Month: June 2015

Obergefell v. Hodges, in which the Supreme Court ruled that every state is obligated to issue same-sex marriage licenses, surprised me with its breadth. In it the Court dealt with two distinct but closely related big-picture questions. First, is a state obligated to recognize a marriage license, including those for same-sex marriage, issued by another state when it differs from their own practice for issuing licenses? Second, must every state issue same-sex marriage licenses by law regardless of their current policy? I confidently expected the Court to rule on the former and punt on the latter.
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They didn't.

For nearly 20 years I have argued that same-sex marriage is miscast as a moral issue and obfuscated with all of these irrelevant discussions of tradition and the nature of marriage in Western society. To me, the question is and always has been solely a matter of the Full Faith and Credit Clause of the Constitution. Period. The FFCC mandates that states must recognize "public acts, records, and judicial proceedings of every other state." The FFCC is the reason that you do not need to get a new marriage or drivers license when you cross state lines. Your New York drivers license is valid in New Jersey, and when you get married in New Hampshire you don't need a new marriage certificate when you move to Vermont (and, crucially, you also don't need to return to New Hampshire to get divorced if you choose to do so).

In this light, my opinion has always been that as soon as gay marriage became legal in one state – any state – it was effectively legalized everywhere. Even if Hawaii were the only state to issue gay marriage licenses, the FFCC obligates every other state to recognize it. I expected the Court to rule decisively in this manner, requiring every state to recognize all marriage licenses issued by any other state as valid for its own purposes. This would have allowed the Court political cover, sidestepping any discussion of the nature of marriage, the "moral" rightness of different types of marriage, and so on. The result, I expected, was that gay marriage would become similar to what divorce used to be in terms of interstate heterogeneity.
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Back before divorce was widely accepted, for example, Nevada was the only state to grant quickie no-fault divorces. So it was not uncommon for couples to file for divorce in Nevada, where the process was quick and easy, and return to their home state with a dissolution of marriage that every other state would be legally obligated to recognize. So, in such a ruling the Court would allow two men in Mississippi to drive four hours, get married just across the state line in Illinois (or any other state legally recognizing gay marriages) and then return to Mississippi, which would now be required to grant that marriage license full faith and credit. In this reality, you can imagine the ad campaigns: Gay Wedding Packages to Lovely Colorado! Come to California, all weddings performed, same day licenses! New York, a wedding destination that welcomes all!

Would that have been ideal? Certainly not. But it would have given every person who wanted to get married in a manner not recognized by their home state a reasonable method by which they could do so. Traveling across state lines obviously represents a burden, but one that the Court historically would not recognize as terribly onerous. Anything within the reach of a Greyhound Bus ticket is generally recognized as being accessible.

Had the majority limited itself to that logic, I think they might even have gotten Roberts on board. As it stands, though, the five-justice majority was far bolder and appears to have settled the entirety of the issue.
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In my opinion, despite the fact that I agree with their conclusions I fear that they made the opinion a bit more open to future undermining in the process. Kennedy's defense of the nature of marriage and its status as a basic right is eloquent but also subjective. It's the type of decision that a future Court with a radically different composition could have a field day reversing. But that will take quite a while, and it seems highly likely that within the next few years gay marriage will become ingrained as a social institution and so unexceptional to the vast majority of the population that objections will cease beyond the comparatively small world of die-hard religious fanatics. And as the Court ruling affects only civil marriage – religious institutions are wholly unaffected by this decision – they won't have a leg to stand on anyway.

Thus far I've kept the promise to myself that I would limit the Thomas Friedman style "observational" posts as I drive across the continent. One won't kill anyone though, right? And I promise I didn't interview a cabbie.

The remote parts of the Yukon and Alaska have a lot in common. The distances are vast, the landscape inspires a mixture of wonder and terror, and the people who live in the region practice a kind of self-sufficiency that seems foreign to people in urban areas. When running to the grocery store involves a seven hour round-trip drive, you tend to approach life a bit differently.

People in the region appear to share a lot of characteristics whether American or Canadian. One tangible difference in crossing the invisible line between Canada and the U.S. is immediately apparent, though. Americans have a fondness for warning onlookers to KEEP OUT of their PRIVATE PROPERTY because TRESPASSERS WILL BE SHOT that their Canadian self-sufficient cousins demonstrably do not share.

It makes perfect sense that the kind of person who would willingly live in such an isolated manner are, shall we say, desirous of privacy. They do not welcome uninvited guests, they do not revel in the company of others, and they willingly disengage from social institutions. Probably not big fans of the government. Alaskans, though, seem to think that someone is coming to get them in a way that Yukoners (??) do not. There's an explicit hostility on the Alaska side that isn't present in the otherwise quite similar Canadian side of the vast, empty north.

On some level this amuses me – the idea that The Government or the Illuminati or anyone else is interested in Randy's plywood shack and rusted hulk of a derelict Plymouth Valiant is almost heartbreakingly delusional but not quite to the point where it can be considered touching. I want to sit these people down and explain to them that having physically removed themselves from society by hundreds of miles of forbidding terrain in a region that experiences nine annual months of complete darkness is enough to convince people that they wish to be left alone. And the rest of us look at their hand-to-mouth existence without envy. In fact, most of us think they are crazy. Nobody is interested in removing the collection of bleached caribou bones from their yard. Of course, they'd shoot me if I tried to have this or any other conversation with them.

Is it a need to feel Important? Do they grapple with their own insignificance by imagining that the U.N. and Obama are plotting to come after them? Are they afraid of ordinary crime, like teenagers stealing things from their tanning shed? Or are they simply reveling in a persecution complex that justifies the level of misery that is their lives?
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The most interesting question, though, is why an invisible border filters out such attitudes as one heads east. If anything, Yukon Canadians (many of whom are Native) would seem to have more cause to be angry at the world than Alaskans who get a check from the State every year for doing nothing.

But here we see the folly of applying logic to crypto-survivalists brimming with outward hostility.

Try this little experiment sometime. Walk up to a large person and say "Hey, you're FAT." When they get angry and when other people within earshot start calling you an asshole, state that the 1st Amendment protects your right to call people fat. It does, after all. And since you're able to call people fat, doesn't it follow logically that you should?

This is an example I've been using in class for a decade to introduce the section on freedom of speech / expression when we cover the Constitution and Bill of Rights.
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What the 1st Amendment protects our right to say is almost without limit. Seriously, take a look through Federal court cases involving free expression. Then look around the internet at the things people say without sanction. You can find examples of every conceivable objectionable expression of ideas: racism, blatantly incorrect facts and history, websites dedicated to ad hominem attacks on single individuals or groups of people, misogyny, anti-anything groups, and so on. Hell, the average news site comment section is guaranteed to contain at least a handful of exhortations to kill somebody.

Put on a Klan outfit and march around your city. Scream "Fuck you, Kikes!" as loud as you can in public. Start a group advocating the extermination of Muslims. People will think you're an asshole, but the fact remains that you can do any of these things legally in the U.S.

Of course you don't do any of them, because the fact that you can does not mean that you should or that you will. As a human being with a basic awareness of the society in which you live, it doesn't take much thought to conclude that these are all terrible ideas even if they did enter your mind for some reason.

OK? Let's talk about the Confederate flag now.

Can you plaster Confederate flags on your car, home, and person? Yes. You can do the same with swastikas, Juggalo logos, or images of Cap'n Crunch if you feel like it. It's highly unlikely that the Courts ever will interpret the 1st Amendment otherwise.

If you want people to think you are a jackwagon, go ahead and do any of those things. Otherwise, consider these good examples of how discretion moderates your enjoyment of the rights afforded to you.

The important thing to remember, in that light, is that displaying the Confederate flag is not illegal but it most emphatically is a dick thing to do. When Mitt Romney, Jeb Bush, Rick Perry – Rick Perry! – and ultra right-wing Town Hall columnists say that it's time for the old Dukes of Hazzard flag to go, it's a pretty good sign that it is approaching swastika territory as the kind of symbol you're legally able to display but you might possibly probably be a major asshole if you do it.

As the aforementioned columnist states, "Like a lot of people below the Mason-Dixon Line – white people, anyway – I saw the emblem as a token of regional pride.
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I didn't revere slavery and Jim Crow. But I thought there was much about the South to love." You hear things like this a lot; it's a symbol of "southern pride", or honors the bravery of the Confederate soldier from 160 years ago, or heritage or tradition or blah blah blah. Try wearing a swastika t-shirt and telling curious onlookers that your purpose is to honor the memory of the Indus River Valley civilization of 3000 BC. They will look at you like you have brain damage or are in need of the padded van. So why should essentially the same argument hold any water with the flag?

It shouldn't. The Confederate States of America stood for "states' rights" alright – states' right to have slavery. If you want to honor your southern heritage, there are other symbols you could choose that don't stand for our racist past, the legacy of which fuels the racist present. You can choose symbols that aren't a giant, throbbing middle finger extended at about 30% of the population who are not white. Try your state flag. Try an image of your state or the whole south. Try literally anything that isn't a thinly veiled expression of semi-literate white underclass rage about the passing of the days in which they could stay off the bottom rung of the ladder simply by virtue of being white. Every time I see a Confederate flag I think of Gene Hackman in Mississippi Burning: "If you ain't better than a nigger, son, who are you better than?"

That's what the flag represents. So shut up about how you have the right to display it; you do. Spend a little more time thinking about whether it's a good idea. Think about what it says to other people. Think about what it says about you. When you get over your own stubborn ignorance you'll realize that it's not complicated. It's a very basic Can vs. Should problem with an obvious correct answer.