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Might the Court’s Denial of a Right to Same-Sex Marriage Advance Liberty?

At the Supreme Court’s oral argument on the constitutionality of same-sex marriage, several justices asked questions about the effects of same-sex marriage on religious freedom. These questions might not appear directly relevant to the question of whether the federal Constitution secures a right to same-sex marriage. But they are politically relevant because the method by which same-sex marriage is achieved may make a substantial difference to the accommodations to people who because of reasons of religious conscience do not want to encourage this social arrangement or be connected to its creation.

A political scientist would understand the attempt to fashion a federal right to same-sex marriage as an effort to change the political status quo by constitutional litigation. In states that to date do not recognize same-sex marriage, advocates of the institution would no longer have to negotiate with their opponents or compromise on such matters as whether religious colleges should be required to give benefits to same-sex couples. In contrast, if the constitutional right to same-sex marriage is not affirmed, the process of negotiation is likely to continue, as advocates will have to persuade reluctant voters who may be concerned about other issues of personal and institutional autonomy. In this case, various opt-out rights will likely be given in return for the right to same-sex marriage.

Thus the questions at oral argument may have been an effort to persuade Justice Anthony Kennedy, whose focus has often been on personal liberty, that the optimal way to maximize liberty in the long run may be to let democracy continue work at the state level.  Given the support for same-sex marriage among the young, there is little reason to doubt that in the years to come same-sex marriage will be validated in almost all the nation, even in the absence of federal constitutional right. But there is more reason to doubt that opt-out rights would be offered if same-sex marriage were affirmed as a constitutional right. Under these circumstances, a libertarian who supports same-sex marriage but takes a realist view of politics might prefer the messy compromises of democracy to the clear ukases of the judiciary.

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on May 01, 2015 at 11:14:43 am

[T]he method by which same-sex marriage is achieved may make a substantial difference to the accommodations to people who because of reasons of religious conscience do not want to encourage this social arrangement or be connected to its creation.

A political scientist would understand the attempt to fashion a federal right to same-sex marriage as an effort to change the political status quo by constitutional litigation….

[T]he optimal way to maximize liberty in the long run may be to let democracy continue work at the state level. Given the support for same-sex marriage among the young, there is little reason to doubt that in the years to come same-sex marriage will be validated in almost all the nation, even in the absence of federal constitutional right. But there is more reason to doubt that opt-out rights would be offered if same-sex marriage were affirmed as a constitutional right. Under these circumstances, a libertarian who supports same-sex marriage but takes a realist view of politics might prefer the messy compromises of democracy to the clear ukases of the judiciary.

I agree with McGinnis’s political science perspective, with the exception of saying that the person who might support this perspective is a “libertarian.”

In my lexicon, libertarians focus on autonomy rights. Sure, they embrace negotiation and contract by mutual assent, but when undertaken within a firm framework identifying the rights people may exercise even in the absence of mutual assent.

So imagine I made the following argument to a libertarian landlord: “Should we really ask a judge to rule that you have title, and thus the power to demand rent or to evict, at this time? I mean, people of your generation tend to embrace property rights, so your perspective is likely to prevail at the ballot box eventually. But in the meantime, a judicial dictate would merely serve to foreclose the opportunity for you and the people occupying your building to negotiate over your property. Wouldn’t those negotiations better serve the cause of liberty?” I think I know precisely the kind of answer I’d receive.

In sum: Yes, negotiation has its advantages. But the other point of view does not preclude negotiation; it merely changes the terms under which the negotiation occurs. After all, plenty of slaves were able to negotiate to secure their own freedom, but that does not lead me to conclude that emancipation was misguided. Emancipation did not preclude negotiations between former slave and former owner, but it shifted the resulting allocation of resources.

Ultimately, would McGinnis’s proposal increase the public welfare, or merely reallocate it? Does McGinnis’s proposal advance the liberty interest of people who oppose same-sex marriage – or their property interest in maintaining the status quo?

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nobody.really
on May 01, 2015 at 12:38:46 pm

I have never understood this argument, broadly speaking.

Marriage is a religious institution, properly over seen by religious authorities. How they do so is a theological problem, and not a concern of the State. The religious dimensions of marriage should be determined within the various theological orders within our nation.

Marriage is also a civil contract, that entails mutual obligations between the two contracting parties.

Marriage is also a civil status, by which the State confers certain benefits with the goal of securing public goods.

A libertarian who believes in liberty of contract should favor voiding restrictions on the choices of individuals. Individuals should be maximally free to enter into contracts of their own choosing.

A libertarian will also favor advancing common social goods provided that there is no better way than State action to do so. The civil goods created by marriage include those associated with raising children. But they also include public health benefits (care both in sickness but also disability and old age), and social order more generally. Precisely because married people are publically and contractually committed to each other, they are more likely to live orderly and socially constructive lives, and they are more likely to provide care for each other that otherwise would come at public expense.

On these grounds there is a substantial State interest in encouraging as many people as possible to enter into committed relationships and cement those relationships contractually.

On both social and civic grounds, libertarians should applaud gay marriage. Various religious faiths should be free to sanction or not sanction marriages. But so far as the State is concerned, considerations from both liberty of contract and civic good pretty clearly favor permitting gay persons to marry.

What am I missing here?

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Kevin R. Hardwick
on May 02, 2015 at 12:06:17 pm

Kevin:

Good to see you back. Will be short as computer is upset (pink nerve gas from Nobody.really).

You are missing nothing. Marriage ia all of the above - religious (should one so choose), civil contract (clearly the case for any and all unions) and civil status with both implied and express *benefits* accruing to the parties via state preferences (taxes, inheritance, etc).

Compromise now could be: States offer civil union contracts with attendant status and benefits. Churches provide or not provide their imprimatur as they see fit.

And then let's just leave everyone alone. If a state wishes to implement this - Good; if it does not - also good. Ultimately attitudes change as do the persons having those attitudes. I can not see a State not providing the *civil* benefits as sketched out above - in fact i think most folks would support.
Does it really matter what one calls the union - marriage, partnership, etc?

Uh -oh, crashing again..... off to the Geek Squad

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gabe
on May 02, 2015 at 13:38:30 pm

Will be short as computer is upset (pink nerve gas from Nobody.really).

You know, most people sound kinda magnanimous when they say things like "It was nobody's fault," but gabe can even make that sentence sound accusatory....

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nobody.really
on May 02, 2015 at 15:58:25 pm

Well, I am short but I don't think THAT is due to the pink nerve gas!

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gabe
on May 02, 2015 at 16:37:56 pm

Professor McGinnis' argument spotlights the expansion of a certain class of rights. One way of thinking about rights is to focus on limits on government action, of the "Congress shall make no law" variety (sometimes called "negative rights"). At our government's origin, onlya few rights, mostly having to do with courts, consisted of obligations the government had to fulfill (eg., the right to trial by jury). Sometimes, we refer to these kinds of obligations that governments assume towards individuals as "positive rights." Both negative and positive rights speak to the relationship between goverment and the individual.

Of course governments have from the very beginning also regulated the behavior of individuals towards other individuals, even in private capacities. From the very beginning of American government, for example, the State asserted an interest in behavior within families (indeed, since in 17th century law the family was "a little commonwealth," the most local of governments, there is a sense in which there existed no such thing as a "private sphere.") Similarly, the English commonlaw has from time immemorial acknowledged a State interest in regulating inter-personal violence. In 1788, these kinds of rights were implicit in the commonlaw of the individual states, but to my reading anyway is not especially salient in the State Declarations of Rights.

So presumably there exists a third class of rights, alongside the conventional negative/positive distinction. I have a right for example to be secure in my person from assault by you, and for that right to be meaningful either I must legitimately be able to exercise violence in self defense, or I must be able to look to the State for protection, or both. This third kind of right originally inhered in the law if the individual states. At leadt, I think that is correct.

At various points in the 20th century, I presume especially after 1954, this third kind of right has witnessed significant expansion and nationalization, I presume via incorporation, itself via the 14th Amendment. So part of what we are negotiating today--what I understand professor McGinnis to be talking about--are those obligations that one person, acting in a private capacity, has to fulfill towards another person, also acting in a private capacity, but enforceable by recourse to government. Thus, I, the owner of a diner, can not refuse service to you, someone who desires to order food, simply because I do not like the color of your skin. I can refuse you service for sartorial reasons--if you do not wear a shirt or shoes--and presumably for other arbitrary reasons too. But not on the basis of what we today, rather ironically, refer to as "race." I gather that this also applies to religious affiliation as well. And in the near future, it may also apply to gender.

I can imagine a justification for asserting and nationalizing this third kind of right if I am in incorporated business, since arguably the state has an interest in various forms of non-discrimination, and since arguably corporations have an obligation to advance public ends.

But what constitutional reason can there be for the state to enforce this third kind of right, if both parties are entirely private? I do not see this third kind of right in any direct fashion in the first amendments to the constitution, nor in the proto Bill of Rights in Article I, sections 8 and 9. What is the constitutional construction of this third kind of right--it does not strike me as at all obvious.

Again--is my thinking incorrect here? Can anyone offer guidance?

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Kevin R. Hardwick
on May 02, 2015 at 18:16:42 pm

Kevin,

I think that your generalization of a "third kind of right" does not accurately reflect the issues involved in same sex marriage. There are two aspects to the rights issue being advanced by same sex marriage advocates; the first is a species of "third kind of right" as you describe, but the other is not.

The first concept being asserted by single sex marriage advocates is a private right of compulsion, the right to compel another private citizen to do something unwillingly, even if that something cannot be reasonably associated with a compelling state interest. For example, even if the state were to articulate an interest in having couples commit to each other regardless of genital compatibility, (so let's assume the state has a legitimate interest in recognizing same sex marriage) this has little influence on whether someone must therefore bake them a cake. A cake is not essential to being married. Pastries do not confer or deny rights, and an improperly baked cake is unlikely to be satisfactory grounds for annulment. The rationales for compelling florists, photographers, bakers, limousine drivers, etc. to participate in same sex weddings are symbolic rather than practical, emotional rather than rational. But this is a form of the "third type of right" you referred to, and advocates will look to support it in interstitiae, penumbras, throat clearings, and all of the other stepchildren of rigorous constitutional interpretation that find sport in the privileges and immunities, commerce and necessary and proper clauses.. Were this the only issue, originalists and living constitution types could hash it out in good cheer. This is not the only issue however.

The second type of right demanded by same sex marriage advocates is a right of acknowledgement. If you were to ask sincere same sex marriage advocates why they want the right to marry, they will tell you, quite reasonably, that it is so they can access the benefits available to spouses generally; the right to inherit, make medical decisions, make elections to sue under wrongful death laws, etc. It is when you ask them "so why do you need a particular type of Christian to bake you a cake?" that things get complicated, and study of the Constitution is unlikely to be helpful. Some advocates have been quite explicit: they want the right to be acknowledged above and beyond the legal implications of marriage. More particularly, they want to be able to force people to acknowledge their marriages and to have dissenters sanctioned for expressions of disapproval. In order to do this, they set up sham civil rights atrocities involving cake and flowers, insinuating they they are incapable of committing to one another unless they are universally congratulated for doing so. And here is the problem: demands for acknowledgement are in effect demands for symbols of approval, and once you start talking symbols you are talking speech. When you start accommodating compelled speech as a matter of equality, you are likely to end up in a very dark place.

One is not strictly limited to academic discussion of these matters. It is not necessary to consider whether suing florists and bakers and photographers is essential to "marriage equality." It is not necessary to give those doing the suing and their cheerleaders the benefit of the doubt. Maybe they are not civil rights warriors who understand the realities of a pluralistic society. Maybe they are just bullies who enjoy picking on those who disagree with them when the climate is right, in which case, studying the Constitution is not likely to be very helpful.

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z9z99
on May 02, 2015 at 19:44:02 pm

This was very helpful. Thank you much for helping me apprehend the cluster of issues involved--I much appreciate the time it took you to compose a thoughtful reply.

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Kevin R. Hardwick
on May 02, 2015 at 23:58:28 pm

Fisher v. Carrousel Motor Hotel, Inc.

, 424 S.W.2d 627 (Tex. 1967): While attending a professional conference, a NASA mathematician was standing in line at a restaurant buffet when the manager snatched the plate from his hand, shouting that Negros could not be served there. No physical contact occurred. Fisher sued.

What verdict? Was Fisher entitled to any “right of acknowledgement”? Or was the manager entitled to exercise his free speech/free association rights?

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nobody.really
on May 03, 2015 at 00:17:43 am

If the manager "snatched the plate from his hand" then he did more than exercise free sppech/free association rights, didn't he?

If NASA had contracted with the institution for which the manager worked, and if the contract specified that all NASA attendees at the conference would be served, then at the very least the manager had acted to breach the contract. Several ifs there.

I am not sure to what kind of acknowledment Fisher was by constitutional right entitled. I find the whole idea that the constitution mandates acknowledgment of any sort rather peculiar. But if NASA had contracted and paid for its employees to be fed, then it seems pretty straightforward that Fisher should have been fed.

My agenda in this conversation is better to understand the issues involved in the way we understand rights in contemporary America, since I teach this stuff, albeit it in passing, and wish to make sure that I am properly serving my students.

All best wishes,
Kevin

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Kevin R. Hardwick
on May 03, 2015 at 00:36:56 am

nobody,

Was Fisher entitled to any “right of acknowledgement”? Or was the manager entitled to exercise his free speech/free association rights?

Neither, really. This is a false dilemma. The Court would not have to find that the plaintiff had any rights not available to any other person, black, white gay,old, young, atheist, Catholic, etc. in order to find in his favor. The plaintiff need not argue that a special status or individual interest be acknowledged by anyone. Likewise, a defense verdict would not imply free speech/free association rights on the part of the defendant. Free speech does not excuse battery or assault, or libel, or conversion of chattels, etc. The issue is simply, is snatching a plate away from a person in a boorish manner sufficient to fulfill the common law requirements for battery? Would it be a battery of the plaintiff was white? I think so. So I think it is a battery because it is the nature of the conduct, not the characteristics of the parties that is relevant.

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z9z99
on May 03, 2015 at 10:21:19 am

Points to z9z99 for recognizing this (admittedly famous) case was not an action for violation of the 1964 Civil Rights Act (although I can never determine why, given that it appears the events occurred after 1964), but rather an action for assault and battery.

But here's the rub: Prior to this case, Texas law was explicit that battery required physical contact between assailant and victim, and assault required fear of that kind of physical assault. The case law was explicit that mere psychological damage was insufficient to sustain a claim -- a fact cited by the lower court in rejecting Fisher's claim.

So here we move outside of the mere black letter doctrine to critical legal analysis. Given these facts, do you still conclude that speech had nothing to do with the court's holding?

You can analyze the punishments courts hand down for burning dog poop on someone's front stoop, burning a tire in their yard, and burning a cross in their yard -- you'll be hard pressed to deny that speech is a big component in the magnitude of the penalties. Maybe not as a matter of doctrine, but as a matter of fact.

So, let's return to the Texas Supreme Ct in 1967: You're on the court. You know the case law has held uniformly that physical contact, or fear of contact, is required to sustain a claim, and mere psychological harm is insufficient. How would YOU rule?

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nobody.really
on May 03, 2015 at 19:43:07 pm

"Given these facts, do you still conclude that speech had nothing to do with the court’s holding?"

I don't think that speech was irrelevant to the Court's holding. Speech, whether protected under the First Amendment or not, may have evidentiary value in that it helps provide context. If the manager in the Fisher case had yelled "That contains trans-fats!" as he snatched the plate away, this would tend to cast the encounter in a different context. As it was, the language that was actually used was relevant to the issue of whether the contact was intended to be offensive, and whether a reasonable person would perceive it as such. Likewise a burning cross conveys a context of intimidation that is objectively more ominous than a juvenile prank. A similar distinction can be made between calling a random stranger and asking if her refrigerator is running, and calling the local police using spoofing software and claiming to have killed a family member and threatening to kill the first cop who shows.

"How would YOU rule?"

A fair question. I don't know the facts or the procedural history, so I would wonder if the trial court's rationale for setting aside the verdict was brought up in a motion for judgment on the pleadings, summary judgment, or directed verdict. If it was, I not sure on what basis the judge let it proceed to verdict, since the way you describe the relevant law at that time required actual contact with the person. If however the judge let the trial proceed on the idea that it was up to the jury to decide if the contact in this particular scenario was "harmful or offensive," I would have let the verdict stand, because the trier of fact concluded the essential element of the tort in favor of the plaintiff. I am assuming that the jury instructions included some sort of "reasonable person" or other objective/quasi-objective standard to keep the legal requirements from degenerating into arbitrary and amorphous sentiment. So if I were the trial court, based on the instructions and findings of the jury, I would rule for the plaintiff.

If I were on the intermediate appellate court I would follow precedent, and rule for the defendant.

If I were on the Supreme Court, I would rule for the plaintiff, on the grounds that the prior rule did not account for the possibility of harmful or offensive contact that did not involve contact with the plaintiff's corporeal being, a distinction without sufficient rational basis. I would consider the case of a plaintiff riding a bicycle and having someone contact only the vehicle, causing it to crash, or pulling a chair out from under someone, or knocking a venerated object from their hands. I would conclude that the restriction to bodily contact, even if rational, led to disparate outcomes that could not be reconciled; that there was no reason to allow compensation for one type of harmful or offensive contact and not others based on an artificial requirement that experience could not support. So if I were on the Supreme Court I would rule for the plaintiff, on grounds that the contact here was objectively harmful or offensive and should not be excused because it was limited to dinnerware.

Which brings up a whole other set of issues, most significantly the distinction between objective and subjective offense, and the drift between denotation and connotation. I am inherently suspicious of accommodating subjective offense. It is a big world, with a lot of crazy people in it and everything offends someone. People who spend their time searching out reasons to be offended should not be encouraged by pseudo-empathetic pandering. Individual sensibilities should be of concern to the individual and no one else, regardless of what religion, gender, race, sex identity, blood type, zodiac sign, dog-or-cat person, or tolerance to gluten that person has. I will grudgingly accede to recourse for objectively offensive contact, but am dead set against recognizing a right not to be offended by speech or ideas.

The difference between denotation and connotation of words is a big problem for constitutional originalists and those that like their legal interpretations clean. There are a number of words, like "offensive," and "hate," and "survivor," the connotations of which are constantly altered by cultural and political forces. This is most problematic for abstractions like "obscenity," "dignity" and even "justice" which assume connotations that in some cases are opposite the original denotations, and are shaped to fit intended outcomes rather than serve as the tools for rational analyses. It is an inescapable fact that the meaning of words change over time, such as "well regulated" as used when the Second Amendment was drafted, and now, as has the relevant word "arms." The connotation of "person" has changed, as has "alien," "privacy," "racist," "thug," "activists," and "youths." It is no small matter for a republic to consider when it is appropriate to abandon denotation and more traditional connotation in the words we use in our laws and regulations to change our relationships between the governed and the governed. My preference is that legislatures rather than courts be given deference in deciding what "evolving standards of decency" or "offensive" or "hate" mean, if they are going to influence the relationship between citizens and state. The meanings of some words decay, while others metastasize. So if I were on the Texas Supreme Court I would have assiduously sought to avoid creating a new interest to be protected out of the evolving meanings of words. I don't think expanding the concept of "battery" to the facts of the case as you describe them runs afoul of this notion. I hope I have given a complete response to your questions.

Now, these points that you speak of. Do they carry over or do they expire if not used?

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z9z99
on May 05, 2015 at 04:57:58 am

"A libertarian will also favor advancing common social goods provided that there is no better way than State action to do so."

That would reduce the meaning of "libertarian" to nothing more than a Democrat or Republican who has subjectively determined his own particular flavor of the meaning of "common social goods." If she doesn't believe that rights inhere to the individual, and that any existing government may only legitimately protect those rights, then she is not a libertarian.

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Ali Bertarian
on May 05, 2015 at 05:06:13 am

"On both social and civic grounds, libertarians should applaud gay marriage."

There is nothing for the libertarian to applaud in allowing the government to provide tax and other legal benefits to some people who take the time, and supply the payment for the license, for the purpose of acquiring those benefits. It is favoritism, at the government's whim, as is getting your tax credits for buying a Prius, but not a Corolla. Since when do libertarians applaud government's social engineering?

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Ali Bertarian

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