Yesterday the Ninth Circuit handed down its entirely unsurprising decision upholding the lower court’s decision to overturn California’s Proposition 8. This is headed to the Supreme Court. Good. It’s time for some clarity on this issue. Eugene Volokh, who supports same-sex marriage, is critical of yesterday’s decision. Here’s a point he made that I hadn’t considered:
The Ninth Circuit did not decide that all opposite-sex-only marriage recognition rules are unconstitutional. Rather, it concluded that when a state has already recognized same-sex civil unions that are functionally equivalent or nearly equivalent to marriage, denying the symbolic recognition provided by the label “marriage” is no longer rationally related to a legitimate government interest. The court did not decide whether the general constitutional right to marry that applies to same-sex couples, or whether opposite-sex-only recognition rules are generally unconstitutional on the grounds that discrimination based on sexual orientation requires “strict scrutiny” or “intermediate scrutiny” and fails that scrutiny. It only applied the rational basis test, and held that the regime of civil unions but not same-sex marriage lacks a rational basis.
Note that, if the decision is upheld, this means that the arguments that civil unions are a “slippery slope” to same-sex marriage were absolutely right: The recognition of civil unions changed the legal landscape in a way that made it more likely for courts to also conclude that same-sex marriage must be recognized, too.
This decision is quite rationally going to harden attitudes among social conservatives who thought that civil unions were a reasonable way to preserve the special status of traditional marriage while disburdening same-sex couples from many of the legal restrictions they faced. I also believe this decision is going to result in a tremendous boost for Rick Santorum’s campaign. Everybody knows where Santorum stands on the issue of same-sex marriage, and how firmly he stands there. Romney can say the right words, but … well, he’s no Rick Santorum, not on issues that matter most to social conservatives.
The other news of interest to social conservatives yesterday was the release of a new poll — done by a polling firm on behalf of Planned Parenthood, note well — showing that most Americans, including a majority of Catholics, support the Obama administration’s view on the HHS rule, not the position of the Catholic bishops, who call it an infringement on religious liberty. Here was the question the pollsters asked:
Some people say that institutions such as Catholic hospitals and universities should be exempted from the requirement that health plans cover prescription birth control with no additional out of pocket costs, because contraception runs counter to Catholic teachings. Other people say that women of all faiths who are employed by Catholic hospitals and universities should have the same rights to contraceptive coverage as other women. Which view do you agree with — Catholic hospitals and universities should be exempted from covering prescription birth control, or that women who are employed by Catholic hospitals and universities should have the same rights to contraceptive coverage as other women?
It might sound nitpicky to you, but the phrasing of that questions strikes me as somewhat loaded. If they had tacked on “as a matter of preserving religious liberty” to the “…should be exempted from covering prescription birth control” part, the question would have been more balanced, given the use of the word “rights” in the last sentence (a more neutral word have been “access”). Be that as it may, I don’t have trouble believing that most people at the present time sympathize with the Obama administration on this issue, in part because the media have so far downplayed or ignored the religious liberty aspects of this issue, and framed it as simply a case of religious authorities trying to impose their teaching on contraception on people who don’t believe it. Polls consistently show that a large majority of American Catholics reject their own Church’s teaching about contraception.
But one can reject the Church’s teaching and still stand for the Church’s right to live by that teaching. If this issue is taken as approving or disapproving of contraception, the Church loses. If it’s taken as one of religious liberty, Obama loses. Yesterday, the administration tried to walk back the HHS rule, and is plainly searching for a face-saving way out. It may be true that most Americans side with Obama than with the GOP, the Catholic Church leadership, and many social conservatives on this issue, but I think it’s also true — and far more relevant — that the people who are motivated to decide their vote this fall based in large part on this issue are the people who see the administration’s move as a threat to religious liberty. And that’s why Team Obama is trying to figure a way out of this mess it created for itself.
Again, there is no question where Rick Santorum stands on the religious liberty issue, and how strongly he stands for it. The other guy? Not so much.
By the way, Ross Douthat is worth reading today because he reminds us that there is so little middle ground between culture warriors of the left and the right, and — more importantly — because he reminds us that these issues really do matter:
From election to election, politics is mostly about jobs and the economy and the state of the public purse — which is as it should be. But the arguments that we remember longest, that define what it means to be democratic and American, are often the debates over human life and human rights, public morals and religious freedom – culture war debates, that is, in all their many forms.
Thus Plessy v. Ferguson, decided in 1896, is more famous today than, say, the Panic of 1893. The slogan “Rum, Romanism and Rebellion” is better remembered than any of Grover Cleveland’s economic policies. The debates over Prohibition and women’s suffrage loom larger than Warren Harding’s early-1920s tax cuts.