Aspiring Rapper Wins Important Free Speech Victory Over School Officials

Free speech often requires us to defend people we really don’t like. The cases that make it to the Supreme Court are the most extreme examples, whether it is Nazis marching through Skokie or religious cultists picketing the funeral of a dead soldier. This term, the Supreme Court is considering the case of a guy who wrote Facebook posts threatening to kill his wife and a female FBI agent under the guise of rap lyrics. Elonis v. United States, No. 13-983. One of the “lyrics” that he claimed was entitled to First Amendment protection said:

There’s one way to love you but a thousand ways to kill you. I’m not going to rest until your body is a mess, soaked in blood and dying from all the little cuts. Hurry up and die, bitch, so I can bust this nut all over your corpse from atop your shallow grave.

However, that is not the rap that I want to focus on in this article. Instead I want to discuss the case of Taylor Bell, a high school student who took the message "if you see something, say something" to heart and was punished for speaking out by his school. (Note: If you see something, say something is the message of a serious of anti-bullying public service announcements that regularly air on TV).

A Student Writes Some Rhymes About Coaches and Their Bad Behavior

On December 12, the Fifth Circuit released its opinion in Bell v. Itawamba County School Board, No. 12-60264 (5th Cir. 12/12/14). You can read the opinion here. It is the case of a high school student who heard stories about coaches who were sexually preying on female athletes and wrote and recorded a rap song to bring attention to the problem. Rather than dealing with the problem, the school chose to punish the student for harassing and threatening the poor coaches. The student sued to clear his name. The Federal District Court ruled in favor of the School District, holding that the school could suspend a student for actions he took off-campus on his own time which might possibly cause disruption at school but did not.

Two judges of the Fifth Circuit held that Supreme Court precedents that allow schools to censor disruptive on-campus speech or speech promoting drugs at a school sanctioned event which took place off-campus did not apply to this particular case about a student who wrote, recorded and posted a song outside of school time. Here are some more details. According to the majority opinion:

In December 2010, Taylor Bell was an eighteen-year-old senior at Itawamba Agricultural High School with no record of any disciplinary problem aside from a single in-school suspension for tardiness. Bell is an aspiring rap musician, has written lyrics and music since he was a young boy, and began recording and seriously pursuing music in his early teens. In this respect, Bell considers himself an “artist.” Bell testified that several of his female friends at school told him before Christmas 2010 that two male athletic coaches at school, Michael Wildmon and Chris Rainey, had inappropriately touched them and made sexually-charged comments to them and other female students at school.

***

Bell admitted that he did not report these complaints to school authorities, but he explained that, in his view, the school officials generally ignored complaints by students about the conduct of teachers and coaches. During the Christmas holidays, while school was not in session, Bell composed and recorded a rap song about the female students’ complaints at a professional recording studio unaffiliated with the school. Bell did not use any school resources in creating or recording the song. According to Bell, he believed that if he wrote and sang about the incidents, somebody would listen to his music and that it might help remedy the problem of teacher-on-student sexual harassment.

Opinion, pp. 3-4.

The song that he wrote was both vulgar and violent. It contained lyrics like “gonna get a pistol down your throat” and

middle fingers up if you hate that nigga /
middle fingers up if you can’t stand that nigga /
middle fingers up if you want to cap that nigga.

Opinion, pp. 4, 5. Bell's lyrics were pretty nasty but so were the complaints which inspired them.


Despite the song’s inflammatory content, the only time it was played in school was when one of the coaches’ wives asked him about it and the coach got a student to play it on his phone.

On January 6, 2011,Wildmon received a text message inquiring about the song from his wife, who had been informed of Bell’s Facebook posting by a friend. In response to Wildmon’s inquiry, a student allowed him to listen to the song on the student’s cellphone. Wildmon immediately reported it to the Principal, Trae Wiygul, who, in turn, informed Teresa McNeece, the Superintendent.

Opinion, p. 8.

The School Strikes Back

Rather than investigating the coaches, the superintendent, the principal and the school’s attorney interrogated the aspiring rapper. He was ordered to leave school for the rest of the day and when he returned was told that he was being suspended immediately pending a disciplinary hearing.

At the disciplinary/due process hearing, no evidence was presented that the song had caused or had been forecasted to cause a material or substantial disruption to the school’s work or discipline. In addition, there was no evidence presented indicating that any student or staff had listened to the song on the school campus, aside from the single instance when Wildmon had a student play the song for him on his cellphone in violation of school rules. Neither of the coaches named in the song attended or testified at the hearing, and no evidence was presented at the hearing that the coaches themselves perceived the song as an actual threat or disruption.

Opinion, p. 12. The Disciplinary Committee advised the student that he should “censor” himself (yes, they used those exact words). The Committee voted to uphold the School’s decision to place Taylor in an alternative school for the remainder of the nine week period and bar him from any school activities during that same time. Their stated ground was that he had harassed and intimidated the coaches and had violated an unspecified state law.

The District Court Says Schools Are Entitled to Strike Back 

Taylor and his mother sued for violation of his civil rights. They sought nominal damages and an order clearing his name. At a hearing in the case, one of the coaches testified that the song had affected him so that he felt like he had to refrain from activities that might be perceived as inappropriate and the other testified that after games, he felt compelled to keep his students in the gym until he could get in his car and leave. The District Court threw out the Bells’ suit.

The court concluded that, pursuant to Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), the song’s lyrics “in fact caused a material and/or substantial disruption at school and that it was reasonably foreseeable to school officials the song would cause such a disruption.” Specifically, the court stated that Wildmon’s and Rainey’s testimony that the song “adversely affected” their teaching styles constituted an “actual disruption” to school activities. The court also concluded that it was “reasonably foreseeable” that the song, which “levies charges of serious sexual misconduct against two teachers using vulgar and threatening language and . . . is published on Facebook.com to at least 1,300 “friends” . . . and the unlimited internet audience on YouTube.com, would cause a material and substantial disruption at school.”   Opinion, pp. 15-16.

The Court of Appeals Says Not So Fast

Thankfully, two of the judges on the Fifth Circuit panel to consider the case (both appointed by Democratic presidents) saw through the nonsensical rationalizations of both the school officials and the lower court.

In Tinker v. Des Moines Independent Community School District, the Supreme Court famously stated said that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” However, it allowed schools the authority to regulate speech which disrupted the school’s activities. In the particular case, wearing black armbands to protest the Vietnam War was not a disruption. In Morse v. Frederick, 551 U.S. 393, 403 (2007), the Court went one step further and said that schools could punish conduct advocating drug use at a school-sanctioned and school-sponsored event which occurred off-campus.

The Fifth Circuit panel slapped down the lower court finding that even if Tinker applied to a student’s speech which took place outside of school, the School had failed to present any evidence of a disruption. Indeed, because the school blocked access to Facebook, where the song was posted, the school could not even forecast that it might cause disruption. The mere fact that the coaches might have been embarrassed by the rap was not enough to punish the student.

As the majority explained:

(W)e do not decide whether the Tinker “substantial-disruption” test can be applied to a student’s rap song that he composed, recorded and posted on the Internet while he was off campus during non-school hours. Rather, we decide only that, even assuming arguendo the School Board could invoke Tinker in this case, it would not afford the School Board a defense for its violation of Bell’s First Amendment rights because the evidence does not support a finding, as would be required by Tinker, that Bell’s song either substantially disrupted the school’s work or discipline or that the school officials reasonably could have forecasted such a disruption. With respect to the School Board’s alternative argument, we conclude that Bell’s song did not “gravely and uniquely threaten violence” to the school population such to justify discipline pursuant to this court’s narrow holding in Ponce that student speech that threatened a Columbine-style attack on a school was not protected by the First Amendment. We also conclude that Bell’s speech did not constitute a “true threat,” as evidenced by, inter alia, its public broadcast as a rap song, its conditional nature, and the reactions of its listeners.

Opinion, pp. 39-40.

I wish that the Court had gone one step further and said that Tinker does not apply to speech which takes place off-campus during non-campus hours. This case illustrates the tendency of governmental actors to cover up wrongdoing by punishing the messenger rather than actually addressing the problem.

The Dissent

Judge Rhesa Barksdale authored an extensive dissent. He argued that in the wake of Columbine and other school shootings that “school administrators must be afforded wide latitude in proactively addressing language that reasonably could be interpreted as a threat, harassment, or intimidation against members of the school community.” Opinion, p. 41. In my opinion, Judge Barksdale was way too deferential toward school authorities. School authorities should not be allowed to overreact to every pop tart chewed into the shape of a gun or cheerleaders who refuse to cheer for their rapists.

Coming Full Circle
 

I have to admit that I do not have any rap music on my ipod. I am pretty sure Dr. Dre is not on my health plan and N.W.A. is about as familiar to me as New Kids on the Block. I once saw Wang Chung open for the Cars, but I don't know the Wu-Tang Clan. I could criticize rap music but it is more fair to say that I just don't get it, any more than my parents got the music I listened to.

Nevertheless, I see a huge difference between Taylor Bell and the Elonis case before the Supreme Court. In the Elonis case, the threat was the message. He wrote about wanting to hurt specific individuals with whom he was in conflict. His "art" was focused entirely on his antagonists. Taylor Bell, on the other hand, was not a violent person (unless you view tardies as a predictor of incipient dangerousness) and did not have a personal beef with the coaches. Instead, he tried to draw attention to perceived sexual abuse being committed by persons in authority which was being ignored by the higher ups. If the First Amendment protects anything, it should be the right of a citizen to criticize the government. The fact that this citizen happened to be a student does not make his speech any less valuable. Concern for school safety should not mean that school officials are above criticism.

I am admittedly not a huge fan of how Taylor Bell expressed himself. When I disagree with someone, I don't threaten to put a pistol down their throat or cap them and I certainly don't use the n-word (which I think is in bad taste for blacks to use as well as whites). It may be that in the world of rap that type of violent imagery is considered to be rhetorical overstatement not meant to be taken literally. However, consider how the following lyrics would fare under the school's standard of being able to ban any speech that might be considered intimidating:

When we grew up and went to school
There were certain teachers who would
Hurt the children in any way they could
By pouring their derision
Upon anything we did
And exposing every weakness
However carefully hidden by the kids
Hey teachers, leave those kids alone.

These lyrics are not vulgar or violent and have some artistic merit since they were included on Pink Floyd's multi-platinum album The Wall. However, if Taylor Bell had written these lyrics or, better yet, changed them to be about coaches and female athletes, the school still would have had grounds for punishing him under their don't embarrass the teachers standard or the district court's likely to result in disruption standard. Thus, the problem was not how Taylor Bell expressed himself but the very fact that he did.

High school students can be counted on to say immature things and to act in bad taste. (At least I did). The internet magnifies the potential for this to occur in the public eye. Given the substantial volume of stupid, immature or vulgar things that kids say, both on and off campus, administrators could never punish them all. Inevitably, an overly deferential standard would allow school administrators to silence the misanthropes and outcasts while ignoring misbehavior by protected classes such as the rich and the popular. As a result, I applaud Judges Dennis and Graves for standing up for Taylor Bell's speech rights. Given the sensitive subject of this case and the strongly worded dissent, I anticipate that this case will make it to the en banc Fifth Circuit and possibly even the Supreme Court. As a result, the case bears watching.

Final Thought

The irony here is that rap music has a well deserved reputation for treating women as sexual objects to be exploited by men. Here, a male student used rap to speak out against sexual exploitation of female student athletes. On the other hand, it was the guardians of propriety who seem to have been most interested in protecting the delicate sensibilities of the accused sex abusers. It is a good lesson that reality frequently upsets our preconceived notions. Sometimes the scary rapper can be the dude standing up for women's rights. That is something to celebrate (although I hope that he expands his vocabulary beyond the n-word and the f-word as he develops his art).

Why We Need the Fair Debt Collection Practices Act

Several lawyers in my firm make their living navigating the intricacies of the Fair Debt Collection Practices Act.   Many disputes under the Act strike me as angels dancing on the heads of pins.   However, a novel I am reading effectively illustrates the need for this type of legislation.  

I am reading Ready Player One, a novel by Austin author Ernest Cline, about a dystopian version of America in 2044.   In the book, an evil corporation controls most aspects of daily life.   If a poor sap defaults in payment of his debts, the creditor can send their private security men to break down the door and take the debtor into indentured servitude where he must work off his debt as a tech support rep.   Of course, due to late charges, interest and deductions for the cost of room and board, the debtor can never pay off the debt.   Thus, failure to pay debts equates to a life sentence.

While arguing about whether a debt collector overshadowed the Mini-Miranda warning on his collection letter may seem trivial, it is better to fight these battles than to have corporate goons breaking down the door as a collection method.

Law Enforcement in Black & White & Blue

The killing of Michael Brown, an unarmed African American, has raised a media storm as bloggers, tweeters and even more or less legitimate news outlets spread information, rumors and outright fabrications about the incident.    Unfortunately, this tragedy, like that of Trayvon Martin, is a national Rorschach test--people see what they want to see in it.    A lot of that perspective has to do with how people view the police and young African-American males.   My perspective is a bit different.  I completely trust the police to treat me fairly, but I am wary of how they treat young African American males.   This is based on my experience.

In January 1983, my car broke down about ten miles outside of Ozona, Texas.   There had been a heavy snowfall and it was getting dark.   This was well before anyone had cell phones.   As I was stuck by the side of the road, wondering what I was going to do, a DPS trooper stopped by, gave me a jump and helped me on my way.   You don't forget being helped in a time of need.   On the other hand, when I have been stopped for speeding or having an expired registration sticker, it's been because I was actually speeding or had an expired inspection sticker.   The police in those instances treated me respectfully.    My personal experiences with the police have shown them to be helpful and professional time and time again.   If I happen to see the flashing blue lights behind me, my first thought is what did I do wrong, not why I am being hassled.      

However, after I had been practicing for a few years, I got a call from one of my professors from Texas Lutheran.   He said that two of his students had been arrested in Austin and asked if I could help them.   The students had been attending a party in East Austin when the police were called out to break it up.  One of my clients had spoken to the police in an attempt to defuse the situation. However, there was a confrontation between a female police officer and a party goer which resulted in the female officer trying to tackle a much larger male.   In the course of the struggle, she lost her nightstick.  According to my clients, they were then approached by officers who asked them if they had the nightstick.   When they said no, one of the officers asked them three times in rapid succession if they were going to leave.   When they told the officer that they were trying to leave, the officer arrested both of them for failing to obey a lawful order and charged one of them with public intoxication.    As a result, they had to spend the weekend in jail.    The situation was especially severe for one of my clients who was planning a career in law enforcement.   Had he been convicted, he could have kissed his future career goodbye.

I entered the case as a young, idealistic attorney hoping to clear up what was an obvious misunderstanding.   What followed was a series of events that could have been innocent or could have been harassment.   The three charges were filed as separate cases.   Every time one of the cases would be set for hearing, my clients would have to come up from Seguin.   Every time this happened, I would find out that the prosecutor had filed a motion for continuance at the last minute without telling me.    Eventually, two of the three cases were dismissed when the officer failed to appear.   When the third case came up for trial, the prosecutor asked me if my remaining client had the nightstick.   My client said that no, he had never seen the nightstick, but if it was that important, he would buy the officer a new one.   At that point, the final case was dropped.

My conclusion from this was that my clients were arrested on a pretext based on the mistaken belief that they had taken the officer's nightstick.   Of course, once they were arrested and booked, it should have been readily apparent that they didn't have it.   Nevertheless, two innocent college students and one naive lawyer went through a dance of last minute continuances and no-show dismissals until the final case was resolved.    My former professor and I saw these students as promising young men seeking to obtain an education and better themselves.   Law enforcement saw them as thugs and petty thieves.   

My experience with the case of the college students and the missing nightstick was disillusioning.   It took away my illusion that law enforcement could be trusted to "protect and serve" everyone.   Now whenever, I hear about police shooting an armed black man who allegedly grabbed for the officer's weapon or reached into his belt or otherwise made a threatening move, I have to wonder whether it went down that way or whether it was just an after the fact excuse for an inexcusable action.   I don't know whether police racism is widespread or whether it is only the unusual cases that make the news.   However, I do believe that in some cases, it does exist.    I know because I have seen it.

  

   

What is Marriage?

I am married.   So are my parents and my brothers. Between us we have over a century of marriages.  I also know a lot of people who are married.   However, recent events have left me wondering about what marriage really means.   On the one hand, there is the view that marriage is any voluntary arrangement between two (or possibly more) people.   This view is expressed in the statement that no one should be allowed to tell you who you can love.   On the other hand, Texas Attorney General Greg Abbott recently filed a brief in which he stated that the purpose of marriage was procreation, which, by definition, can only occur between a man and a woman.   So what is marriage?

History of Marriage

Marriage has been around for a long time.  According to one source I read, "Pair bonding began in the Stone Age as a way of organizing and controlling sexual conduct and providing a stable structure for child-rearing and the tasks of daily life."   In Genesis 2:24, we read "For this reason a man shall leave his father and his mother, and be joined to his wife; and they shall become one flesh."    According to scholars, Genesis was written down about 2,500 years ago.    Thus, marriage as the idea of the joinder of a man and a woman in a permanent commitment goes back thousands of years.

Monogamy was not always the sole narrative, even in the Judeo-Christian tradition.   Jacob and King Solomon had multiple wives.   In the West, the battle for monogamy occurred between the Sixth and Ninth Centuries when the Catholic Church told the nobility that no, you cannot have a second wife.   By the Ninth Century, monogamy was the rule, although sects such as the Mormons challenged this status quo from time to time.   One practical limitation on polygamy was that, except in unusual circumstances, one man with many wives meant many men with no wives.   

Throughout history, there have been both civil (government-sanctioned) and religious marriages.   The ancient Greeks, Romans and Hebrews all had government recognized marriages.     On the other hand, religious marriage in the Christian church goes back about one thousand years.  The Catholic Church began speaking of marriage as a sacrament in the 12th century and required that couples publish notice of intent to marry, known as banns, in 1215.    The Catholic Church formally recognized marriage as a sacrament in 1536.   The Protestant churches did not define marriage as a sacrament, but solemnized them with a religious ceremony.   The current protestant marriage ceremony dates back to Thomas Cranmer and the Book of Common Prayer which had a service defined in 1549.  Massachusetts began requiring marriage licenses in 1639. After the French Revolution in 1792, only civil marriages were recognized.   England, on the other hand, required that legal marriages be performed in the Anglican Church (although they had exceptions for Jews and Quakers) in the Clandestine Marriage Act of 1753.    However, the English did allow civil marriages in 1836.        

While same sex relationships existed in the ancient world, they generally did not have the same status as legal marriages.   Under Roman law, legal marriage could only exist between a male Roman citizen and a female Roman citizen, although some Emperors allowed themselves same-sex marriages.   Same-sex marriage was outlawed by the Christian church in the Theodosian Code in 324.  The first gay marriage in the United States was performed in 1969, although it was not legally recognized.    Denmark recognized a "registered partnership" status in 1989 and the Netherlands allowed same sex marriage in 2001.   Massachusetts became the first U.S. state to recognize same sex marriage in 2004.    

Purposes of Marriage

For much of history, marriage was intended to promote alliances between families or clans.   Marriages were negotiated by the families with little input from the couple.    Thus, marriage served the purpose of building ties between groups of people.    It was not until 1140 that the Benedictine monk Gratian required couples to give their verbal consent in order to have a valid marriage.

Producing children has also been an important purpose of marriage.   Children benefited the family by providing for its continuance and by providing workers to support the family.   Children benefited the larger group by increasing its numbers and thereby its power and influence.    However, producing children was not a requirement.   According to Stephanie Coontz, the Catholic church would annul a marriage that was not consummated but not one where the couple was unable to have children.  

Marriage also provided a structure for raising children.   This benefits the larger society which does not have to incur the cost of taking care of the children.

Romantic marriage did not become common until more recently.   Different sources date it to the Victorian era in England or the last century.   Romantic marriage bound a couple together through emotional ties and improved the well-being of the partners.   The Catholic priest and sociologist Andrew Greeley wrote extensively about marital love as an experience of the divine love for mankind.

Characteristics of Marriage

While marriage has changed over the centuries, some generalizations can be made about marriage today. 

First, marriage is a relationship recognized and regulated by the state.   State laws contain extensive rules as to who can marry, when a person can marry and how many spouses a person can have.   Thus, you cannot marry a sibling or a first cousin, you cannot marry (even with a parent's consent) at age 12 and you cannot enter into a new marriage until the old one has been dissolved.    You also cannot marry your dog or your pickup truck.    Civil marriage and religious marriage co-exist in this country.    The state has the right to tell individuals who they can marry, but it cannot compel religious institutions to officiate any civilly valid marriage.   

Marriages tend to be a long-term commitment.   While it is a common trope that most marriages result in divorce, the opposite is actually true.   According to the U.S. Census Bureau, the percentage of women who were once married but were now divorced ranged from a low of 13.8% among 25 to 29 year olds to a high of 41.1% among those 50 to 59.   Thus, there is no age group in which more half of those ever married were divorced.    According to the CDC, the likelihood of a first marriage lasting at least twenty years was 52% for women and 56% for men.  However, there is a lot of variation among age groups. For those born between 1960-64, 70.2% of men and 67.0% of women made it to their 20th anniversary.  However, for those born between 1980-1994, the percentages were 60.0% and 56.6% respectively.  The meaning of these statistics depends on whether you are a glass half full or a glass half empty person.  If your expectation is that 100% of marriages should last a lifetime, then the stats are pretty grim.   However, I would say that having more than half of first marriages last 20 years shows that the institution is pretty healthy.

Marriage is also the prevalent status of heterosexuals, although the date of first marriage has grown later.  Among those aged 50-59, 89.2% of men and 90.9% of women had been married at one time.   In the same age group, 70.2% of men and 65.0% of women were currently married.   

A married couple is also the prevalent status for households with children under age 18.  According to the U.S. Census Bureau, in 2011, 66.8% of households with children under 18 were married couples, 7.8% had male heads of household and 25.3% had female heads of household.   On the other hand, the CDC found that in 2012, 40.7% of births were to unmarried women.   These figures varied from 17.1% among Asian Americans to 72.2% among non-Hispanic Blacks.    Taken together, these statistics suggest two possible alternatives.   One is that women are giving birth out of wedlock and then later getting married.   The more depressing possibility is that the overall statistics reflect an earlier trend and that raising children in married couple households is on the decline.   

Same-Sex Couples

Statistics for same sex couples are harder to come by.   According to the U.S. Census Bureau, there were 901,997 same sex households in the United States in 2010, making up 0.8% of total households.   (The same report showed that husband-wife households made up 48.4% of households). This number further breaks down into 552,620 households with unmarried same sex partners and 349,377 same sex households with spouses.    Since only a few states recognized same sex marriage in 2010, the number of  same-sex "spouse" households may include couples whose relationship was not recognized by the state.  A different Census Bureau report, also based on the 2010 Census, pegged the number of same-sex households at 594,000 with 131,794 married couples.   It also estimated that 115,064 same-sex households included children.    Thus, the percentage of same-sex households with children was only 19.4% of the total.

According to a recent study, about nine million Americans are gay, lesbian, bisexual or trans-gender, representing 3.8% of the population.   The percentage of married couples makes up just 2.9% of the GLBT population (131,794*2/9,000,000).   However, that doesn't say much about how many GLBT couples would wed, since most states do not allow gay marriage.  However, taking the total number of same-sex households and dividing by the estimated number of GLBT individuals in the country, indicates that only 13.2% of the GLBT population would be interested in same sex marriage if it were available.    13.2% of a total population of 3.8% indicates, a total percentage of 0.5% of the population that might opt for same-sex marriage if it were available.

Statistics on duration of same-sex relationships are harder to find. Many of the articles that I found were either advocacy pieces for or against same sex marriage or were abstracts of scholarly articles that I would have had to purchase to get the details.  One study which had a small study size determined that there was a 25% probability that a same-sex relationship would last eight years compared to a 60% rate for opposite sex couples.    A Scandinavian study found that divorce risks in same sex couples was "considerably higher" than with opposite sex couples.   

Monogamy is not as common in same sex relationships are opposite sex relationships.  A study of 556 same sex couples who wed in California during the brief window in which same sex marriage was legal found that 50% had sex outside the relationship.   

An article in Psychology Today contradicted both of the conclusions discussed above.  It said that same sex couples were more likely to have stable relationships and less likely to cheat than opposite sex couples.  

I am not qualified to interpret the limited data I could find.    I think it is at least an open question as to whether same sex relationships are "just like" opposite sex ones.  

Conclusions


It looks to me like there are three different types of marriage running through history:  religious marriage, which is marriage according to the doctrines of a religion; civil marriage, which is marriage recognized by the government; and social marriage, which is people's actual practices.    

Under the First Amendment, religious groups are free to bless or not bless relationships according to their beliefs.   As demand for same-sex marriage has built up, some religions have adapted to meet that demand, while others have not.   While it seems crass to refer to religious beliefs being evaluated in the marketplace of ideas, that is precisely what is happening.    Over time, people whose beliefs compel them to support same-sex marriage will flock to flocks which offer it, while people with more traditional beliefs will seek out more traditional churches.   While people's choices do not establish the validity of a religious belief, they do show support for it.   If same-sex marriage is inherently right and just, you would expect to see growth in churches supporting it and decline in those which don't.


Civil marriage is whatever the government chooses to recognize.    Historically, civil marriage and religious marriage have been closely intertwined, but that is not a given.   In this country, civil distinctions between who can marry are regulated by the equal protection clause which says that the government cannot draw arbitrary distinctions between similar classes of people.    The people who favor mandating recognition of same-sex marriage argue that same-sex attraction is an unchangeable characteristic like race.    Those who argue against it, such as Atty. Gen. Abbott, argue that same-sex relationships are substantively different than opposite sex ones.   My personal belief is that same-sex marriage is too new of an institution for the courts to mandate its recognition.   The better approach is to let the states experiment with allowing it or not.   Of course, this may lead to de facto recognition of same-sex marriage.   Under the Constitution, the states may be compelled to recognize marriages performed in other states which allow same sex marriage.   


Finally, there is what people actually do.   Pair-bonding has existed since the Stone Age, long before there was religion or government.   The fallacy in the argument that the government can't tell you who to love (and that therefore same-sex marriage should be legal) is that the government never could tell you who to love.   While the government can withhold recognition from same-sex marriages, it can't force anyone to wed.   As a result, those people who choose not to enter into a legally recognized marriage are free (within limits) to create their own relationships.   Indeed, there are more unmarried opposite sex couples in this country than there are opposite sex households.    In the long run, if same-sex relationships turn out to be more like Cam and Mitch from Modern Family, then societal acceptance of same-sex relationships will eventually reach a tipping point and government and most religions will embrace it.   On the other hand, if same-sex relationships turn out to be transient and insubstantial, or worse, inconclusive, we will continue to rock along much the same way that we are now.   


Nevertheless, however the courts define marriage will not affect my own marriage.   If the courts were to legalize same-sex marriage in Texas, I am not going to leave my wife for a guy.   Similarly, if the government were to withdraw all legal benefits for opposite-sex marriage, it would not change our relationship.   

When people talk about same-sex marriage destroying "traditional" marriage, I think they are worried about the slippery slope argument.   If marriage is extended from one man and one women to two individuals of the same or opposite sex, what is to prevent marriage from being extended to one man and three women or a man and his pickup truck?    What if marriage is ultimately expanded to any relationship between any combination of consenting, sentient beings?   Will marriage become defined so broadly that it become meaningless?   I don't think so.   Civil marriage is only one of three forms of marriage.   Religious marriage and social marriage would exist even if the government expanded it beyond recognition.   Marriage will still fulfill a function in society which will not go away based on what the government says.   

Does this mean that the government should be required to recognize same-sex marriage?    Not necessarily.   Oppose-sex relationships date back tens of thousands of years, while same formalized same-sex relationships are of much more recent origin.   Opposite-sex relationships remain the norm while same-sex households are a minority of a minority.    Under our federal system, the states should be allowed to experiment with allowing or not allowing same-sex marriage, recognizing that in the sweep of human history this is a relatively new innovation.    The Defense of Marriage Act (DOMA), which has now been invalidated, was a bad idea because it did not defend marriage and because it interfered with the traditional right of the states to define marriage.    However, now that it is gone, there is no need to go the opposite way and hold that everything not forbidden is required.