Friday, January 1, 2016

Brian Brown's Audacious Deceit

Remember this humble graphic?
Friday, January 1, the Dayton Daily News runs with “Court battle didn’t end fight over gay marriage.” The subtitle reads “Roe v. Wade-like political skirmish expected in years to come.” The problem with all of this is that it simply isn't true. Call me a cynic but the reason for this prevarication is the simplest of all — money. Were Defenders of the Faith like Bill May and Brian Brown to concede defeat then they cannot ask for more money. I'll get to Brian Brown's dishonesty later but first bear with me.

The comparison to Roe v. Wade is false.


States can make it more difficult to get an abortion. Actually, states can make it more difficult for poor women to get an abortion. They can pass laws requiring clinics to match Mt. Sinai Medical Center staffed by doctors who have hospital admitting privileges. We should know this term if the Supreme Court deems that an infringement on Roe. There is nothing comparable that the state can do to frustrate same-sex marriage commitments.


As it stands, gays have a constitutional right to marry the person of their choice. Any law that the state passes must apply to marriage regardless of the participants. Compare that to Roe where laws can be narrowly tailored to limit abortion. About the only thing that they can do is to make it more difficult for gay people to get a license by allowing those involved in the procedure a religious accommodation.

However, according to Title VII of the Civil Rights Act of 1964 that accommodation must not create an “undue hardship.” In other words, allowing people to opt out of the gay marriage process requires the state to provide an offsetting accommodation to gay couples so as not to create an “undue burden.” If the state overreaches then the ACLU does exactly what it did in Kentucky. Off to federal court to get an injunction. It's worth remembering that the ACLU has won every round.

In addition, unlike abortion, worst case, there is very little expense incurred in taking a quick trip to a state or municipality with more favorable attitudes. Gay couples should not have to. Nevertheless, the Supreme Court has also ruled that states must recognize other states' same-sex marriages.

Brian Brown on revisiting Obergefell:

Getting back to the Dayton Daily News article;
Brown of the National Organization for Marriage said the clearest path for conservatives to potentially reverse the Obergefell decision is to elect a president who shares those values. The next president, he said, will likely get the opportunity to nominate two new Supreme Court justices.

“There will be replacements at the court and there will likely be future marriage cases,” Brown said. “Given the logic of the court’s decision I don’t see why there won’t be a polygamy decision before the court at some point. And at that point the court can reassess its decision and if there are judges on the court that understand that their role is to interpret and not make up the law, the decision will be reversed.”
In point of fact it is likely that there will not be future marriage cases. In order to reverse Obergefell a plaintiff in a new case has to have Article III standing which means that he, she or they have to a) demonstrate that they were injured by same-sex marriage and; b) that the only remedy is to ban same-sex marriage. I think that I am reasonably clever but I  cannot conceive of a circumstance that would meet those two requirements. I have emailed Brown a couple of times asking him to hypothesize a potential case. No answer. He is unable to answer.

Polygamy? Seriously? If I understand Brown correctly, he is suggesting that a decision in a polygamy case would reverse Obergefell. Huh? While they are at it maybe they will undo Loving v. VA. A decision in a polygamy case would extend only to polygamy since that is the question that the Court would be required to answer. I find it both odd and disturbing that, in the same paragraph, Mr. Brown is making a reference to logic.

Taking it a step further by the time any case, no matter how convoluted, made its way to the Supreme Court hundreds of thousands of gay couples will have married and we will not have experienced frog rain or locusts or tidal waves or comet strikes. More importantly, as happened in Massachusetts, even opponents become indifferent to same-sex marriage because it has no effect on them. The promised parade of horribles has never materialized.

Although he should mind his own business, Brian Brown cares about the same-sex marriages of other people because he is a fundamentalist Catholic defending the teachings of the Catholic Church. The Church never seems content to have adherents follow the rules. They are always sharpening their swords in preparation for another crusade to impose its will on others. They did the same thing when contraceptives became available after Griswold v. Connecticut. Some bishop probably had a stroke over Viagra.

Getting back to Mr. Brown he is either delusional, a grifter or, possibly, both. One thing is for certain; He has many children to feed and clothe.

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