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Bless Jeff Sessions’ Heart, He’s Right

Have you been watching the progressive freak-out over the Attorney General’s religious liberty task force? Alexandra de Sanctis is right: [1] the fact that left-wing organizations cannot grasp the idea that religious liberty is important shows exactly why we need a Justice Department religious liberty task force. More:

Most fundamentally, these shallow, imprecise, and often inaccurate comments completely disregard the inherent value of religious liberty. But they also exemplify the political strategy of a progressive movement losing its bearings, sacrificing sanity in favor of stoking the fires of an ever-escalating culture war. Increasing numbers of thought leaders on the left put religious liberty in ominous scare quotes and redefine it as a buzzword for bigotry. They shouldn’t be shocked that scores of religious Americans are willing to hold their noses and overlook the serious flaws of the Trump administration for the sake of protecting their right to practice their faith without coercion.

My pal Michael Wear, a liberal Democrat who worked on religious issues in the Obama White House, writes:

https://platform.twitter.com/widgets.js [3]

The Miami Herald columnist Leonard Pitts, a religious and political liberal, is sick and tired of it: [4]

I get that some putative Christians use faith as justification for racism, misogyny, homophobia and Islamophobia.

change_me

I get that others ally themselves with a president who could not be less Christian if he had three sixes carved into his forehead.

But I also get that none of that, none of the failings of the human structure we call religion, has the slightest thing to do with the question of whether God is.

This being America, you have the right to answer that question in whatever way satisfies you. Many of my liberal friends will come to conclusions different from mine, and I respect that. I wish more of them would return the favor. Because I’m here to tell you: the condescension is getting old. Moreover, I find it interesting that folks who would never judge a Muslim by the lunatics who share her faith are so ready to judge me by the lunatics who share mine.

If all of time, space, history and reality — everything that is, ever has been and ever will be — could be represented by a vast arena, then you and I, in our piddling 70-something years of mortal life, are like someone looking in to that arena through a peephole. So a little humility might not be a bad thing for any of us, no matter what we believe, or don’t.

Politically speaking, religious liberty is the most important issue to me. I wouldn’t rule out voting against Donald Trump in 2020, because some other issue was so urgent, and so important, that it justified voting against my religious liberty interests. But every time I start to think that, some progressive organizations will come out with statements that portray ordinary First Amendment backers like me as some sort of unique and horrible threat to decency.

UPDATE: I can’t remember the last time I had to send so many comments to the trash without publishing them. If your a liberal who can’t come up with anything more serious than, “Christians are just mad that they can’t discriminate against blacks anymore” — seriously, this was one comment — then you shouldn’t waste your time commenting, because I’m not going to publish it. On second though, maybe I should publish them, because all of those comments show exactly why religious liberty is in trouble in this country.

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83 Comments To "Bless Jeff Sessions’ Heart, He’s Right"

#1 Comment By cka2nd On August 1, 2018 @ 1:40 pm

blackhorse says: “Right, and churchmen are being arrested and the tax codes being used to shut down the churches. The martyr complex is wearing thin.”

I am as atheist as the day is long, but you do realize that eliminating the tax exemption for religious entities is a goal of some atheists? Many, judging from the comments sections of some of the various websites I check out on a semi-regular basis.

Some of the paranoia of our religious friends is ridiculous – pedophilia is more likely to be used as a justification for regulating and restricting religious organizations than it is to be legalized (see also the recent moves to bar under-age marriage in Germany and New York State) – but not all of it. The argument I have occasionally made here is that religious folk might better try to understand why there is so much anger and bitterness and hatred directed their way, especially from within the gay community. It’s not abstract, it’s not just from reading Sam Harris or Richard Dawkins. There are some hard, hard memories of traumas suffered, of hurts given and not relieved, of rejection and exile, even in the face of death.

To be very specific, the response of conservative Christians to the AIDS Crisis was the Great Injury. The response to Same-Sex Marriage, more an attempt by queers to assimilate into society than to subvert it (read Andrew Sullivan on the topic 25 years ago), was the Great Insult. Fairly or not, the religious right is reaping what it sowed.

#2 Comment By cka2nd On August 1, 2018 @ 2:13 pm

DEC01 says: “Does anyone ever ask what the limits are to sexual identity/orientation rights are? If so, I have not heard it. Despite the linkage of sexual orientation with ‘marriage’ both as a legal right and a social right that has kicked this all off.”

First, “marriage” did not kick off the fights over sexual identity/orientation rights. “Gay Marriage” was first popularized as an issue only in the early to mid-1990’s, roughly 25 years after the Stonewall Rebellion kicked this all off (Thank you, Andrew Sullivan, gay man, political conservative and said popularizer).

Second, pedophilia is where the conversation stops when it comes to sexual identity/orientation rights. And that very much includes the LGBT community; I can’t remember the last time NAMBLA has been able to march in a pride parade or hold an event at a LGBT community center, and duck if you ever mention them or the issue in any way other than abusively in a comments section on a queer website. And the feminist movement makes even anti-SSM and anti-trans religious conservatives look positively benign on the issue. The only crack in the unremitting hostility towards pedophiles across the political and social spectrum is in the response to young pedophiles who admit to their orientation but are horrified by it and wish to do everything within their power not to act on it. The so-called “Virtuous Pedophiles,” about whom I think Rod has written a blog post or two.

That’s where the limit has been set, and I don’t see that changing even if some young, “woke” academic were to try to become the Camille Paglia of their day and offer some defense of the practice. She or he would be excommunicated from the fold as fast as if they had tried to defend traditional views on gender.

#3 Comment By DEC01 On August 1, 2018 @ 3:06 pm

What is stopping sexual orientation protections from being extended to cover prostitution, sacrificing goats, assisted suicide, polygamous marriage, or psychedelic ceremonies?

If “same sex marriage” can be covered under “sexual orientation” then so can any of these things. Any of them can be declared conduct integral to ones sexual orientation. Just like “same sex marriage” has been. What is stopping this other than desire and imagination?

#4 Comment By Elijah On August 1, 2018 @ 4:23 pm

You guys aren’t giving very convincing examples of why a federal religious liberty task force is to be feared. Indeed, it seems like Mississippi and the City of Catskill might be actually inviting federal intervention.

Not liking Jeff Sessions and Donald Trump is not reason to oppose religious liberty.

#5 Comment By Hector_St_Clare On August 1, 2018 @ 5:38 pm

DEC01,

I think all the above should be legal with the exception of assisted suicide, so your not convincing me of anything. I’m trying to get Rod to elucidate what are the lines he draws about freedom of religion and why.

#6 Comment By Hector_St_Clare On August 1, 2018 @ 5:44 pm

Grumpy Realist,

Yea it certainly would! Some liberal blogger I follow mentioned acidly that she hopes sacred prostitution gets covered under the new religious liberty protections, so that got me thinking. All of the examples I mentioned have been features of one or another religion out there through the ages, and all of them are hot topics of controversy among moral libertarians today, so I thought I’d bring them up. For that matter one could add the Zoroastrian encouragement of first cousin incest.

#7 Comment By WorkingClass On August 1, 2018 @ 6:24 pm

“I can’t remember the last time I had to send so many comments to the trash without publishing them”.

It’s your blog Rod. And an excellent blog it is. But rest assured. You need not protect me from opinions you find worthless.

“Politically speaking, religious liberty is the most important issue to me. I wouldn’t rule out voting against Donald Trump in 2020 ….”

Trump is obviously comparatively good regarding your “most important” issue. But you really seriously don’t like him. Is that the fence you’re sitting on. Or is undecided your default political position for career purposes? It’s an honest question. For instance – are TAC writers allowed to endorse candidates?

#8 Comment By Barry On August 1, 2018 @ 7:26 pm

I agree with the commenter whose comment I can’t find that Sessions simply does deserve the benefit of the doubt.

As for ‘religious liberty’, when I see right-wingers using it to mean ‘religious freedom’, then I will support it.

#9 Comment By EngineerScotty On August 1, 2018 @ 7:36 pm

I think that this statement: “Christians are just mad that they can’t discriminate against blacks anymore”–is, as a blanket statement, dumb. It’s not entirely wrong–there is a subset of fundamentalist Christianity that seems to be little more than white nationalists at prayer–but a subset is not the whole. (And many white nationalists of the alt-right are scarcely Christian, and many repudiate Christ and his hippie-dippie gospels and “there is no Jew or Gentile” attitude altogether).

But–there do seem to be a lot people who do think this about “Christians”, or at least the politically active sort on the GOP side; that it’s all a stalking horse for far more unsavory beliefs or attitudes. And Jefferson Beauregard Sessions is, to be blunt, widely suspect for many on the left–even if he is (so far) resisting the calls of his boss to interfere in the Mueller investigation, he has a well-worn reputation as someone who isn’t a noble actor in this realm.

I don’t particularly trust him, for one, to care about the civil rights of Jews, blacks, gays, or anyone else outside the various demographics that put Trump into office.

And if you think a cultural backlash is indeed coming your way–and the changing demographics of the country make such a concern understandable–having Sessions at Justice undermining civil rights enforcement (or making it a nakedly partisan enterprise) is probably not a wise choice.

Never burn a bridge you might need to cross some day.

#10 Comment By blackhorse On August 1, 2018 @ 7:49 pm

1) God may have used Cyrus et al yet never soft peddled ho they were (unlike, say, Kristian Kitsch maester Jon McNaughton, who treats him like a secular saint) and 2) what makes you so certain God is using him for yr purposes? (“He” might be using Trump to rouse the opposition from it’s slumber).

#11 Comment By John On August 1, 2018 @ 9:37 pm

CKA2nd hits the nail on the head. Religious conservatives spent a lot of the goodwill gays might possibly have given them. As a group tgey list whatever benefit of the doubt gays can give them when they claim this is only about inherently expressive activities associated with weddings and that they are not looking for an unlimited right to discriminate against gay people across the board given their stance on the so-called “sodomy laws,” opposition to anti gay discrimination laws and the way the most outspoken of them responded to the AIDS crisis.

I support religious liberty in spite of all of that. I am more than willing to make the deal that was reached in Utah. I can accept a deal that bans anti gay LGBT discrimination in most matters while excluding inherently expressive activities from nondiscrimination laws and I understand that religious organizations not involved with health care must be exempt from those laws as well.

There is still however a part of me that thinks that “religious liberty,” like “family values” will get a bad name for itself for those of us who happen to be gay. “Family values” and “religious liberty” are good concepts in theory and in practice and many gay people do have both, religion and family values.

But the phrase “family values” when said by religious conservative political activists, is viewed by our community as talking in code. It is their euphemistic way of virtue signalling -their way of saying they are anti gay without calling us names.

“Religious liberty” May be the new catchphrase meant to legitimize antidiscrimination across the board, and coming from people who never considered our religious liberty to give their moral claims the finger, this claim is merely to protect liberty” is nearly impossible to believe.

#12 Comment By Siarlys Jenkins On August 1, 2018 @ 9:42 pm

The response to Same-Sex Marriage, more an attempt by queers to assimilate into society than to subvert it (read Andrew Sullivan on the topic 25 years ago), was the Great Insult. Fairly or not, the religious right is reaping what it sowed.

While I credit comrade cka2nd with sincerity, that mashes together too much disparate opinion and activity. There certainly are those who simply want to bash gays, and use their or someone’s religion as cover for doing so. We would all do well to come out from among them, if we find ourselves in such company, and to bar the door if they try to enter our premises.

But opposition to same-sex marriage is not limited to gay-bashing. There is a fundamental question, what IS marriage? It is a little bit like the question, why can’t women be priests? I’m not committed to the notion that they can’t. But I can recognize that there could be liturgical, teleological, transcendent, reasons why a woman just isn’t what a priest needs to be. It doesn’t just come from old white men in Catholic orders. It also comes from young black men in Baptist pulpits, with older women responding “Amen, pastor!”

The books of the Old Testament that in Jewish tradition are termed “Writings,” the historical chronicles, two of which are named Chronicles, record that God found David unfit to built his Temple, “because you are a man of war.” God told David to fight those wars. If David was a modern advocate of “inclusion” he would have wailed and moaned that this was so unfair of God you told me to go kill those heathens and now you won’t let me build your temple oh I’m going to scream.

Someone had to fight those wars, the blood was shed, and those who shed that blood were ritually unfit to build the temple, full stop. Religious scruples can be like that.

Since we have no scientific basis to test the validity of limiting priesthood to males, of limiting the definition of marriage to the union of a man and a woman, of the necessity to refrain from eating the flesh of swine, oysters, etc., we don’t impose a viewpoint either way on anyone.

Civil marriage is indeed a separate question, and I know of no reason why a state should not issue a marriage license to a same sex couple. However I can see no constitutional reason why it must either. Everything someone wants, or even can make a plausible case for, is not a constitutional right.

Why are sodomy laws different?

Are you so sure that the primary basis of the sodomy laws was religious? North America has always been full of profane people. Aboard the Mayflower there were more strangers than saints. The mass of laborers from the jails of Devon sold into the middle and southern colonies were even more profane. And profane, illiterate, blaspheming impoverished people have had a generally harsh attitude toward sodomy through much of human history.

I fully support Lawrence v. Texas. I have no doubt that legislators passing such laws cited some sort of religious rationale. But a lot of people simply thought the whole subject was disgusting, no reference to Scripture needed.

Get back to me when one of these chuckleclucks starts pushing for the right of workers to attend religious services on whatever day their faith declares holy and not lose their jobs for taking the time off to do so.

I fully support such a measure.

The Navy has again rejected approving a secular humanist chaplain.

I have vigorously criticized those who claimed that “secular humanism” is a religion. Accordingly, I oppose approving chaplains who claim to speak in a religious sense for that point of view.

“White liberals who deny that anyone of intelligence could possibly believe in God are racist” Right, and churchmen are being arrested and the tax codes being used to shut down the churches. The martyr complex is wearing thin.

My my, blackhorse, you do work hard at throwing everything into the kitchen sink. Could you explain how any of the off-hand suppositions you tossed in clarify the truth or falsehood of what I said? I’m acquainted with quite a number of Christians of visible African descent, and I do indeed find the blind assumptions of the liberal elites to be racist, if only in their conspicuous ignorance.

As I’ve said many times, the term “religious liberty” is vague and subjective. It won’t do as a term of law. The actual words of the constitution, “free exercise” and “respecting an Establishment of Religion” are the proper terms to use.

#13 Comment By Mr. Morningstar On August 1, 2018 @ 9:58 pm

I’ve noticed there is not a whole lot of introspection from Christians about this hostility directed toward them.

#14 Comment By blackhorse On August 2, 2018 @ 6:33 am

Politically speaking, religious liberty is the most important issue to me. I wouldn’t rule out voting against Donald Trump in 2020 ….” For which you’d trade the corruption, the disdain for the constitution, and erratic lurches abroad? Where is the morality in that? Or common decency? Remedial Augustine required. The world is not the kingdom. Was right the first time with Bene Option. As Garry Wills said in Bare Ruined Choirs, it’s time for the church to get back to the catacombs.

#15 Comment By JeffK On August 2, 2018 @ 7:32 am

@Siarlys Jenkins says:
August 1, 2018 at 9:42 pm

“Civil marriage is indeed a separate question, and I know of no reason why a state should not issue a marriage license to a same sex couple. **However I can see no constitutional reason why it must either. Everything someone wants, or even can make a plausible case for, is not a constitutional right.**”

In general, I don’t track whom I agree with and disagree with on this blog. Either way, I respect what you post.

Regarding the constitutional right to having a legally sanctioned marriage, I remember reading a summary of the SCOTUS ruling on SS marriage. As I recall, it basically boiled down to equal treatment under the law.

A married spouse receives significant inheritance tax breaks when their spouse dies. A SS partner does not receive those breaks. As I recall, a SS partner (of 25 years), with a NY marriage license, had to pay $250K (or something like that) more in federal inheritance tax than what she would have paid if she were in a federally recognized heterosexual marriage.

As I recall, SCOTUS said this was not equal treatment under the law. Therefore, bans of SS marriage were illegal. That said, I believe that nowhere did it say marriages had to be sanctioned by religious organizations. Only that the states had to provide civil marriages to provide equal protection guaranteed by the constitution.

I’ve linked the Wiki article on this subject. It’s a dense read. There are more suits coverred than the one I mentioned.

I am not gay, but I agree with them wanting equal treatment under the law. To all of those that oppose the SCOTUS ruling I ask: Specifically, what harm tangible harm does allowing SS marriage cause to individuals objecting to it? In my opinion, general objections such as “It degrades the morals of a society” don’t count. That’s an opinion without evidence, generally based upon interpretation of religious principles and not fact.

And as others have mentioned, many Christians have expressed, over the years, hostility and general hatred toward gays. Based upon their freedom of religion. Therefore, it’s not surprising that those feelings are reflected right back at them and the religion they hold dear.

[5]

#16 Comment By PA Moderate On August 2, 2018 @ 8:24 am

I’ve noticed there is not a whole lot of introspection from Christians about this hostility directed toward them.

A couple of reasons for this. There may be others:

1) Some people don’t deal well with criticism. It is easier to play the victim card when criticized than it is to listen to and understand the criticism. This certainly isn’t limited to Christians as it exists in practically every group you can think of nor is it every person that is part of said groups.

2) The belief that God is on their side. As with the first reason, this isn’t limited to conservative Christians nor is it all of them. You can also find secularists that behave this way, just with things other than God. That said, when you implicitly believe that you are morally superior to your critics, why listen to them?

I think this lack of introspection is at least part of the reason why conservative Christians do not understand why other people are skeptical about this task force. There certainly is a history of Christian faith and the Bible being used to justify unchristian things. A recent example is AG Jeff Sessions, a family values conservative Christian, using the Bible (and the Trump Administration’s interpretation of the law) to justify family separation of asylum seekers and illegals. As I recall our host was critical of both family separation and AG Sessions’ use of the Bible to justify it. If AG Sessions is willing to do that, what else is he willing to do?

In addition to that, the Christians that are part of the Trump Administration (and some of those that defend it) don’t seem to be constrained by the truth. Maybe I’m just old-fashioned but based on my conservative Christian upbringing I think Christians should endeavor to tell the truth. Granted, this has been a problem with the Religious Right for quite a while. This Administration turns that problem up to 11.

Most of the conservative Christians in the public eye seem more concerned with political power than they do with the tenets of their faith. These tenets are only useful if they can be weaponized, mostly against people who aren’t Republicans. Because of this, conservative Christians in aggregate lack credibility. It really doesn’t seem like conservative Christians understand this. Also, the cultish devotion to Trump by some conservative Christians doesn’t help the credibility of conservative Christians or Christians in general.

Many people don’t buy into the “deeply held religious beliefs” of a Hobby Lobby or the Christian Cake Bakers because of the people representing them in public (and in some cases these people’s own actions). It’s certainly not fair to these folks (or conservative Christians in general) and their religious beliefs and religious liberty should be considered and respected.

#17 Comment By JonF On August 2, 2018 @ 9:46 am

Re: I am as atheist as the day is long, but you do realize that eliminating the tax exemption for religious entities is a goal of some atheists?

Sure, I’ve seem such calls– but by people who are grossly ignorant of how these things work. There is no blanket exemption in the tax code for specifically religious entities— they share their no-tax status with all manner of secular non-profits. The only thing that’s even on the table at all is the deductibility of donations to churches and other charities. That may well change someday, but for sound fiscal reasons not because of any animus to religion.

#18 Comment By JonF On August 2, 2018 @ 9:58 am

Re: Every time a ‘progressive’ comments on Trumps lack of moral bonafides I’m reminded of David, the messiah who, killed his best friend in order to comment adultery with Bathsheba.

David however sincerely repented and no one dismissed his sins as No Big Deal because, hey, He’s our guy. Throughout the Old Testament and into the New prophets routinely called out the kings of Israel for their sins– but the Right these days rushes to the barricades or the fainting couches when someone points out Donald Trump’s.

#19 Comment By Lewis Grant On August 2, 2018 @ 12:31 pm

If you’re a liberal who can’t come up with anything more serious than, “Christians are just mad that they can’t discriminate against blacks anymore” — seriously, this was one comment…

Wasn’t that basically the gist of Jamie Smith’s WaPo critique of Rod’s book?

#20 Comment By DEC01 On August 2, 2018 @ 6:40 pm

If objecting to “same sex marriage” is a significant component of disdain some have for Christians. Why should Christians even bother with being introspective? I mean specifically to why those people feel the disdain they do and not in general. I see no reason to consider this disdain to be legitimate for the same reasons I see no reason to think a relationship between two men can legitimately be a marriage.

I have no knowledge of this supposed bad Christian response to the AIDS crises. I was much too young in the 80s. It better not be really just Christians pointing that out as example of why sodomy is dangerous and should be avoided instead of supporting methods to make sodomy less dangerous. If that really is at the heart of the disdain, then again, I can’t see why Christians should be bothered to care.

I realize that I am being quite blunt and acknowledge I may be missing something. However, the calls here for introspection here look a lot thinly veiled threats instead to apologize for and then renounce what are called “anti LGBT” views or suffer accordingly when the progressives take power back.

#21 Comment By cka2nd On August 2, 2018 @ 9:02 pm

Siarlys Jenkins says: “But opposition to same-sex marriage is not limited to gay-bashing. There is a fundamental question, what IS marriage?”

Yes, Siarlys, I will acknowledge the philosophical and theological disagreements around the issue of marriage, and will go further in restating what I’ve said before, that no explicitly religious entity (church, temple or mosque) should be forced to conduct ceremonies that it does not agree with.

Siarlys Jenkins says: “Civil marriage is indeed a separate question, and I know of no reason why a state should not issue a marriage license to a same sex couple. However I can see no constitutional reason why it must either.”

My stance on civil marriage is based on the full faith and credit clause of the constitution. A marriage contract is a contract, be it between a man and a woman, a woman and a woman, one man and three women, or whomever else can legally attach their name to a contract, and if said contract is enforceable in one state, it must be enforceable in all of them. This doesn’t mean that Alabama, say, couldn’t still outlaw it there, while still honoring the marriage contracts of Vermonters who’ve moved to Birmingham. BUT I’M NO EXPERT, so folks should feel free to educate me on the constitutional ins and outs if you feel you must. 🙂

I will say that I wish the queer beltway groups and their rich sugar daddies had learned from Roe and allowed the issue to continue percolating through the states. Abortion legalization was not widespread when the SC ruling on Roe came down, so I support it as a necessary political/legal evil, but SSM legalization was proceeding at a surprisingly brisk clip when Obergefell was decided. All of the momentum was on the pro-SSM side, and it would have been nice if the US Supremes could have been held in reserve until there were only ten or so states left to bring into compliance (real politics, baby). Of course, I was never a big fan of SSM in the first place, and always preferred “domestic partnership” laws, policies and contract provisions.

Siarlys Jenkins says: “I have vigorously criticized those who claimed that ‘secular humanism’ is a religion. Accordingly, I oppose approving chaplains who claim to speak in a religious sense for that point of view.”

I KNOW! I was wondering about this. It’s the religious right that has traditionally argued that secular humanism is a religion, as opposed to a philosophy, and it was my understanding that humanists and their agnostic and atheist brethren thought that this was incorrect, but now we have a secular humanist who wants an explicitly religious job?!? As I understand it, military chaplains need to provide succor and support to ALL members of the military, no matter the respective religious beliefs, and I suppose a secular humanist could do that, too, but I’d probably prefer if they went by the title of counselor instead of chaplain. SH shouldn’t even be considered spiritualism, so being a chaplain just seems incorrect.

[Funny story: 20 years ago, a Unitarian minister I knew was a part-time chaplain at one of our local hospitals, but she found that many of the patients and their families, when they heard her denomination, refused her services, and this greatly confused her. I told her that it was probably because they were confusing her church/society with the Unification Church of the Rev. Sun Myung Moon. Her eyes went wide and it looked like she was about to slap her head for not having thought of that herself, but luckily she didn’t, as she was driving at the time.]

#22 Comment By Siarlys Jenkins On August 2, 2018 @ 10:35 pm

My stance on civil marriage is based on the full faith and credit clause of the constitution.

By that argument, if no state provided by law for same sex couples to be licensed, then no state would have to honor such licenses.

I distinguish between arguments that same-sex marriage would be good public policy — which it may well be — and arguments that if heterosexuals can marry then equal protection of the laws requires that homosexuals can too. The distinction between public policy — matters which may be legislated any of several different ways as public opinion and the pressure of various lobbying groups may direct — and constitutional mandates, is badly misunderstood. Every good idea or moral imperative is not a constitutional command.

As to the full faith and credit clause… I find an interesting parallel to a case in Massachusetts, ruling that an enslaved 14 year old girl brought from Louisiana to Massachusetts on a visit from her husband’s plantation to her parents home, was free. The court elegantly stated, this was so, not because crossing the state line made a change in her status, but because under the laws of Massachusetts, there was no authority to hold her in bondage to her mistress.

I have similarly suggested that if Louisiana had such a thing as marriage licenses for same sex couples, then it has a duty under the full faith and credit clause to honor a Massachusetts marriage license. But, if Louisiana has no such status in its laws, then there is no authority under its laws to treat the same-sex couple as “married.” It would be a bit like incorporating a brothel in certain counties of Nevada, then claiming the right to establish a branch in Mississippi, under the full faith and credit clause.

Jeff K, you are paraphrasing from the Supreme Court’s Windsor decision, which simply ruled that IF the federal government has a policy of recognizing AS a marriage for tax purposes whatever the state of residence recognizes as a marriage for tax purposes, then the federal government may not single out certain circumstances as grounds for making an exception to that general policy. With this I fully agree, just as I fully agreed with the court’s opinion in Lawrence v. Texas.

The later ruling in Obergefell, that if the state licensed marriages between heterosexual coupes, then it was denying equal protection of the laws to homosexual couples if it did NOT give THEM marriage licenses, was in my view fallacious. My opinion does not change the fact that it is enforceable law, just as the objections of Lambda Legal did not render Bowers v. Hardwick unenforceable, absent a Supreme Court ruling overturning its own decision.

I deny that there were two “classes,” heterosexual and homosexual, before the court at all. Equal protection of the laws applies to persons, not to couples or demographic categories. As long as any person is free to enter into marriage if they wish to do so, no person has been denied the equal protection of the laws. The fact that two men, or two women, desire to enter into a bond that does not meet the definition of marriage, doesn’t change that. There is no equal protection violation.

There are humane and humanitarian arguments, made notably by Franklin Evans and Turmarion, which a majority of American citizens seem to have accorded great weight over the past thirty years or so.

Which brings me back to one more point by comrade cka2nd: I do support Roe v. Wade as a sound conservative application of well established constitutional jurisprudence to a specific set of facts. But I take no position that abortion is a good, wise, beneficial, prudent course of action, or that there is a specific constitutional imperative that abortion is sacrosanct. I merely agree that much of personal, private, intimate life is reserved for each individual to make their own choices. Constitutionally, the police and the DA are restrained from intervening until the third trimester.

The reason Roe was not a matter to “percolate through the states” while same-sex marriage should have been, is not a matter of pragmatic strategy. One is an appropriate restraint on the police powers of the states, while the other is an attempt to make policy from the bench. One reason I despise Justice Ginsburg is that she does not seem to comprehend the distinction, although if I had the opportunity to say that to her face, she would probably deny it.

#23 Comment By JonF On August 3, 2018 @ 6:46 am

Siarlys, Your reasoning pulls the teeth entirely from Full Faith and Credit, and it’s hard to see how that would apply in any situation involving anything. I agree that Overfell was a an overstep but I do agree that Full Faith and Credit requires a marriage contracted in one state to be recognized in all states.

#24 Comment By JeffK On August 3, 2018 @ 7:58 am

@Siarlys Jenkins says:
August 2, 2018 at 10:35 pm

Thanks for the correction. When I comment I often opine based upon my recollections and beliefs, and generally try to find outside support for my comment. But, I don’t do this for a living, and there is only so much time in the day.

#25 Comment By Franklin Evans On August 3, 2018 @ 10:29 am

Syarlis and cka2nd are conducting an important discussion, one that is interesting to follow but more importantly informative of certain facts.

The full faith and credit situation was long since violated, over long-standing, never gender- or relationship-based power of attorney. The prominent story among many was of a lesbian couple, with their child, one of the couple being hospitalized while they travelling in Florida.

There is some obfuscation around the incident. What I know to be true and verified is that the hospitalized woman wanted to see her partner, indicated verbally that she held the POA and medical decision authority for her (all duly executed legal documents), and the hospital staff unanimously and up to the management level denied the partner’s access to the hospital room, let alone consulted with the partner about medical decisions.

Both women reported open, verbal hostility to their being a committed couple.

There’s a concept many have not even heard, and it is prominent in the minds and strategizing in federal and state legislatures. The concept is federal pre-emption. Simplistically stated, all states must comply with regulations, but they have leeway. If the regulation is implied relief from previous restrictions, states can be more permissive. If the regulation is prohibitive, states can be more prohibitive than the federal statute requires.

Full faith and credit is an example of federal pre-emption. It requires court review for some scenarios and circumstances, to be sure, but the violation of something basic like power of attorney is not one of those scenarios.

The early fights over same-sex marriage were tests of civil unions. The marriage license says nothing about sacrament. It is, in short, a single document that carries the authority and weight of separate documents which any two (or more) adults can enter into and legally execute without any changes in the marriage laws. Power of attorney is one of them, it being implied by the marriage license. So, ask the question: why don’t same-sex couples just grit their teeth and execute all of those separate documents? The lesbian couple in Florida provide the answer, and unless full faith and credit prevails, or a law is passed that imposes federal pre-emption on all states, same-sex couples are going to look at your opposition and name you an enemy. It’s almost just that simple.

#26 Comment By Franklin Evans On August 3, 2018 @ 12:49 pm

There are some, cavalierly or sincerely, who look at the story of the lesbian couple in Florida and ask “Why doesn’t the partner simply sue the hospital?”

Well, I have hypothetical story to offer in rebuttal.

Your best friend, best man at your wedding, godfather to your children, tells you that he has a fatal disease and not long to live. He and you execute a power of attorney with medical decision authority.

Weeks later, you get a call. He’s in the hospital. You grab your certified copy of the POA and rush to the hospital, to be met at the door to his room by a nurse barring your entrance. “Family only” she says. You show her the POA, and she still denies your entrance, because as you find out in arguing with her you are also a man and the hospital doesn’t recognize same-sex relationships.

By the time you talk to lawyers, draw up legal documents and enter the lawsuit, your friend will be dead and buried.

I know, that’s a harsh example, but it speaks to the deepest level of intolerance toward same-sex relationships that involve sex. People simply deny that the couple love each other, care for each other, and in just simple arithmetic sex is a vanishingly small proportion of their time together. There seems to be no hesitation to violate legal relationships, clearly actionable in court proceedings. In the hospital scenario, there also seems to be a distinct lack of compassion in some states.

#27 Comment By Siarlys Jenkins On August 3, 2018 @ 10:36 pm

Siarlys, Your reasoning pulls the teeth entirely from Full Faith and Credit, and it’s hard to see how that would apply in any situation involving anything. I agree that Overfell was a an overstep but I do agree that Full Faith and Credit requires a marriage contracted in one state to be recognized in all states.

Fair comment, JonF. The full faith and credit clause applies easily enough to the many, many, many functions that all, or nearly all states, have in common. But suppose South Dakota had no civil marriage license. The thing just didn’t exist. There were no statutes defining marriage, providing for benefits, liabilities, criteria, just nothing at all. And then someone shows up from Alabama, with a state-issued marriage license, and demands to file a joint tax return, have all property purchased in South Dakota be community property, etc. etc. etc., just like in Alabama. They would be laughed out of court, because there is no such thing as marriage in South Dakota.

Now you could argue “marriage is marriage, so if South Dakota has something they call marriage, then a Massachusetts marriage license entitles anyone moving to the state to be married.” But then we have this thorny question of defining terms. If the couple from Massachusetts does not meet the definition of marriage in South Dakota, then there is nothing to offer them.

Or were you also going to argue that Massachusetts should have given “full faith and credit” to the fact that the young lady was chattel property by the laws of Louisiana? The Massachusetts court’s reasoning was elegant, and conservative. No, her status didn’t change by breathing the air of Massachusetts. But there is simply no authority in Massachusetts to hold her in bondage. So she is free to go.

Its true that Indiana cannot prosecute a resident of Indiana for purchasing the services of a prostitute in Nevada. But if a prostitute from Nevada brought a Nevada license to Indiana, it is not true that the “full faith and credit” clause would require Indiana to let her ply her trade. (Or him, as it sometimes is). A doctor licensed to practice in Ohio might well have to secure a license from Kentucky in order to practice in that state. Full faith and credit does not transfer the license automatically to any state he chooses to practice in.

Franklin has presented the hospital scenarios of gay couples before. They are credible, and do wring the heart strings. Seriously. My righteous indignation and “sue the bastards” pressure level goes up. As I have noted before, these are humanitarian arguments about good public policy, not arguments asserting a constitutional mandate. And, while its true that by the time the hospital is sued, the patient may well be dead, a huge punitive settlement for a blatantly illegal act could serve as an abject lesson to that hospital and others for the future.

One point to be made is, its none of the hospital’s business to examine whether the POA is held by someone of the same sex or opposite sex, and whether either of them is or is not gay, and whether they are partners. The only thing the hospital may legally consider is, there is a legally executed document, and the hospital has a duty to comply. Period.

#28 Comment By blackhorse On August 4, 2018 @ 9:05 am

As Jon F, Siaryls and Franklin point out, Sessions uses the language of liberty to shore local SoCon authorities at the expense of personal freedom, legal relations and common decency.

#29 Comment By JonF On August 4, 2018 @ 10:05 am

Siarlys, I find your reasoning specious. It sounds very much like arguments actually made in defense of states with miscegenation laws against recognizing interracial marriages contracted in other states– and it comes trailing the faint reek of an attainder too. As I noted I can accept the argument that states should be free to determine what contracts and covenants they will solemnize within their own borders– but not free to undo by fiat contracts and covenants made in other states. Consider the matter of adoptions: should a state that does not permit adoptions by same sex couples be free to remove a child from such a couple who are traveling in that state with a child they adopted, legally, in another state? There’s a good reason the Founders put “full faith and credit” in the Constitution.

#30 Comment By GregR On August 4, 2018 @ 2:14 pm

Franklin,

Your argument really doesn’t hold that much water. It is well reasoned, and to some extent I wish it was the way courts had ruled, but the Full Faith and Credit clause has never been applied to marriage contracts. There is an exception to the FFC for the public policy of the receiving state, and so long as that policy is not applied in a discriminatory way against out of state people it is fine.

Basically if Massachusetts allowed gay marriage and Alabama didn’t, there is no historical prescident to assume the FFC would force Alabama to recognize a Massachusetts same sex marriage certificate. The FFC would only apply if Alabama permitted gay marriage, but refused to recognize one from Mass.

If you really want to understand the background to how the gay marriage lawsuits worked out the real meat is found first in the cases upholding interracial marriage bans, then the cases striking them down primarily Loving V Virginia. But then read Romer v Evans, and finally Lawrence v Texas.

What you will see is that the courts borrowed heavily from the inter-racial bans to strike down the gay marriage bans, and while the cases have their differences they really do run pretty parallel. In fact the interesting thing to me about Obergefell is not now different it is from Loving, but that the court felt the need to craft a new decision at all.

I actually argued that Obergafel could have simply quoted the whole of Loving and just replaced race with gender. As illustrated below from the original Loving decision.

“Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival. … To deny this fundamental freedom on so unsupportable a basis as the racial (gender) classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial (gender) discrimination. Under our Constitution, the freedom to marry, or not marry, a person of another race (same gender) resides with the individual and cannot be infringed by the State.

#31 Comment By Franklin Evans On August 5, 2018 @ 4:21 pm

Greg, I’m not sure if we are in agreement or not. Grinning while I write that…

I don’t have the legal terminology skill to do an efficient search of this “test”, but based on my limited professional knowledge of federal pre-emption (ERISA, and not current) and my understanding of the requirements for certain legal designations such as beneficiary and spouse, the test would be the number of times one state disavowed marriage licenses from another state.

One thing I’m 100% sure of: a couple in any state, one of whom participates in a qualified pension plan, who provide the required “good order” documentation about their joint marital status, are de facto married in every state of the Union. See also the status of “married” on IRS forms.

I can’t imagine it’s happened very many times, let alone systematically. Thus, while my argument depends on implication, I believe it does hold water rather well.

I did make one assumption about which I will do the research: that power of attorney is recognized as a federally supported legal relationship, and that FFC must support it against any local (municipal or state) violation of the obligations and authority afforded by POA.

#32 Comment By GregR On August 5, 2018 @ 9:52 pm

Franklin,

Until DOMA there has never been a Federal definition of marriage, and now post DOMA there likely will never be one again. And it is true that all 50 states recognize a marriage performed elsewhere, even foreign marriages (mostly). But that is a character of state law and convenance not the Fair Faith and Credit clause.

Trying to keep it as simple as possible, and without any legalese. Historically states have recognized marriages performed in any state as a function of just being a good neighbor (called comity). Even if a specific marriage couldn’t have been contracted in a state they just tolerated it because it was simpler, and frankly there aren’t enough of them to make it worth the trouble to regulate. Besides, if a marriage has lasted for decades do we really want a couple to become married and not married a few times on a road trip?

There are two exceptions to this found historically. The first is called the natural law exception. Basically polygamous marriages, and incestuous marriages. But for the last hundred years or so most states have coalesced to the same restrictions here, so it is a pretty rare exception in modern times. But note the fair faith and credit clause has never been applied.

The second exception is called the positive law exception. This is when a state passes a law specifically denying a marriage AND specifically refusing to recognize them from out of state (inter-racial marriages were the high water mark for usage of this btw). Here the courts have never forced a state to accept a foreign states definition of marriage.

Same sex marriage band would have fallen under the positive law exception pretty easily.

#33 Comment By Siarlys Jenkins On August 7, 2018 @ 12:13 pm

I actually argued that Obergafel could have simply quoted the whole of Loving and just replaced race with gender.

That kind of MAD Lib substitution is one of the most unsound analyses in the whole line of constitutional and “equal protection” arguments. One has to get very vague about the whole issue to make that look plausible. Of course ALL the judicial rulings from Goodridge to Obergefell had to be very vague in order to arrive at the rulings that emerged.

Loving was about laws that provided for marriage, as the voluntary union of a man and a woman, freely chosen by the man and woman concerned. These laws, in certain states, then provided that certain men couldn’t marry certain women, because ‘it’s not fittin’ or something along those lines.

At no time did the Supreme Court, or any lower court, consider that marriage might be anything other than the union of a man and a woman. Classifications of sex were of the essence to marriage, and all nine justices knew that. Classifications of race were entirely irrelevant to what marriage was. The Lovings didn’t sue for the right to marry. Being married, they sued for the right to live in the state of Virginia without being arrested for it. The state knew they were married. It knew they fit the state’s definition of marriage. That was their crime. These two individual shouldn’t have married.

No marriage statute ever mentioned a class of people called “homosexuals,” nor a class called “heterosexuals.” That wasn’t an issue. There was no discrimination, invidious or otherwise. The statutes said nothing about any human relationship other than the union of a man and a woman — neither to denigrate them or magnify them. And if you wanted to find a parallel to the Virginia statute, but pertaining to sexual orientation, it would have to provide that heterosexuals may only marry heterosexuals, and homosexuals may only marry homosexuals, with a heterosexual who wanted to marry a homosexual suing that they were denied their chosen life partner. The parallel is utterly absurd. (Or, a statute analogous to Jim Crow might have provided that women may ONLY marry women, and men may ONLY marry men.)

It is true that Loving contains some superfluous written oratory that wasn’t really necessary, and that can be construed to meanings not even thought of when the decision was made. This is one reason judicial reasoning should be more concise and to the point. Justice Potter Stewart’s concurrence would have handled it: No law can withstand constitutional scrutiny that makes an act a crime, or not, depending on the race of the actor.

And the above constitutes my reply, as well, to JonF’s ill-considered description of my position as lending weight to anti-miscegenation laws. JonF is looking at this controversy a mile wide and an inch deep. Race is race, sex is sex, sexual orientation is sexual orientation. These are three very different topics for argument, and the constitutional implications for each are different, although not utterly outside the pale to assert.

but not free to undo by fiat contracts and covenants made in other states.

Nothing would be “undone.” There just would be no such thing as marriage joining two individuals of the same sex in Louisiana. It doesn’t exist, so there is nothing to extend.

As for adoption, children are generally adopted by one or more adults, not by “the marriage.” Courts may take into consideration whether two adults are married in placing a child. But if Alabama recognizes the legal status of “adopted” and one or more adults move to Alabama with a child they have legally adopted, then that would be recognized under the Full Faith and Credit clause. If Alabama had no such legal status as “adopted” then there would be no status to extend to adults or child.

Until DOMA there has never been a Federal definition of marriage, and now post DOMA there likely will never be one again.

And there never should have been one in the first place. Its not, constitutionally speaking, a matter of federal jurisdiction. Very sensibly, where the operation of federal agencies actually touched upon the question, mostly regarding payment of benefits to spouses of federal employees, it was quite rightly the policy of the federal government to defer to state law, because marriage is a matter reserved to the states. Windsor was about the federal government exceeding its constitutional restraints, or, if no restraint per se existed, being inconsistent in application of a policy of exquisite federalism.

By the same token, no President of the United States should ever have used the White House as a bully pulpit to say much of anything about marriage. Its not within the president’s constitutional job description. Rumor has it that the job requires nearly 24/7 attention to the matters that ARE assigned by the constitution to the president. So why waste time mouthing off about extraneous topics?