the already infamous New Mexico proceeding against a photograhper who refused to shoot a same-sex “commitment” ceremony). It’s only to say those concerns don’t arise from SSM. After five years in Massachusetts, a state with broad antidiscrimination laws, the evidence for religious repression attributable to SSM is scant. 

The most that can be said uncontroversially is that formal state recognition of gay relationships will help increase acceptance of gays over time, which might indirectly influence the content and application of antidiscrimination law (more expansive laws, less generous exemptions). 

On the other hand, the debate over same-sex marriage itself might help sensitize us to possible conflicts. When gay marriage is accomplished legislatively, at least, it’s more likely that the core interests of gay families and religious traditionalists will be represented and some accommodation can be found. There is evidence of that in the recent gay-marriage bill from Vermont, which included what even prominent opponents of gay marriage called substantive (but to them, insufficient) religious-liberty protection. 

Likewise, the Connecticut legislature is considering a bill to bring the state’s marriage statute in line with the state supreme court’s decision last year in Kerrigan v. Comm’r of Pub. Health, which mandated that the state allow same-sex couples to marry. Five respected academics, in two separate letters (here and here), are urging the legislature to include a provision broadly protecting religious traditionalists against potential discrimination claims by married gay couples and possible denial of various benefits by the state. (HT: Mirror of Justice, a Catholic legal blog.) Here is the text of their proposed “marriage conscience protection”:

No individual and no religious corporation, entity, association, educational
institution, or society shall be penalized or denied benefits under
the laws of this state or any subdivision of this state, including but not
limited to laws regarding employment discrimination, housing, public
accommodations, licensing, government grants or contracts, or tax-exempt
status, for refusing to provide services, accommodations, advantages,
facilities, goods, or privileges related to the solemnization of any
marriage, for refusing to solemnize any marriage, or for refusing to treat
as valid any marriage, where such providing, solemnizing, or treating as
valid would cause that individual or religious corporation, entity association,
educational institution, or society to violate their sincerely held religious
beliefs. 

This is a sentence only a lawyer could love.

The proposal is important, both because it comes from acknowledged experts in the field of religious liberty and because it is likely to be endorsed in some version by even more academics and other advocates. My guess is that something like it will be introduced every time a same-sex marriage bill is considered. And even though I don’t agree with the authors on the extent or seriousness of the underlying problem (“widespread and devastating effects” on religious liberty), or their proposal in all its applications, it stimulates exactly the kind of concrete discussion we should be having.

If addressing religious-liberty concerns facilitates and hastens the passage of SSM laws without sacrificing any substantial rights of gay families, that’s a plus for SSM advocates. But first I’d want to hear from experts in antidiscrimination law about the possible effects. I’d also have lots of questions about the proposal. The four that occur to me right away are these: 

(1) Would its application to “any individual” include government employees acting in their capacity as government employees and providing benefits and services to married same-sex couples? If so, I assume this would mean that a state employee could refuse to issue a marriage license to a same-sex couple, refuse to participate in any way in giving benefits under state law available to married same-sex couples, refuse to serve as a judge in a divorce, tort, or any other proceeding implicating their marital status, and so on. Is that right? 

(2) Could “an individual” who continually harrasses or discriminates against a co-worker or subordinate on religious grounds be disciplined (reassigned, fired, demoted) by his employer attempting to comply with the state’s employment antidiscrimination law? Or would that be a “penalty” imposed “under the laws” of the state? 

(3) Would the exemption affect any claim of sexual-orientation discrimination under state law that a person would have had independent of the recognition of the person’s same-sex marriage? For example, would it allow a religious employer or landlord otherwise covered by a law forbidding sexual orientation discrimination to discriminate against a gay person (by excluding the person from a job or an apartment) once that person marries a same-sex partner? I assume the intent is to allow religious objectors to discriminate solely on the grounds of the marital status of a person in a same-sex marriage but not on the grounds of the person’s sexual orientation. Connecticut already has religious exemptions in its sexual-orientation non-discrimination laws, and the authors say this proposal is “modeled” on such exemptions. But as I think they’d acknowledge, it is broader than Connecticut’s exemptions in several ways. 

(4) Would the exemption protect those who objected on religious grounds to other marriages, e.g., interracial marriages, interreligious marriages, and second marriages following divorce? The text is broad enough to encompass any sincere religious objection to any marriage, but its adoption and placement in a bill meant to authorize same-sex marriages might lead to a narrower construction. 

These questions are addressed initially to the authors, but not exclusively to them. Their understanding won’t control the interpretation of the statute they draft.

One can imagine many more questions about the proposal. How do we know when a belief is “religious” rather than a deeply help moral or philosophical one? How do we know when a religious belief is “sincere” as a opposed to pretextual? (In this regard, it’s easier to imagine an individual crafting his supposed religious beliefs to fit the exemption in response to a lawsuit than it would be to imagine a religious business or association credibly doing so.) Do we want courts deciding when a person’s religious beliefs have been “violated” rather than been made less comfortable? But while these are good questions, for the most part they do not seem particular to this proposal. They’re endemic in religious liberty law and protection.

Finally, I’d be interested in the reaction to this proposal from readers, both supporters and opponents of SSM. 

If a you’re a supporter of SSM, could you live with this proposal, especially if it made the passage of SSM bills more likely and more likely to be soon? Would you support any special religious-liberty protection in the context of an SSM bill?

If you’re an opponent of SSM, and although you may continue to oppose SSM on other grounds, would it at least satisfy any religious-liberty concerns you might have? If not, would any proposal be sufficient to satisfy your religious-liberty concerns?

UPDATE: It appears the Connecticut legislature has passed its marriage bill, with significant protection for religious liberty included. An anti-SSM activist in Connecticut calls the provision “a significant improvement” of “a bad bill” because it lets groups like the Knights of Columbus refuse to rent halls for gay weddings. I’m waiting to get the exact text.

Torture, as prohibited by U.S. law, is treatment that inflicts “severe physical or mental pain or suffering.” But how do we know when a particular interrogation technique imposes “severe physical” or “severe mental” pain or suffering? 

To answer that question, the 2002 Bybee memo released Thursday relies heavily on the lessons learned from a U.S. interrogation training program for military personnel called Survival, Evasion, Resistance, Escape (SERE). In SERE training, U.S. military personnel have been subjected to the very techniques proposed for suspected Al Qaeda agents — including the most extreme of the techniques, like extended sleep deprivation and waterboarding. The discussion is at pp. 4–6 in the Bybee memo. Basically, the memo says that the CIA has concluded based on consulting with SERE experts that these methods have caused no “severe physical or mental” harm to U.S. military personnel subjected to them. 

There’s a lot more in the memo but, frankly, it seems to me that’s the heart of it. It’s not really a “legal” conclusion calling for the specialized training of a lawyer, in the sense that you can find it in a statute or a binding precedent, but an experiential and empirical one. 

So my question is this: how relevant is the SERE experience? Let’s assume it’s true that U.S. personnel in training programs have suffered no severe mental or physical consequences, and let’s assume the enemy detainee would be subjected to no more severe version of the same techniques. (The latter assumption turned out to be untrue: waterboarding as used by the CIA was more intensive than that used in SERE training, according to a May 10, 2005 Steven Bradbury memo to the CIA, see p. 41 n. 51).) 

It’s one thing to know you are part of a controlled training program administered by your country’s own personnel who have no interest in killing or permanently damaging you, and also to know that however awful it is there will be an end of it. It’s another thing to be captured by the enemy and subjected to the same technique, but with no assurance of control or a time limit. The former “interrogator” you know to be acting with your health and safety in mind; the latter, as far as you know, has no such concerns beyond getting information from you.

Maybe the objective level of physical pain or suffering is the same whether the technique is inflicted in a training program or in an enemy interrogation. But wouldn’t the prospect of such techniques without end and without control, inflicted by an enemy, risk much greater (and perhaps longer term) mental pain or suffering? 

Bybee doesn’t even seem aware of these differences, much less account for them in his memo. To his credit, Bradbury saw the limited relevance of the SERE experience in his 2005 memo to the CIA, at p. 6:

Although we refer to the SERE experience below, we note at the outset an important limitation on reliance on that experience. Individuals undergoing SERE training are obviously in a very different situation from detainees undergoing interrogation; SERE trainees know it is part of a training program, not a real-life interrogation regime, they presumably know it will last only a short time, and they presumably have assurances that they will not be significantly harmed by the training. 

Of course, despite the weakness of the evidence available, Bradbury also concluded that the proposed techniques — including waterboarding — were not torture. But at least he was candid about it.

There is some discussion of this in the comments to Orin’s post of yesterday, including from at least one commenter who implies personal knowledge of SERE. It is claimed that in SERE the trainee loses any sense of safety, time, or perspective. It’s hard to argue with actual experience, but if you haven’t been through enemy interrogation you can’t really know how much worse it might be than SERE using the same techniques. So you can’t know how much more likely it is to inflict severe mental pain or suffering. And Bybee acknowledges that there is “no empirical data on the effect of these techniques, with the exception of sleep deprivation.” p. 6. (And the “empirical data” for the long-term physical and mental effect of sleep deprivation up to 11 days, the authority sought by the CIA in 2002, consisted of one case.) 

With no statutory guidance, no precedent, the opinions of a few CIA consultants he did not personally consult and whose possible institutional and other biases he did not question, and mainly the reported results of the SERE program to guide him, how did Bybee know whether the proposed techniques were torture?

The answer, I think, does not come in the anodyne prose of Bybee’s “legal” analysis. It is implicitly contained on the very first page of his memo to the CIA:

The interrogation team is certain that [Abu Zubaydah] has additional information that he refuses to divulge. Specifically, he is withholding information regarding terrorist networks in the United States or in Saudi Arabia and information regarding plans to conduct attacks within the United States or against our interests overseas. Zubaydah has become accustomed to a certain level of treatment and displays no signs of willingness to disclose further information. Moreover, [CIA] intelligence indicates that there is currently a level of “chatter” equal to that which preceded the September 11 attacks. In light of the information you believe Zubaydah has and the high level of threat you believe now exists, you wish to move the interrogations into what you describe as an “increased pressure phase.” 

What Bybee is describing here can’t quite be called a “ticking bomb” scenario one might see in a movie or read about in a law review article, but it’s about as close as one gets in real life. With the danger believed to be high and the detainee obviously knowledgeable, time becomes critical. 

One can imagine a couple of default rules in cases of uncertainty about what constitutes torture: (1) err on the side of respecting the human dignity and health of the detainee, in accordance with longstanding national and international commitments and aspirations, or (2) err on the side of getting information believed to be necessary to protect human life, using techniques believed to work. The choice of default depends on which values seem paramount at the moment. It seems silly to think that these default rules and the values they represent are never in tension. And it seems too hard and pure to imagine that there aren’t cases and times, like America in 2002, where one might sometimes choose the latter default rule over the former.

Where one could fault Bybee is in his initial call about which techniques are close to the line of torture and thus subject to an uncertainty default rule at all. Putting someone in uncontrollable fear of imminent death by drowning — as in water boarding — is a death threat. Forcing someone to stay awake for up to 11 days, perhaps by making them stand, shackled to a ceiling or wall (the precise method for keeping them awake is, incredibly, not even considered in the Bybee memo), at least runs a serious risk of causing severe physical or mental pain or suffering. 

Bybee had before him a prospect we do not confront. If he refused to authorize the techniques the CIA told him it wanted to use, and on that basis the CIA did not use the techniques and did not get further information from Zubaydah, and a devastating terrorist attack followed, his high regard for human dignity would today be seen as a foolish and even calloused disregard for human lives. 

All of this may argue for more precision in the definition of torture, including the banning of specific techniques of interrogation in federal law (as opposed to executive policy). Of course that would limit the flexibility one needs to meet unforeseen and dire circumstances. But one way or another torture will be given clearer definition: either in open democratic debate or in secret memos and prisons.

Did a Houston law firm effectively purchase a potentially lucrative no-bid contingency fee contract with political contributions to Pennsylvania Governor Ed Rendell? Based on the facts in this WSJ editorial, it sure looks that way. I’d be curious to see the other side of this story, if there is one.

UPDATE: The Philadelphia Inquirer reports on the story here.

The CQ “Legal Beat” blog reports tensions are mounting between Senate Republicans and Democrats over judicial nominations. Senator Arlen Specter objects to the rapid pace with which Judiciary Committee Chair Pat Leahy is advancing the nomination of David Hamilton to the U.S. Court of Appeals for the Seventh Circuit. Senator Specter has requested a second hearing, as he argues Senate Republicans did not have adequate opportunity to prepare for the Hamilton hearing held last week, some 15 days after he was nominated and under somewhat unusual circumstances. Further, as Specter notes, the Senate Judiciary Committee had multiple hearings for John Roberts’ nomination to the U.S. Court of Appeals for the D.C. Circuit.