Laughing At vs. Laughing With "Duck Dynasty"

Media scholars have known for a long time that the key to a popular show is to create the space for a wide variety of viewers to find enjoyment.  Nearly 40 years ago, a study by Neil Vidmar & Milton Rokeach* found that conservative viewers of the satirical All in the Family were laughing along with the racist/sexist/homophobic Archie Bunker while liberals were laughing at him.  The distinction is important and it may explain why Duck Dynasty is now in deep trouble.

Prior to the controversy stemming from DD's "patriarch" Phil Robertson's racist and anti-gay comments, the show could be (at least in theory) enjoyed by a wide variety of viewers.  Many viewers identified with one aspect of the show or another, while other viewers learned about a part of Americana that they may have known little about.  Narratives are driven by characters (the more interesting, the better) and through their words and actions, they affirm some values and challenge others.  Audiences watch programs for a wide variety of reasons, and a cleverly constructed program will make room for a very diverse audience to find pleasure in watching, whether it is to identify with central characters (and laugh or cry with them), or to feel superior to them and laugh at them.

The problem for DD now is that a significant part of their audience will find it difficult to continue to watch and take pleasure from watching someone they know to be so prejudiced (even if he doesn't quite realize it himself).  For those with a social conscience, Phil Robertson is no longer a harmless, sometimes even endearing hillbilly who reminds us a bit of Jed Clampett.  He is a genuine redneck, complete with prejudices and a level of ignorance that is pretty much the opposite of endearing.

There is no freedom of speech issue here.  It is simpler than that:  It is business.  While certain self-proclaimed Christians now claim to support Robertson's right to be prejudiced toward gays and lesbians and painfully ignorant of race relations, the bottom line is the bottom line, which is that A&E needs to rescue the program so that Americans who don't share Robertson's views can still find a way to enjoy the show.  That won't happen while Phil Robertson remains defiantly committed to view points that many viewers find backward and extreme.

*"Archie Bunker's Bigotry: A Study In Selective Perception And Exposure." Journal of Communication 1974 24(1): 36-47.

SCOTUS COWARDICE CONTINUES

Yesterday I suggested that the SCOTUS’s decisions in U.S. v. Windsor (which struck down a part of DOMA) and in Hollingsworth v. Perry (which denied standing to those challenging a lower court ruling that struck down California’s Prop 8) were “somewhat cowardly,” because the Court stopped short from stating unequivocally what almost every other recent court decision has declared:  There are no good reasons to prohibit same-sex marriage. 

Let me say that again:  Recent court decisions have stated repeatedly that there are no good reasons to prohibit same-sex marriage. 

What is especially significant about these decisions is the fact that the ‘no good reason’ conclusion has been the finding regardless of what level of scrutiny courts have used.  In the 2003 Goodridge decision, the Massachusetts Supreme Judicial Court used the most conservative, deferential test available, the “rational basis” test, and found that none of the “reasons” to prohibit same-sex marriage could withstand scrutiny.  In 2008, the California Supreme Court used a much tougher test known as the “strict scrutiny” standard and, not surprisingly, also concluded the prohibition could not stand.  In Connecticut (2008) and Iowa (2009), the courts split the difference and used what is known as the “intermediate” standard of scrutiny, again concluding there were no reasons advanced on behalf of the prohibition of same-sex marriage (if interested, I provide a more detailed summary of these decisions here).

Similarly, the Court of Appeals that decided U.S. v. Windsor before the case went on to the SCOTUS used the intermediate scrutiny standard and concluded DOMA “does not withstand that review.”  U.S. District Court Judge Vaughn Walker, who issued the ruling striking down California’s Prop 8, concluded that Prop 8 is unconstitutional “because it denies a fundamental right [to marry] without a legitimate, much less compelling, reason” (p. 116), unable to pass even a “rational basis review” (p.117).

The reason for such unanimity is that the motivations behind those who oppose same-sex marriage are almost always religiously based, and a religious rationale is constitutionally unacceptable.  While there have been quibbles over other reasons, such as whether same-sex parents provide a good environment for children to be raised, these other reasons have been found consistently to be either irrelevant to the legal principles involved, or lacking compelling evidence to support them.  So, one more time with feeling, recent court decisions have stated repeatedly that there are no good reasons to prohibit same-sex marriage. 

Today, the SCOTUS denied cert to two cases involving same sex marriage: Brewer v. Diaz and Coalition for theProtection of Marriage v. Sevcik.  The second of these decisions is a direct challenge to the state of Nevada’s constitutional provision defining marriage as solely between a man and a woman.  In that decision, District Judge Robert C. Jones affirmed Nevada’s constitutional prohibition of same-sex marriage based on the 1971 SCOTUS refusal to consider a challenge to the Minnesota Supreme Court's decision in Baker v.Nelson, denying a Minnesotan’s claim to a constitutional right to marry for same-sex couples.  Though in oral arguments this past March, SCOTUS justices scoffed at the relevance of this 40-year-old decision, it remains the controlling precedent until the Court overrules or otherwise replaces it. 

By refusing to hear these cases in their next term, the Court is interpreted as indicating they are not “ready” to take on the fundamental question of whether laws and state constitutions that forbid same-sex marriage are constitutional.  Such a conclusion has nothing to do with rationality, good reasons, or legal principles and everything to do with politics.  That is why I claim their cowardice continues.

SCAREDY SCOTUS?

In this entry I want to answer three questions:  What were the decisions about?  What did the Supreme Court of the U.S. (SCOTUS) decide?  What do the decisions mean for the future of same-sex marriage?

What were the decisions about?

U.S. v. Windsor decides whether or not the Federal “Defense of Marriage Act,” or DOMA, is constitutional.  This law defines marriage as solely between a man and a woman and this affects any and all Federal laws concerning marriage; for example, a same-sex couple married in Massachusetts still cannot file their Federal taxes as a married couple.

A Federal district judge and the Second Circuit Court of Appeals already have struck down DOMA as unconstitutional.  There are two key parts to these earlier decisions: First, what “level of scrutiny” should laws that discriminate against homosexuals receive?  The Court of Appeals said that in light of a history of discrimination against homosexuality, such laws should receive “intermediate scrutiny”—a standard not as high as the “strict scrutiny” test used for racial discrimination, but higher than a mere “rational basis” test.  “Intermediate scrutiny” is the standard normally applied to discrimination based on sex.  The standard requires that the government have an important or compelling rationale to discriminate against a particular group.  The Iowa Supreme Court in 2009 ruled in Varnum v. Brien that the arguments for prohibiting same-sex marriage must be “exceedingly persuasive” to be constitutional (763 N.W.2d 862 [Iowa 2009]).

The second key part follows from the first: Does the law in question pass the test?  In short, are there “exceedingly persuasive” reasons to prohibit same-sex marriage?  If not, such a law violates the 5th and 14th Amendments’ requirement for equal protection under the law and would be unconstitutional.  Both the Federal district judge and the Court of Appeals found no such persuasive rationale and hence both struck down DOMA.

The additional issue before SCOTUS involves the issue of “standing.”  Since the Department of Justice agreed that DOMA was unconstitutional, does that agreement deprive SCOTUS of jurisdiction?  Further, does the Congressional group that brought suit (BLAG, or the “Bipartisan Legal Advisory Group”) have legal standing to challenge the lower courts’ rulings?  A good deal of time was spent on these questions during the Oral Argument before SCOTUS earlier this year.

Hollingsworthv. Perry is a decision about whether California’s “Prop 8,” passed in the 2008 election, is constitutional.  Prop 8 was approved months after the California Supreme Court ruled that the prohibition of same-sex marriage was unconstitutional.  For that reason, the vote effectively took away a right that had been extended to homosexual citizens for several months.  Again, a Federal district court judge and an appellate court (in this case the 9th Circuit Court of Appeals) struck down Prop 8 as unconstitutional.  The US Supreme Court had ruled in Romer v. Evans (1996) that homosexuals could not be singled out as a group to have their rights denied, as Colorado’s “Amendment 2” had done.  In striking down the Prop 8 vote, the 9th Circuit Court echoed the logic of Romer.

As in the DOMA case, the question of legal standing must be determined.  In Hollingsworth, the state government of California agreed with the court decisions that struck down Prop 8, so one issue SCOTUS must decide is whether a group of “concerned citizens” who support Prop 8 and helped to put it on the ballot in 2008 have the legal standing to challenge the court decisions.

What did the Court decide?

U.S. v.Windsor:  SCOTUS grants standing to the relevant parties and claims it has appropriate jurisdiction.  Then SCOTUS struck down DOMA as unconstitutional.  This is significant because they could have let DOMA "die" on procedural grounds by denying standing.  But by a 5-4 vote, the Court ruled that DOMA is unconstitutional because it deprives a class of people of their rights, thus denying them equal protection.  A key holding reads: "DOMA’s principal effect is to identify and make unequal a subset of state-sanctioned marriages. It contrives to deprive some couples married under the laws of their State, but not others, of both rights and responsibilities, creating two contradictory marriage regimes within the same State. It also forces same-sex couples to live as married for the purpose of state law but unmarried for the purpose of federal law, thus diminishing the stability and predictability of basic personal relations the State has found it proper to acknowledge and protect."

The majority opinion emphasizes that states traditional regulate marriage and DOMA is suspect for violating that federalist tradition.  And because it unfairly burdens same-sex marriages that are legal in certain states, it deprives same-sex couples of equal liberty.  Congress violated a "long-established precent" of allowing states to define marriage specifically to discriminate against same-sex couples, which "violates basic due process and equal protection principles applicable to the Federal Government."

(For the purposes of this entry, I am going to skip a discussion of the lengthy dissenting opinions.)

So, DOMA is dead, but the Court stops short of "creating" a basic constitutional right to marry for all same-sex couples.  Nonetheless, married same-sex couples will now have the same rights under Federal law that opposite-sex couples have, and that is huge news.

Hollingsworth v. Perry: The decision in the Prop 8 case is somewhat convoluted.  The Court, in effect, threw out the case based on denying standing to those appealing the decision, which was a group of citizens seeking to support Prop 8.  The Court instructed the 9th Circuit Court of Appeals that they wrongly granted jurisdiction.  

By denying jurisdiction, the Court leaves in place the lower court ruling that Prop 8 is unconstitutional.  So Prop 8 is dead, at least for the moment pending subsequent legal actions.  But the Court evaded any larger issues involving whether same sex couples should have a constitutionally recognized right to marry.

What do the decisions mean for the future of same-sex marriage?

There is no question that today's rulings are victories for advocates of same-sex marriage.  The death of DOMA is huge, since it gives the same rights to same-sex marriages in states where they are legal that opposite-sex couples have.  And it is also big news that same-sex marriage will again be legal in California, barring the rise of what I would call Zombie Prop 8 through efforts of advocates to challenge the trial court's ruling on other grounds.  Overall, today's decisions contribute to the national trend to recognize same-sex marriages.

At the same time, the Court refrained from establishing a clear constitutional right to marry for same-sex couples in all states.  Indeed, the Court went out of its way to avoid the question of whether a "rational case" can be made to prohibit same-sex marriage.  This is not a surprise, in some respects, since it is clear that the Court prefers to allow the matter to percolate through state legislatures.  But it is, in my opinion, a short-sighted and somewhat cowardly position to take.

Why?  Well, think back to the 1960s.  Until 1967, states were allowed to prohibit marriages between whites and blacks.  Not unlike the present time, where homosexuals have many recognized legal rights across the country, most forms of overt racial discrimination in matters of law had been struck down.  But it wasn't until 1967 in Loving v. Virginia that SCOTUS finally struck down state laws outlawing marriages between people of different races.  

So today we did not get the same-sex equivalent to Loving.  Indeed, the Court went out of its way to avoid making such a decision.  The result is a situation not unlike that faced by mixed-race couples before 1967:  Your ability to marry depends on what the state legislature decides.  Given the huge majorities in some southern states who oppose same-sex marriage, it could be many years before the right to marry is extended to same-sex couples in every state in the U.S.  Nate Silver famously predicted that 44 states will approve same-sex marriage by 2020.  Even if he is correct, that means 6 states would still discriminate against same-sex couples.  

Eventually the Court will recognize a legal right to marry for same-sex marriage.  Not only is this a safe claim from a political standpoint eventually, but the repeated failure of opponents of same-sex marriage to win any substantive reason to deny same-sex marriage in any state or Federal courts over the past few years suggests that further delays in recognizing a legal right to marry is mere politics, and hence mere cowardice.