National Organization for Marriage and its sundry allies have been dependably incompetent. Whether it is “great thinker” Robert George his hostage, Ryan Anderson or Brian Brown, they have been incapable of making a secular case to ban same-sex marriage. They have never answered the key questions:

  1. What is the state’s interest in regulating marriage?
  2. What is the state’s interest in denying marriage equality?
  3. Without indulging in the abstract, what are the consequences of same-sex marriage?

According to these Catholic zealots, the state’s interest in marriage is “responsible procreation.” Which came first; opposition to same-sex marriage or the manufacture of this preposterous argument? Without an intellectually honest answer to question 1, questions 2 and 3 are impossible to answer. We get theoretical gibberish. The answer to the first question (once you take God out of the equation) is to regulate the marital estate to care for a surviving and children in the event the marriage dissolves or one spouse (or both) die. There is also the issue of estate taxes which was at the core of United States v. Windsor.

Unable to make a cogent argument, those who support marriage discrimination rely on victimology; people who operate public accommodations and who are unwilling to comply with anti-discrimination ordinances based on their religious beliefs. The analogy that I like to use is the kosher chef (some of whom work in Manhattan’s finest eateries). They cannot eat lobster. However, nothing in “the rules” says that they cannot prepare it.

Yesterday and today, the usual suspects are bemoaning the fate of the Colorado baker who lost a suit after declining to make a cake for a couple wed out-of-state. For him, baking a fucking cake was a religious sacrament. You really have to question the mental hygiene of these people. As Justice Alito asked (rhetorically in his dissent in Windsor) are they bigots or superstitious fools?

These anti-discrimination ordinances usually exist because the people’s elected representatives pass a bill which the people’s elected executive (usually a mayor or governor) signs into law. The public has ample opportunity to express their opinion to their elected representatives throughout the process. Citizens don’t get to choose which laws they will, or will not, obey regardless of the reason.

Such laws have been thoroughly tested. Most recently the matter of Elane Photography v. Willock was resolved. Elane Photography refused to photograph a commitment ceremony in New Mexico in 2006. The saga went on for nearly eight years:

  1. This matter was heard by the New Mexico Human Rights Commission. Elane lost.
  2. This matter was appealed in federal court. The US district court moved it to state court.
  3. This matter was heard before the state district court. Elane lost.
  4. This matter was heard before the state appellate court. Elane lost.
  5. This matter was heard before the state supreme court. Elane lost. 
  6. The Supreme Court of the United States refused to hear the case in March of 2014. The matter has now been finally concluded.

Only four justices are required to hear a case. The reason, I suspect, that they declined is based on Justice Scalia’s opinion in Employment Division v. Smith.

Writing for the majority, Scalia noted that the Court has never held that an individual’s religious beliefs excuse him from compliance with an otherwise valid law. Allowing exceptions to state laws that affect religion “would open the prospect of constitutionally required exemptions from civic obligations of almost every conceivable kind.”

All of these crocodile tears are a distraction. They only serve to highlight the fact that these people throughout conservative Christendom have a religious objection to same-sex marriage. In this country laws must have a secular purpose.

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By David Cary Hart

Retired CEO. Formerly a W.E. Deming-trained quality-management consultant. Now just a cranky Jewish queer. Gay cis. He/Him/His.