Conservative Supreme Court Justice Antonin Scalia is again raising conservative media talking points in court, advancing the debunked idea that the definition of marriage has remained unchanged for a "millennia."
On April 28, the Supreme Court heard oral arguments in Obergefell v. Hodges, a case that will determine whether state bans on same-sex marriage are unconstitutional. During arguments, the conservative justices, including Scalia, expressed concern about "redefining" the institution of marriage to include gay couples. In one exchange with Mary Bonauto, the lawyer representing the same-sex plaintiffs, Scalia wondered if it was appropriate for the court to "decide it for this society" since marriage has applied only to heterosexual couples "for millennia."
The idea that the definition of marriage has had a fixed tradition or definition "for millennia" is untrue, although right-wing media have pushed that notion in varying forms for years -- and Scalia's propensity for embracing right-wing talking points is well-known. In 2012, he repeated the idea that if the Affordable Care Act was upheld, the federal government might be allowed to force Americans to buy broccoli -- an argument borrowed from Rush Limbaugh's talk show. Earlier this year, Scalia claimed that if the court struck down the availability of health care subsidies, Congress would move quickly to fix the problem -- apparently convinced by right-wing media's false claims that Senate Republicans had a viable back-up plan if the court hobbled the Affordable Care Act. When the Supreme Court struck down Arizona's notorious anti-immigrant racial profiling law in 2012, Scalia dispensed with legal arguments to instead attack the unrelated deferred action program for DREAMers and scaremonger that the "state's citizens feel themselves under siege by large numbers of illegal immigrants." Professor Jeffrey Rosen of George Washington University said Scalia's commentary in that case "sound[ed] more like a conservative blogger or Fox News pundit than a justice."
National Review Online is calling on the Supreme Court to uphold states' rights to ban same-sex marriage because, in its view, recognizing marriage equality would redefine the institution to favor lesser "emotional unions" and adopted children over married procreation.
On April 28, the Supreme Court heard oral arguments in Obergefell v. Hodges, a case that could finally allow same-sex couples to marry in every state or, at minimum, require states that ban same-sex marriage to recognize the legality of same-sex marriages performed legally elsewhere. During arguments, Mary Bonauto, the lawyer representing the same-sex couples challenging state marriage bans, asserted that such bans "contravene the basic constitutional commitment to equal dignity" and that "the abiding purpose of the 14th Amendment is to preclude relegating classes of persons to second-tier status."
Several justices were receptive to Bonauto's argument, including conservative Justice Anthony Kennedy, who is widely expected to cast the deciding vote in the case.
But NRO is less convinced. In an April 28 editorial, the editors called on the justices to "refrain from taking [the] reckless step" of recognizing that the fundamental right to marry should be extended to gay couples. The editorial also rejected the idea that gay couples who can't get married are routinely denied the same dignity that "traditional" married couples enjoy, and argued that the "older view" of marriage -- which prioritizes "the type of sexual behavior that often gives rise to children" -- is "rationally superior to the newer one":
An older view of marriage has steadily been losing ground to a newer one, and that process began long before the debate over same-sex couples. On the older understanding, society and, to a lesser extent, the government needed to shape sexual behavior -- specifically, the type of sexual behavior that often gives rise to children -- to promote the well-being of those children. On the newer understanding, marriage is primarily an emotional union of adults with an incidental connection to procreation and children.
We think the older view is not only unbigoted, but rationally superior to the newer one. Supporters of the older view have often said that it offers a sure ground for resisting polygamy while the newer one does not. But perhaps the more telling point is that the newer view does not offer any strong rationale for having a social institution of marriage in the first place, let alone a government-backed one.
Fox News' Special Report cherry-picked Justice Antonin Scalia's religious freedom concerns from the Supreme Court's oral arguments on constitutional protections for same-sex marriage to question whether clergy may "be required to conduct same-sex marriages." But this selective reporting ignores the fact that Scalia's line of questioning was immediately debunked by his fellow justices as well as the pro-marriage equality lawyer.
On April 28, the court heard landmark arguments in Obergefell v. Hodges, a case that will decide whether the U.S. Constitution forbids states from banning same-sex marriages, or at least requires them to recognize same-sex marriages performed in states where it's legal.
During the April 28 edition of Fox News' Special Report, anchor Bret Baier highlighted a dubious line of questioning between Scalia and Mary Bonauto, the lawyer representing the same-sex couples, that suggested a ruling in favor of same-sex marriage would require clergy with religious objections to perform those ceremonies. Baier reiterated Scalia's question to The Weekly Standard's Stephen Hayes, who agreed and argued that a ruling in favor of marriage equality would leave religious liberties vulnerable:
BAIER: There's one more thing. If states license ministers to conduct marriages, would those ministers -- if it is constitutional -- then be required to conduct same-sex marriages?
HAYES: Right, and then you go to the religious liberty argument. I mean, this is one area where I think conservatives are shifting their focus now, in a sense almost conceding that the gay marriage debate for all intents and purposes in the political realm is over, but can they sort of protect those religious liberties that, you know, certainly I would argue that the founders intended.
In the lead up to next week's landmark Supreme Court hearings on the constitutionality of marriage equality, Fox News' Bill O'Reilly is amplifying a fringe -- and absurd -- right-wing campaign calling on Justices Ruth Bader Ginsburg and Elana Kagan to recuse themselves because they have officiated same-sex marriages. But these actions, along with Ginsburg's comments noting the American public is rapidly turning against anti-LGBT discrimination, are not grounds for legitimate recusal.
In January, the American Family Association (AFA) -- a notorious anti-gay hate group -- announced a campaign titled, "Kagan and Ginsburg: Recuse Yourselves!" In a statement, the AFA, best known for its infamous anti-gay spokesman Bryan Fischer, called on the justices to recuse themselves ahead of next week's oral arguments before the Supreme Court on same-sex marriage. The group argued that Kagan and Ginsburg "should recuse themselves from making any same-sex marriage decisions because they have both conducted same-sex marriage ceremonies."
On April 20, Fox legal correspondent Shannon Bream twice reported on "public calls, petition drives, and appeals directly to Justices Ginsburg and Kagan to recuse themselves from hearing next week's case on same-sex marriage." During Fox News' Special Report, Bream pointed to the justices' past history officiating same-sex weddings and a February 2015 interview during which Ginsburg said that it "would not take a large adjustment" for Americans to get used to nationwide marriage equality. On April 21, Fox News' Bill O'Reilly picked up the argument in his "Is It Legal" segment on The O'Reilly Factor, declaring "these ladies have to recuse themselves," because "[t]he Supreme Court is supposed to be an incorruptible institution, but reports say Judge Ruth Bader Ginsburg has herself performed three gay marriages, and Justice Elena Kagan, one":
Right-wing media have falsely suggested that the civil rights protections in Indiana's "religious freedom" bill force business owners to endorse messages that they share serious ideological disagreements with. But a recently-decided discrimination case in Colorado debunked this argument, differentiating between discrimination on the basis of ideology and discrimination on the basis of membership in a protected class.
On April 2, Indiana Gov. Mike Pence (R) signed an anti-discrimination amendment to his state's controversial Religious Freedom Restoration Act (RFRA) after facing widespread criticism due to the law's potential to authorize anti-LGBT discrimination. To address that danger, the amended law explicitly prohibits individuals and business owners from invoking RFRA to deny services on the basis of sexual orientation or gender identity.
Right-wing media were quick to criticize Pence, arguing that the amendment "gutted" the state's RFRA and claiming that the revision would "force" the devout to violate their religious beliefs by holding them accountable to generally applicable civil rights protections. A number of conservative media outlets like The Wall Street Journal took this argument further, falsely claiming that forcing religious business owners to abide by anti-discrimination laws would also "compel" them to serve customers with "politically unacceptable thoughts":
For that matter, should a Native American printer be legally compelled to make posters with an Indian mascot that he finds offensive, or an environmentalist contractor to work a shift at a coal-fired power plant? Fining or otherwise coercing any small number of private citizens -- who aren't doing anyone real harm but entertain politically unacceptable thoughts -- is thuggish stuff.
But a recent "religious discrimination" case from Colorado illustrates how this hypothetical betrays a fundamental inability to understand that the RFRA debate was over discrimination against gay people, not gay "thoughts."
Right-wing media are continuing to defend Indiana's newly-enacted Religious Freedom Restoration Act (RFRA) and dismissing concerns that the law could provide cover for religious individuals or business owners intent on discriminating against LGBT customers. In fact, RFRA has been used as a defense against discrimination claims in the past, New Mexico's version was used against a gay couple just recently, and supporters of these expanded forms of RFRA have explicitly pointed to anti-gay sentiment as their intent.
Since the passage of Indiana's RFRA, right-wing media have erroneously claimed that criticism of the law is overblown, because it does nothing more than mirror the federal version of RFRA and RFRAs in other states. But Indiana's law is more expansive than other versions because it provides a legal defense to both private individuals and for-profit businesses in lawsuits even where the government is not a party, and unlike several other states who have passed RFRAs, Indiana lacks a statewide law that protects LGBT residents from discrimination.
Conservative media figures like National Review's Rich Lowry have also argued that Indiana's RFRA will not be used as a license to discriminate against LGBT customers because if RFRA laws "were the enablers of discrimination they are portrayed as, much of the country would already have sunk into a dystopian pit of hatred." Right-wing radio host Hugh Hewitt also downplayed the potential legal ramifications of Indiana's law, claiming on his show that the federal version of RFRA has "been the law in the District of Columbia for 22 years [and] I do not know of a single incident" of the law being used to discriminate against gay people. He did not address the fact that it is the newer state versions that have sparked the current outrage.
On the March 31 edition of Fox News' Fox & Friends, co-host Steve Doocy made a similar argument in an attempt to pretend fears of the law's discriminatory effects were baseless, claiming that Indiana's RFRA is not "anti-gay" because it has "never not once" been used as a legal defense by religious business owners accused of anti-LGBT discrimination:
From the February 12 edition of CNN's New Day:
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Marriage equality advocate attorneys David Boies and Ted Olson see the media opposition to their cause softening, and believe that while conservative media "are not prepared to embrace marriage equality," they are shying away from the issue because "they think that the wave of the future is against them."
Boies and Olson garnered attention when they joined forces in 2010 to battle California's anti-marriage equality ballot measure, Proposition 8, which was ultimately overturned by the U.S. Supreme Court last summer.
The duo, who had previously worked in opposition during the 2000 Bush vs. Gore case, kicked off a book tour this week to promote Redeeming the Dream, their account of the legal battle for marriage equality and the landmark ruling that struck down Proposition 8.
Prior to an event in Maplewood, N.J. Wednesday night, the lawyers-turned-authors spoke with Media Matters and said they see the media coverage of marriage equality becoming increasingly supportive, marking a notable change from even the recent past.
"The media in my view covered this issue very poorly for many years," Boies said. "The whole area of gay and lesbian rights was something that the media didn't know how to deal with, were a little uncomfortable dealing with it, didn't want in their view, to get too far out ahead of some of their readers. Because it was a sensitive issue [they] didn't cover it nearly as much as they should have."
Now, according to Boies, media figures "are beginning to feel uncomfortable opposing it ... I think there have been a number of people who you might think of as conservative commentators who have either been modestly favorable to us or silent on the issue and waiting to see."
Olson added, "We had one or two favorable Op-Ed pieces by members of the editorial board of The Wall Street Journal. National Review has been pretty consistently on the other side of this. Ed Whelan, who writes in the National Review is very, very strong on the other side of the issue. But a lot of the conservative press is staying away from the issue because I think they think that the wave of the future is against them. So that tells you something right there."
"I think the shift's continuing," Boies noted. "I think some of the more conservative media are sort of standing back. They are not prepared to embrace marriage equality, but I do think they see that that is the wave of the future. Remember, as much as between 75 to 80 percent of people under 30 ... liberals, conservatives ... 75 to 80 percent of those people favor marriage equality. You don't want to get crossways with that kind of demographic wave."
Media Matters has documented Fox News' lack of coverage of marriage equality court decisions since the 2013 Supreme Court rulings, with many major cases receiving less than a minute of coverage on the network.
Both Boies and Olson felt they had personally been well-received by both conservative and mainstream media outlets, and that their issue had received fair coverage.
"Lots of different media reacted in different ways, but we were received very warmly, or I was, on Chris Wallace's show, on Fox," Olson recalled. "Of course, places like MSNBC have given us more access than some of the other outlets, but the novelty of the two of us coming together have caused curiosity. I'd say we were fairly favorably well-received in most places."
Fox News' resident anti-LGBT pop psychologist Keith Ablow boldly declared that "marriage died in 2013," badly misreading a recent court decision in Utah to blame same-sex marriage supporters for turning marriage into "the Wild West."
In a December 31 column for FoxNews.com, Ablow congratulated himself for predicting that the legalization of same-sex marriage would result in the legalization of polygamous marriages, citing a recent decision by U.S. District Court Judge Clark Waddoups striking down part of Utah's anti-polygamy statute. Marriage, Ablow argued, has become "the Wild West," with incestuous marriages being the next frontier in the fight for marriage equality:
More than a year ago, when states began to legalize gay marriage, I argued that polygamy would be the natural result. If love between humans of legal age is the only condition required to have the state issue a marriage license, then it is irrational to assert that two men or two women can have such feelings for one another, while three women and a man, or two men and a woman, cannot.
Well, now U.S. District Court Judge Clark Waddoups has found parts of Utah's anti-bigamy law unconstitutional. His ruling comes in a case brought by Kody Brown and his four wives, who are featured in the reality TV show, "Sister Wives."
I believe the U.S. Supreme Court will uphold that finding, if Utah challenges it.
As I predicted, this will officially make marriage the Wild West, in which groups of people can assert that they are married and should have all the benefits of that status, including family health plans and the right to file taxes as married people.
It will also, eventually, lead to test cases in which a few unusual sisters and brothers insist that they can marry, because they are in love and promise not to procreate, but, instead, to use donor eggs or sperm.
Marriage is over.
It was always at least a little funny that a huge percentage of people swore to stay together until death, then divorced and remarried.
But, now, it is, officially, judicially, a joke.
If two men can marry, and three men can marry, and five women and a man can marry, and three men and two women can marry, then marriage has no meaning.
From the November 18 edition of Fox News' The Real Story with Gretchen Carlson:
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Fox News attempted to paint Gov. Chris Christie as a moderate on social issues, falsely claiming that he had refused to veto legislation that would have legalized same-sex marriage in New Jersey.
On the November 10 edition of Fox News Sunday with Chris Wallace, Fox News reporter Carl Cameron discussed Gov. Christie's political reputation among conservatives, citing his decision not to veto marriage equality legislation in 2013 as evidence that Christie might not appeal to social conservatives:
The reason Christie didn't veto a marriage equality bill in 2013 is because he had already vetoed it in 2012 despite widespread public support for the measure. Christie cited his personal opposition to marriage equality and was widely criticized for the suggestion that the issue should be put up for a public vote.
The Washington Times joined right-wing media's misinformation campaign about an Oregon bakery whose owners elected to close their store after facing a civil rights complaint for refusing to provide a cake for a lesbian couple's commitment ceremony.
In its September 5 report on the decision of owners Aaron and Melissa Klein to close their shop and begin operating out of their home, the Times inaccurately stated that the move came after the Kleins were "forced to shut down operations." The article, titled, "Christian baker hounded by gays to close shop," parroted the Kleins' assertion that the LGBT community employed "militant, mafia-style" tactics to shut their business down:
An Oregon baker with Christian beliefs who was forced to shut down operations after refusing to make a cake for a planned same-sex wedding says her faith in God has not wavered -- and in fact, has grown stronger because of the ordeal.
The lesbians, in turn, filed a complaint with the state, touching off a massive gay activist outcry that ultimately led the couple to shut their business doors -- the business they had spent years building -- and move operations this past weekend to their home.
The outcry from the gay community over their refusal to bake the lesbians' cake hit hard at their vendor business. Many cut ties and left them in limbo. The business had already suffered a tight winter; Mrs. Klein said the negative reaction from the lesbian cake ordeal likely pushed their revenue situation into the category of dire.
The Associated Press granted anti-gay groups a platform to spread the unfounded claim that churches could soon be forced to perform same-sex weddings.
In an August 24 story, the AP reported that, in response to the Supreme Court's marriage equality rulings in June, many churches are updating their bylaws to clarify that they won't be blessing same-sex unions. Churches are well within their rights to change their bylaws, but the extension of civil marriage rights to same-sex couples has never posed a threat to churches' right not to perform same-sex weddings. Instead of noting the clear and definitive distinction between civil and religious marriage, however, the AP chose to follow a he said/she said model of journalism to promote a false narrative:
Worried they could be sued by gay couples, some churches are changing their bylaws to reflect their view that the Bible allows only marriage between one man and one woman.
Although there have been lawsuits against wedding industry businesses that refuse to serve gay couples, attorneys promoting the bylaw changes say they don't know of any lawsuits against churches.
Critics say the changes are unnecessary, but some churches fear that it's only a matter of time before one of them is sued.
"I thought marriage was always between one man and one woman, but the Supreme Court in a 5-4 decision said no," said Gregory S. Erwin, an attorney for the Louisiana Baptist Convention, an association of Southern Baptist churches and one several groups advising churches to change their bylaws. "I think it's better to be prepared because the law is changing. America is changing."
As marriage equality took effect in Minnesota on August 1, the state's largest newspaper granted a platform to anti-equality individuals voicing their concerns about a "deteriorating society," failing to mention the extreme anti-gay animus that motivated many of the state's most influential anti-equality groups and activists.
In an article posted on July 31, the Star Tribune examined the "ordinary" Minnesotans who were "quietly mourning" their state's marriage equality law. The article offered a sympathetic portrayal of several residents - including a senior couple estranged from their gay son - who, the paper suggested, are the victims of being "caught in the undertow of a wave of social change":
In the midst of the celebration about same-sex marriage, some Minnesotans are quietly mourning.
They are ordinary parishioners, neighbors down the street, co-workers in the elevator who steadfastly believe that marriage is meant solely for a man and a woman.
"I can't say we're bitter," said Tom O'Neill of Eagan. "We're disappointed. It's people saying, 'If it's good for me, I don't care about anyone else.' There's nothing that's intrinsically evil anymore."
"To me, the moral compass is disintegrating," added his wife, Mary. "Not just changing -- disintegrating."
Many in the group said they are angry with legislators who voted same-sex marriage into law. But they feel utterly betrayed by those politicians who, during the run-up to the November election, downplayed the proposed constitutional amendment banning gay marriage as redundant because of the existing state law against such unions.
Breitbart.com promoted a series of falsehoods about the legality of Proposition 8 in order to champion the efforts of San Diego County Clerk Ernest J. Dronenburg, Jr., who unsuccessfully sought to have the California Supreme Court issue a stay on the issuing of same-sex marriage licenses in his county.
In a July 23 column, Breitbart.com legal affairs analyst Ken Klukowski lambasted the judicial overruling of California's Proposition 8 and argued that Dronenburg "is under no court order" to issue marriage licenses to same-sex couples. Klukowski's analysis of the Prop 8 case and his assertion that Dronenburg has the authority to block same-sex marriages are fundamentally misguided.
First, Klukowski vehemently denounced Vaughn Walker, the U.S. District Court judge who found Prop 8 unconstitutional in 2010. According to Klukowski, Walker's legal reasoning was both flawed and deeply antagonistic toward religious Americans:
The first clear item is that his opinion is simply terrible. He made official judicial findings of fact that religious beliefs defining marriage as one man and one woman are irrational, and driven by either superstitious ignorance or hateful bigotry. It is emphatically not the province of the federal courts to make such pronouncements regarding the peaceful faith of over 200 million Americans.