The Erickson Report for November 11-24, Page 1: Heroes and Villains

The Erickson Report for November 11-24, Page 1: Heroes and Villains

We start this time with an occasional feature we call Heroes and Villains

The Heroes this time are the voters of Nevada.

In 2002 a referendum amended the Nevada state constitution to define marriage as between “a male and female person.”

But this year, that amendment was overturned in favor of an amendment recognizing marriage “as between couples regardless of gender.” It makes Nevada the first state to put the right to same-sex marriage in its constitution.

It wasn't even close; the proposal passed 62 to 38.

That state already had a domestic partnership law since 2009 and of course the historic Obergefell v. Hodges decision in 2015 invalidated same-sex marriage bans nationwide, but this is still more than a mere formality both for symbolic and legal reasons.

Between 1998 and 2012 at least 30 states passed a state constitutional amendment banning same-sex marriage. Obergefell obviated all those provisions, but they still exist. This way, the people of Nevada are protected even if Obergefell is overturned - and even though public acceptance of same-sex marriage now stands at 70%, according to an October poll by the Public Religion Research Institute, that event would mean having to re-fight those battles state by state. But not in Nevada.

Which brings me to the Villains.

As I mentioned last time at least two members of the federal Supreme Court - Clarabell Thomas and Sam the Sham Alito, doubtless eagerly looking forward to the addition of Amy Bugs Bunny Barret, are itching for a chance to take a second shot at making anti-LGBTQ bigotry constitutional by overturning Obergefell.

But again as I said last time, it's doubtful that ruling would be directly overturned; it's more likely that rights attendant to same-sex marriage would be chipped away until the right is just a shell of what it was.

And we are seeing the first signs of that.

On November 4, the Supreme Court heard oral arguments in the case of Fulton v. City of Philadelphia.

The city of Philadelphia contracts with various agencies to arrange for foster care for children who need it. As part of that contact, it requires those agencies not to discriminate.

Now comes Catholic Social Services, which is affiliated with the Archdiocese of Philadelphia, saying its religious views keep it from certifying same-sex couples as foster parents - while at the same time arguing that it can't be locked out of more foster care contracts with the city. In short, they are arguing that they must be free to actively discriminate against same-sex couples while still getting the money they get from the city for foster care services.

Catholic Social Services lost at both the district and appellate levels - but according to court observers, the right wing majority of the Supreme Court seems likely to agree - likely to agree, that is, that the city of Philadelphia can be required to accept bigotry.

It would seem to me that even though this involves a contract not a law, the principle that religious beliefs do not exempt you from "laws of general applicability," something else I mentioned last time, should apply here. But apparently not when it's the religious beliefs of the justices - seven of the nine are either Catholic or went to Catholic school or both - are involved.

A few of the justices got near but never actually got to the sort of questions I kept thinking: What if the agency refused to deal with previously divorced people? Catholic doctrine says marriage is indissoluble. If you divorced and remarried, could Catholic Social Services say "your relationship is contrary to our religion, we refuse to deal with you?"

What if it was an interracial couple? It wasn't until 1967 that US laws against that were finally all struck down, but you still find ultra-conservative churches saying it's against God's law. Would the city have to say that's no bar to a contract?

What if a conservative Jewish organization refused to deal with a couple because one was Jewish and the other not? Would the city have to contract with them if they applied?

Or does only Christianity or more specifically Catholicism get the pass?

This circumscribing of rights of same-sex couples beyond the marriage itself - in this case hindering their ability to be foster parents - is exactly the sort of concern that Clarabell and Sam the Sham have provoked. I guarantee this will not be the last example.