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This podcast uses government documents to illuminate the workings of the American government, and offer context around the effects of government agencies in your everyday life.
Welcome to Civil Discourse. This podcast will use government documents to illuminate the workings of the American Government and offer contexts around the effects of government agencies in your everyday life. Now your hosts, Nia Rodgers, Public Affairs Librarian and Dr. John Aughenbaugh, Political Science Professor.
N. Rodgers: Hey Aughie.
J. Aughenbaugh: Good morning, Nia. How are you?
N. Rodgers: I'm good. You sound a little froggy.
J. Aughenbaugh: It is for our listeners, not from the central Virginia region of the United States.
N. Rodgers: It's Holland.
J. Aughenbaugh: Yes, this is the start of allergy season.
N. Rodgers: Technically, never really ends.
J. Aughenbaugh: It never really ends. We have a dormant period for a couple of months in the winter.
N. Rodgers: Exactly. In the dead of winter, December and January. After that, all bets are off.
J. Aughenbaugh: When we started having this false spring, two or three days and things start budding, my allergies kicked in which of course as Nia knows, because we've discussed this off recording. When I was a much younger person, I did not suffer from allergies. It was only when I got into my middle ages that all of a sudden my body was just like be gone. What are these foreign substances? My allergies have kicked in and for me, it affects my vocal cords, which is a problem because I talk a lot.
N. Rodgers: I moved all around the country as a kid.
J. Aughenbaugh: Yeah.
N. Rodgers: It was not until I moved to RVA. It was not until I moved to Richmond, Virginia that I suddenly discovered that I was allergic to stuff. I'm allergic to Richmond. It's good for me to know. It's like cats. I'm allergic to cats and yet I cannot resist petting them. I'm allergic to Richmond and yet I have absolutely no plans to move. I don't know what that tells you about me except that maybe I'm stubborn. I do love DC,I love my job.
J. Aughenbaugh: I've made my home here.
N. Rodgers: You just got to deal with this not in the gravel.
J. Aughenbaugh: Yes.
N. Rodgers: You do sound a little like what is her name? Turner.
J. Aughenbaugh: Kathleen Turner.
N. Rodgers: Kathleen Turner.
J. Aughenbaugh: Yeah.
N. Rodgers: Sound like anybody. She's the one you'd want to sound like. She's ten times [inaudible] in her voice.
J. Aughenbaugh: Yeah, a movie recommendation.
N. Rodgers: Evidence.
J. Aughenbaugh: Yeah, that's another nice actress reference. But in regards to Kathleen Turner, and I'm drawing a point. Nia, you've got access to your computer. She was in a movie with William Hurt.
N. Rodgers: Heat.
J. Aughenbaugh: Body Heat.
N. Rodgers: Body heat.
J. Aughenbaugh: It was written and directed by Lawrence Kasdan. It's a neo noir movie. Is it quite good? She does a really good job as a Femme Fatale in that movie.
N. Rodgers: Listeners will tell you about Aughie personality versus my personality, is that Aughie went to the film noir, serious film. I think they were both nominated for Best Actor. I went to Michael Douglas Romancing the Stone, which is ridiculous movie. It's a rom com.
J. Aughenbaugh: The plots ridiculous but those two actors.
N. Rodgers: They had great chemistry.
J. Aughenbaugh: They had great chemistry, and it was pretty obvious that they made that movie work simply because they openly embraced. The how far fetched the basic plot was. They had a good time making it.
N. Rodgers: That's how I feel about Ocean's 11. It's got a great cast and they were clearly having a good time.
J. Aughenbaugh: Sure.
N. Rodgers: The whole point of that movie was was to have fun. But the point of what we're going to talk about today is not particularly fun, but it is something that we have to, I think, talk about a little bit because it's an act that I think slid under the radar. I don't think he got as much attention.
J. Aughenbaugh: No, I don't think so.
N. Rodgers: As I would have expected it.
J. Aughenbaugh: It was one of those rare bipartisan efforts in the recent Congress. When Nia and I saw it in the news. We were like, whoa.
N. Rodgers: Whoa, they're working together? Wait a minute. Government is functioning? I'm going to sit down and have a cup of tea because now I don't know how to handle life.
J. Aughenbaugh: Well and another reason why I wanted to do an episode about this law is because its one institution of government responding two cues that another institution communicated. In again as an institutionalist, and I tend to view political phenomenon through an institutionalist lens. This was pretty fascinating to me.
N. Rodgers: We're talking about public loss 117-228.
J. Aughenbaugh: Yes.
N. Rodgers: Which is?
J. Aughenbaugh: The Respect for Marriage Act. It was passed in late 2022. This is another phenomenal thing. It arose rather quickly after the Supreme Court's ruling in Dobbs versus Jackson which was issued by the court in June 2022.
N. Rodgers: I would argue that it's actually in reaction to one justice's commentary.
J. Aughenbaugh: Yes.
N. Rodgers: In that case. It's not even the whole case.
J. Aughenbaugh: Yes.
N. Rodgers: It's the Justice Thomas freaked Everybody out.
J. Aughenbaugh: Yes. What Nia is referring to is in the Dobbs case, which for listeners, if you don't know that, that's where the Supreme Court said that a woman's right to choose is not constitutional right in the US Federal Constitution. The majority opinion written by Justice Alito overturned two Supreme Court precedents, Roe V. Wade and Planned Parenthood versus Casey. But what Nia is referring to is Justice Clarence Thomas's concurrent. In his concurrence, Clarence Thomas called into question the use of substantive due process as a justification for a number of Supreme Court rulings including a case from 2015, Obergefell versus Hodges. Now, in the Hodges case, Nia, the Supreme Court declared, what right for whom.
N. Rodgers: Was that not that you had to recognize a marriage from another state?
J. Aughenbaugh: No. Obergefell versus Hodges is where the Supreme Court said that same-sex couples had the same marriage rights as opposite sex couples.
N. Rodgers: Thank you.
J. Aughenbaugh: Yes. There were an overwhelming majority in the United States that had prohibited before this ruling in 2015, same-sex marriage. The Supreme Court, in a narrow vote, five to four, said that same-sex couples had the same marriage rights as did opposite sex couples.
N. Rodgers: Right. Because there's nothing in the constitution that says a marriage has to be between two people of the opposite genders.
J. Aughenbaugh: Well, and for that matter, there's no constitutional right to marriage. As you and I have discussed actually on this podcast, could all 50 states get rid of the institution of marriage tomorrow if they wanted to? Sure. It would probably upset.
N. Rodgers: A whole bunch of red states.
J. Aughenbaugh: Yes
N. Rodgers: It would freak out and it would never happen in the red states. It might happen in a blue state.
J. Aughenbaugh: But I mean a whole bunch of people when they get to a certain age are like, hey, I want to get married, blah, blah, blah.
N. Rodgers: We have had States in the past, not have schools rather than have desegregated schools.
J. Aughenbaugh: Yes, right.
N. Rodgers: There are instances of states cutting off their nose despite their face to say, well, if you say marriages with anybody, we say there's no such thing as marriage, which would be interesting.
J. Aughenbaugh: You are correct.
J. Aughenbaugh: The Respect for Marriage Act came as a direct response to Justice Thomas's concurrence.
N. Rodgers: None of that might be legitimate. They were like, no, let's put something into law to protect.
J. Aughenbaugh: Because what you had was one institution, the Congress, who were like, whoa. Because if the court was willing to overturn its rulings about abortion, is the court willing to overturn its recent in the history of the court? Let's be very clear.
N. Rodgers: Twenty-fifteen, right?
J. Aughenbaugh: Yeah, 2015. Recent precedent in regards to same-sex marriage. That's what got Congress spurred to action.
N. Rodgers: Someone might even argue that this was an overreaction. They went to an extreme by a potential possible maybe threat in the future of some kind. I like that he said, "You know, that may not apply to anything," and they went, "Ugh," and they went right over and did something about it. Clearly what we need is Justice Thomas to threaten the Congress more often to get them to do things.
J. Aughenbaugh: You could say that.
N. Rodgers: Not that I'm certain that I like the idea of Justice Thomas being the enforcer, but it is an interesting.
J. Aughenbaugh: Students ask me this all the time. Why do certain justices writes certain concurrences?
N. Rodgers: He does it a lot of times to yank people's chain. Let's be honest.
J. Aughenbaugh: Well, he may do to yank people's chain. On the other hand, one of the purposes of concurrences is to go ahead and send messages to the political branches, the states, the people, the legal community. Hey, you may need to think about this.
N. Rodgers: Because if you brought another case that had a similar thing, we might.
J. Aughenbaugh: Congress has demonstrated over the years, not overreacting. Their problem is they don't respond when the court does send them very clear messages, right?
N. Rodgers: Yeah, this is more unusual than it is anything. You're going to get to why it's so unusual in terms of its bipartisanship later. But what does the actual law do?
J. Aughenbaugh: First, the Respect for Marriage Act actually repeals the 1996 Defense of Marriage Act, the infamous DOMA. DOMA was passed by the Republican-controlled Congress and signed into law by Democratic President Bill Clinton. The Defense of Marriage Act defined marriage as between a man and a woman and limited the receipt of federal benefits to that precise legal relationship.
N. Rodgers: You could not get someone's pension or social security. None of that could happen if you were a same-sex couple.
J. Aughenbaugh: That's right.
N. Rodgers: Part of that was that you weren't going to get the benefits of being married. You couldn't list on a form, like on our taxes. None of that stuff. That's how they were trying to control the idea that is, that marriage is between a man and a woman. By the way, it should be noted for the listeners record at this point. Aughie, I hope you don't mind me saying, is divorced.
J. Aughenbaugh: Yes.
N. Rodgers: I am single, have never been married. Aughie and I don't particularly hold the institution of marriage in any holy position in the sense of, I think neither one of us care who gets married as long as both people are adult consenting.
J. Aughenbaugh: Yes.
N. Rodgers: We don't have a dog in that fight.
J. Aughenbaugh: We don't have a dog in the fight.
N. Rodgers: We honestly, I think, at least I'm speaking for myself and I'm pretty sure I'm speaking for Aughie when I say, we don't care who wants to get married. Go ahead. It's a legal contract. Go get married, do whatever you want to do. As long as, like we said, you're two consenting human adults, doesn't involve animals, doesn't involve children, and it doesn't involve people who can't consent. But if you can tick all the boxes, go along with you happy self and do.
J. Aughenbaugh: I've long subscribed to the Dolly Parton, that infamous country music singer's view of marriage. When she was asked, did she have a problem with same-sex couples, gay marriage. She replied, 'Why should heterosexuals be the only one to enjoy the pains of marriage?" If you want to go ahead and do it, feel free.
N. Rodgers: Sorry, we just wanted a little aside on the fact that, we don't actually-
J. Aughenbaugh: In our current lives, we don't have a dog in this house. We're on the porch enjoying lemonade.
N. Rodgers: Y'all go on and get married if you want to. You throw rice or confetti or carnations or whatever makes you happy.
J. Aughenbaugh: I'll go online and find one of the gifts that you have registered for, and I'll get it.
N. Rodgers: Exactly.
J. Aughenbaugh: I'll show up to the ceremony and the reception. I will drink your booze.
N. Rodgers: Be happy for you.
J. Aughenbaugh: Be happy.
N. Rodgers: As Aughie and I are both cynical and say to ourselves in the back of our heads, wonder if this will be 50% of people who don't stay together. But we will not say that to you at your wedding.
J. Aughenbaugh: No.
N. Rodgers: Because we'll happy for you.
J. Aughenbaugh: We'll be happy for you.
N. Rodgers: We'll hope that you can make it work. Because just because neither one of us has been able to do that doesn't mean that other people can't do that.
J. Aughenbaugh: Exactly.
N. Rodgers: We want for them happiness.
J. Aughenbaugh: Back to the law.
N. Rodgers: Back the law. The law's provisions, so the first thing it does is it gets rid of DOMA.
J. Aughenbaugh: Correct. The next thing and the law was very clear about this, Nia, the bill, the law does not require the states to allow same-sex marriage. It's not the federal government saying to all 50 states, you must allow same-sex marriage. That's the current reality because of the Supreme Court's Obergefell v. Hodges' decision. Rather what the law says is, if the Supreme Court overturned Obergefell and previous state prohibitions on same-sex marriage came back into effect, this law would require the states and the federal government to respect marriages conducted in places where it is legal.
N. Rodgers: Can I make a comment here? This is like after the court overturned Roe v., there were triggered laws in the states, that automatically made abortion illegal in some states. This is to prevent trigger laws in the states from automatically banning, no, they could still ban same-sex marriage in their state, but if you got married in a different state, they would have to recognize your marriage. They can't make the laws such that your marriage does not exist if you got married somewhere else.
J. Aughenbaugh: That's correct. The Respect for Marriage Act is basically reaffirming, in my estimation, one of the most important clauses in the US Constitution.
J. Aughenbaugh: That is the full faith in credit clause, which basically says, if you enter into a contract in one state, every other state has to honor that contract and its courts. Nia.
N. Rodgers: If you and I had a property dispute in Virginia and Virginia settled it, every other court, I can't just say well, then I'm going to sue you in North Carolina, then I'm going to sue you in Tennessee. I'm going to sue you in all 50 states and drag this out forever. The courts would say, no, that decision has been made.
J. Aughenbaugh: It's in the US Constitution. The classic dilemma is, let's say, Nia, you and I enter into a business contract and after a few months.
N. Rodgers: To make drugs.
J. Aughenbaugh: Yes.
N. Rodgers: See earlier episode.
J. Aughenbaugh: But after a few months, you come to the conclusion that being my business partner is a fate worse than death.
N. Rodgers: You go all Santa's on me and start making things.
J. Aughenbaugh: Right. You decide that you don't want to deal with this anymore. Your logic is, I'm going to move to another state and you won't have to go ahead and fulfill your obligations per our contract. If that contract was recognized by the Commonwealth of Virginia.
N. Rodgers: I can't move to Hawaii to get out of it.
J. Aughenbaugh: Yeah, that's right. Because my lawyer can file a lawsuit in a state court in Hawaii and that state court in Hawaii will force you to fulfill your obligations because of the contract you entered in Virginia.
N. Rodgers: It's not saying to Virginia you have to allow same-sex marriage. You're saying to Virginia if a couple got married in California where same-sex marriage is legal and they moved to Virginia, they would still get to file married jointly taxes in Virginia because their marriage is valid regardless of whether you allow it in the State of Virginia or not.
N. Rodgers: If that couple wanted to get divorced in Virginia, Virginia would have to recognize the divorce.
N. Rodgers: The carry-on.
J. Aughenbaugh: These are all related to the fact.
N. Rodgers: Full faith and credit.
J. Aughenbaugh: The full faith and credit of the contract.
N. Rodgers: Because otherwise, all 50 states could go off and herring often crazy directions.
J. Aughenbaugh: Again, the full faith and credit clause was to address one of the primary problems of the Articles of Confederation, Nia, you had a whole bunch of states that were hypercompetitive with one another and they want to honor the business contracts entered into in other states. It was just destroying the young nation's economy. Because there'll be no good reason for you as a business person to honor your contract because all you'd have to do is just move to another state and say, come and find me and sue me in this other state that doesn't recognize that contract. I don't care if you're talking about capitalism, socialism, communism. If a contract won't be honored in a different jurisdiction.
N. Rodgers: Then it's meaningless.
J. Aughenbaugh: Yeah. It's just mere words on a piece of paper. Guys, I'm sorry to do this if it seems like I'm being cynical about marriage. Really I'm not. But as far as all 50 states are concerned.
N. Rodgers: It's a contract.
J. Aughenbaugh: Marriage is a business contract.
N. Rodgers: That's why you can go to the courthouse, sign the document that agrees to whatever that state, whatever the language is that they have that you're agreeing to.
J. Aughenbaugh: The licensing agreement is between two people.
N. Rodgers: You sign it, the other person's signs it in as far as the state is concerned, you have entered into a contract of marriage.
J. Aughenbaugh: That's right.
N. Rodgers: This whole thing where you go someplace and you have lots of people involved and you have a jogger [inaudible] you have all that stuff, everything all of that and you have big food afterwards. All that is fluff. Because you have signed the document or you will sign the document at the end of that day. Which is why the minister also has to be a representative of the State.
J. Aughenbaugh: That's right.
N. Rodgers: That's why they say by the power invested in me by [inaudible]. Because otherwise, it can be Aughie saying you all seem married to me. Go ahead which bad selfs and the state does not recognize that.
J. Aughenbaugh: Let's have a beer.
N. Rodgers: Because he hasn't put it in the paperwork. It's a person who can put it in the paperwork.
J. Aughenbaugh: That's right. They are licensed.
N. Rodgers: But it is, it's a contract. It's like buying a car. It's like buying a house, getting married is you make promises that you will do X thing and the other person will do X thing and usually they are not moral promises, they are financial promises.
J. Aughenbaugh: That's right. Because there is a lot of money associated with being married. There's a lot of benefits and penalties with being married financially.
N. Rodgers: You have to show why do you have to prove you're overage.
J. Aughenbaugh: Yeah. In many states, you have to take blood test. In so many ways, we have made marriage a bureaucratic institution.
N. Rodgers: By the way, you have to pay for that contract.
J. Aughenbaugh: Yes, you do.
N. Rodgers: You can't go down to the courthouse and just sign the document. You have to pay?
J. Aughenbaugh: Yes, you do.
N. Rodgers: Because there's nothing that involves the court systems or lawyers that doesn't involve [inaudible].
J. Aughenbaugh: Ones the government bureaucratizes something there are fees. Because somebody's time costs certain amount of money and there's overhead and we need to keep the lights on at the courthouse, blah, blah, blah. Now, another part of this law is the various religious exceptions in the law.
N. Rodgers: Churches don't have to marry you or perform marriages, I should say which is don't marry people. Well, I don't know [inaudible].
J. Aughenbaugh: Churches, mosques, synagogues, religious educational institutions, and other religious non-profits can not be sued if they refuse to, "Provide services, accommodations, facilities, goods or privileges for conducting or celebrating a same-sex marriage." This was an important provision of the law to garner support from Republican members of both houses of Congress. Now, there are liberals. In particular some advocates for same-sex couples who did not like that particular provision because they argue that it would allow religious organizations to discriminate against same-sex couples. But to get Republican support, that feature had to be added to the law.
N. Rodgers: Can I?
J. Aughenbaugh: Yes.
N. Rodgers: I'm going to venture a tiny little opinion here. I don't think you should force churches to perform marriages that are outside their religious comfort zone. Then it gets weird. That's freedom of religion. You get weird when you start saying to religions, I'm going to need you to perform a marriage that is outside your faith. I think that it's not a good idea to do that.
J. Aughenbaugh: The distinction I draw Nia is government compelling organizations to do things against their beliefs and doctrines versus saying the religions.
J. Aughenbaugh: Don't have to. If the Free Exercise Clause of the First Amendment has any meaning, it should allow religious organizations not to do things that may be the majority want them to, because the majority is represented by the government. The government compelling, say, for instance, a Catholic church to have same-sex marriages, wedding ceremonies would strike me as the government foreseeing a religious group to do something. All this law says is these groups cannot be compelled.
N. Rodgers: The flip to that is that the IRS gives them tax breaks, which one can argue costs the American public and therefore that is why they shouldn't be discriminated. The people who were saying that there is a discrimination problem, do have a foundation for that in saying, okay, then you don't get 501C3 status.
J. Aughenbaugh: Oh, sure.
N. Rodgers: You can discriminate all you want if you choose to do that, but you can also claim benefit from the federal government because that takes away money from me and I have a different set of beliefs. There is a legitimate argument to be made. It's just that I feel weird about it.
J. Aughenbaugh: I understand why you feel weird about it, but it's also the reason why an increasing number of Republican elected officials are saying to colleges and universities, if you're not going to be an unbiased seeker of truth and knowledge.
N. Rodgers: Then you can't be a 501C3.
J. Aughenbaugh: That's right. Because for listeners outside the United States, many colleges and universities in the United States have prime real estate that they pay no taxes on. You can say that about also churches, synagogues, mosques, and religious schools. They don't pay property taxes, and that's a huge tax break for them, and they've accrued this over hundreds of years. Likewise, if institutions of higher education are increasingly teaching or encouraging a certain ideological point of view, then they're not unbiased, and therefore, they should also anti-up to the tax coffers and make their annual, if you will, donation to be a property taxes.
N. Rodgers: It's complicated.
J. Aughenbaugh: It is complicated.
N. Rodgers: But if you applied it to one, you'd have to apply it to all.
J. Aughenbaugh: Yes. Again, because the American political system has been so based on pluralism, this idea that groups are in competition with one another. Telling religious organizations they cannot participate in the political life of the country where they reside goes against American political culture. Likewise, Nia, you and I work with a whole bunch of faculty who basically argue that we should be teaching students the correct way to think.
N. Rodgers: Exactly. Instead of helping them find their -
J. Aughenbaugh: Find their own voice, their own thoughts.
N. Rodgers: Their own path through.
J. Aughenbaugh: To think critically for themselves. Well, if that is the case, well, fine, but we're giving you a tax break predicated on you providing a collective.
N. Rodgers: Mutual learning environment.
J. Aughenbaugh: A collective public good, right?
N. Rodgers: Right.
J. Aughenbaugh: That's why I tell a lot of my students. I said, the logic of giving tax breaks to religious organizations is that religion is supposedly a collective public good. It's good if a whole bunch of people are religious. Now, if we disagree with that, then we need to elect politicians who will change the tax code of the United States. Not only the tax code in the United States, also the tax code for state governments, because most state governments also give generous tax breaks to the organizations and educational institution.
N. Rodgers: I was going to say an institution of higher education.
J. Aughenbaugh: Think about, for instance, Richmond.
N. Rodgers: A large portion of land and Richmond is taken up by Virginia Commonwealth University and the University of Richmond. Between the two schools some of the prime real estate in Richmond is taken up by those institutions.
J. Aughenbaugh: That's right.
N. Rodgers: Same with Durham Manduke.
J. Aughenbaugh: Oh, good.
N. Rodgers: Manduke owns quite a bit of really nice real estate. Now, Duke is a private higher education institution, but it's still a 501C3 as far as I'm aware.
J. Aughenbaugh: Yes, it is.
N. Rodgers: You get into all things. But I want to ask you about the popularity of this act.
J. Aughenbaugh: This is utterly fascinating to me, Nia. You want to talk about the popularity within Congress or the popularity of same-sex marriage in the American population?
N. Rodgers: Yes. I want to do the population first. Like what do people think?
J. Aughenbaugh: Listeners, to put this in perspective. When DOMA, the Defense of Marriage Act was passed in the mid-1990s, slightly under 25% of the American public supported gay marriage. Today, in most public opinion polls, support of gay marriage in the United States is between 70 and 71%.
N. Rodgers: That's almost tripling.
J. Aughenbaugh: Yes. Remarkable public opinion changes. Well, at least in our lifetime.
N. Rodgers: Seventy to 71%, if you assume that the country is split more or less evenly with Democrat and Republican?
J. Aughenbaugh: Yes.
N. Rodgers: Then you're talking about crossing political lines.
J. Aughenbaugh: Yes. Support for DOMA does cut across partisan lines.
N. Rodgers: For just a second here. I personally think that some of that has to do with the fact that as more folks have come out as being gay, more people have said, oh, gay people aren't weird, they're my neighbor, they're my kid, they're my friend, they're my whoever.
J. Aughenbaugh: I interact with them at the PTA.
N. Rodgers: Of course, they should have marriage rights. Of course, they should have other rights because they're just regular folk like everybody else. I think some of those things are built on each other. Is the idea that as society opened enough for people to be more comfortable saying they're gay, then more people would say, oh, well, gay people aren't scary. I know gay people, and they're not scary at all, they're just regular folk.
J. Aughenbaugh: It's one of those things to where you don't even say today, I know gay people.
N. Rodgers: Why? I just know people.
J. Aughenbaugh: I just know people.
N. Rodgers: Well, when I was a kid, gay characters on television were always bad or stupid. They weren't just people who just had regular lives. Then now, that's so common that it's not remarked on, and it's not the crux of the joke anymore, the way it used to be.
J. Aughenbaugh: It's not the punchline of really bad, offensive jokes.
N. Rodgers: We've come enormously far just in our lifetime and I'll get my eyes lifetime of recognizing the sheer banality of people regardless of who their romantic interests are. People are boringly the same no matter who they are and who they love.
J. Aughenbaugh: One of the things that I've tried to say to some of my friends at church, and I'm Catholic, so there are people in my congregation where I go to church who still have a problem with same-sex marriage.
N. Rodgers: They fall into between 29 and 30%.
J. Aughenbaugh: They're like Aughie, why don't you have a problem at home just like, do you watch? Do you interact with people who are in marriages who are same-sex couples? I said they go through the same struggles, they want good schools for their kids. They're trying to go ahead and decide whether or not they should take a different job. They struggled with the pandemic just like the rest of us.
N. Rodgers: They had to try to find the down payment for a house. They have to take the car to get the oil change. They do those couple rights.
J. Aughenbaugh: I'm like, I go running with these folks, I play basketball with them, I said, I got to be honest. You know what we talk about? We talk about the fact that we're middle-aged folks who can't run as fast as we used to and we can jump as high as we used to.
N. Rodgers: You probably should have taken a Tylenol before you engaged in any of those things.
J. Aughenbaugh: Yes. Why do you put on your body before you walk her out?
N. Rodgers: But I think that that helps with people saying, I don't understand why we would not give those folks rights. Those folks, they're just us.
J. Aughenbaugh: They're just us.
N. Rodgers: There's no separation in the folks, so as Dally said, everybody should be equally unhappy in marriage.
J. Aughenbaugh: Now, in regards to Congress, let's be very clear, the Respect for Marriage Act was supported primarily by Democrats. Well, what was really noteworthy was nearly a dozen Republican members of the Senate, including very prominently, Mitt Romney supported the law.
N. Rodgers: Which, is interesting because that is not part of his religious faith.
J. Aughenbaugh: Yes, right. Senator Romney is a Mormon. He's been a lifelong Mormon. His family is multi-generations of Mormons. According to the Mormon church's doctrine, same-sex couples is not recognized.
N. Rodgers: Is not recognized. As of this recording, who knows what will change.
J. Aughenbaugh: It could change.
N. Rodgers: Because things do. What's fascinating to me is Pope Francis.
J. Aughenbaugh: Recently came out and said that homosexuality is not criminal. Homosexuals should not be treated like criminals.
N. Rodgers: He didn't say he supported it.
J. Aughenbaugh: No, he didn't say that.
N. Rodgers: He did not go to that length, but he did say it's not criminalizing.
J. Aughenbaugh: He was sending a very clear message to a number of nations that are predominantly Catholic, you guys need to stop putting homosexuals in jail simply because they are homosexuals.
N. Rodgers: Well, and there's a difference in his mind between sin and crime.
J. Aughenbaugh: That's right.
N. Rodgers: That's what he was underlining with his statements, there's a difference between those two.
J. Aughenbaugh: Which is a big, by the way, policy shift for our listeners who are not Catholics. That's a huge policy shift coming from the head of the Catholic Church.
N. Rodgers: That's a couple thousand year shift.
J. Aughenbaugh: He just dropped it in a public speech.
N. Rodgers: He just went kaboom and then he walked away like he might dropped it, which I think you got to admire that. But that part of what I think is interesting is I was saying, our lifetimes, we're talking 25, 30 years here that this change has happened which is remarkable, and when people say there is no hope for the United States to change course, I would point to something like this and say, there is hope, there is hope that we can change course. There is hope that we can say we were doing a thing and it was not a good thing and we stopped doing that thing because it was not a good thing.
J. Aughenbaugh: It's not complete. Let's be very clear.
N. Rodgers: Exactly. It's not perfect.
J. Aughenbaugh: Yeah. Neither Nia or I, think that this is a perfect situation in regards to recognizing same-sex couples. But the fact that the United States Congress responded within a half a year to a concurring opinion.
N. Rodgers: To a potential threat, not a threat. A potential threat.
J. Aughenbaugh: Again, I've been studying United States Supreme Court and its relationship with the other government institutions for basically most of my adult life. This kind of response that happens so quickly it's unheard of, is utterly unheard of.
N. Rodgers: I want to bring up one other point about this law if it's okay with you.
J. Aughenbaugh: Sure.
N. Rodgers: This law is so up Aughie's alley for listeners. It's like a little gift that Congress gave specifically to him. Because he'll say, what part of the Constitution is the authority for this law? Aughie will say to you, all of it, sit down, get a coffee and let's begin.
J. Aughenbaugh: Yeah, relax. Put your feet up.
N. Rodgers: It's not founded in any one thing. It's founded in several things.
J. Aughenbaugh: Yeah. This law touches upon easily four or five different parts of the US Constitution. As we've already discussed, marriage historically is a state right. That would be covered by, what amendment, Nia?
N. Rodgers: Tenth.
J. Aughenbaugh: Yeah. The Tenth Amendment.
N. Rodgers: All things not mentioned herein shall be part of the state except that's what it is.
J. Aughenbaugh: It's reserved to the states.
N. Rodgers: If we can specifically enumerate it, it's a state problem.
J. Aughenbaugh: However, because of what the Supreme Court said in Obergefell, per the 14th Amendment, if the states grant marriage rights to opposite sex couples, they have to do it to same-sex couples. We have a second clause.
N. Rodgers: Because that's equal protection?
J. Aughenbaugh: Equal protection. Now, if the court did do what Clarence Thomas suggested in his concurrence in Dobbs and overturned Obergefell.
N. Rodgers: I have a theory about that.
J. Aughenbaugh: Okay. We'll get to that theory in just a moment. I knew you did, and I wondered when in this podcast episode it would come out.
N. Rodgers: About my secret theory about Justice Thomas.
J. Aughenbaugh: If the court did overturn Obergefell, Congress in passing this law, relied upon which one of its authorities?
N. Rodgers: The one it always relies on because it's the Commerce Clause.
J. Aughenbaugh: It's the Commerce Clause.
N. Rodgers: Going to have a coffee mug, by the way, at some point that says that because the Commerce Clause said so.
J. Aughenbaugh: Okay. For those of you who are like, what does commerce have to do with marriage? Here's the logic. Marriage confers benefits and generates economic activity across state lines.
N. Rodgers: Because married people travel, married people [inaudible], married people do all kinds of things like that.
J. Aughenbaugh: Forcing states to comply with another constitutional provision, the full faith and credit clause, it generates a whole bunch of economic activity across state lines. Now we have, by my count, four clauses, but there's one more. But we have four, the 10th and 14th Amendments, the Commerce Clause, the Full Faith and Credit Clause, and then let us not forget, this law has an exception.
N. Rodgers: For the first amendment.
J. Aughenbaugh: Yes, for the free exercise of religion found in the First Amendment.
N. Rodgers: Right, the state has to recognize these, but religion does not.
J. Aughenbaugh: That's right. Again, a lot of our listeners might be thinking but the 14th Amendment says equal protection under the law. But the 14th Amendment applies to state governments, not private sector actors like businesses or churches, or other non-profits.
N. Rodgers: This law does not circumvent the court's decision in the Bakery case.
J. Aughenbaugh: That's right. The Masterpiece Bakery case, where the Supreme Court said that the state of Colorado showed so much animus towards the bakery that their process was violating the Constitution. Now what's interesting is Colorado went back, changed their process, changed some of the members of their commission that reviews such cases, and they are now forcing the bakery once again to make cakes. That case is working its way up through the lower federal courts as we record this episode.
N. Rodgers: This is exhausting. I don't think the bakery should be made to do that. It's a private business. But I also understand that people would say yes, but they get tax breaks. They get loans from the state, they get all kinds of things like that. If you're going to do that, then you can be discriminatory. Again, it comes back to those questions of forcing people to do a thing. But my argument to that is, if I forced you to bake me goods, would they be any good? Do you know what I mean? My better way of punishing you is to tell every single one of my friends to never buy anything from your bakery again.
J. Aughenbaugh: Yes.
N. Rodgers: To publicize that you are anti-gay, which means no gay people in the state will buy from your bakery. That's my way of punishing you.
J. Aughenbaugh: Engaging in economic boycott.
N. Rodgers: Right. Though with my feet.
J. Aughenbaugh: I'm enough of a capitalist to where if I get bad service at a certain place, I never go back, and I do what you just described.
N. Rodgers: You tell your friends.
J. Aughenbaugh: I tell my friends.
N. Rodgers: I'm not going there. [inaudible]
J. Aughenbaugh: I don't go online and doing it because I don't necessarily want to be the target of a lawsuit for defamation. I know it's just me and my friends. But if enough of my friends join me with my boycott, it can hurt their bottom line. For most business owners, the most effective way to hurt them is their bottom line.
N. Rodgers: We'll see how that works through the courts. Yes, I have this super secret theory which you all cannot see me, but I'm leaning forward.
J. Aughenbaugh: Yes, she is leaning forward.
N. Rodgers: I'm telling Aughie a secret even though we're on Zoom and we're separated by many miles. Here's my theory. My theory is that Justice Thomas is actually for gay marriage, and he put that threat in there hoping that the Congress would react.
N. Rodgers: On the other end of the spectrum from where people think he is. Would that not be Machiavellian?
J. Aughenbaugh: That would be Machiavellian. No doubt about it. I'm not entirely sure I can support your theory, but I do believe Clarence Thomas would not have a problem if the matter of many of these constitutional issues were resolved at the state level. I don't think it would bother Clarence Thomas all that much if, for instance, all 50 states tomorrow went ahead and said that same-sex marriage was legal within those states.
N. Rodgers: He is a purist. He just wants it to be done constitutionally. I'm not entirely certain that he cares what gets done as long as it's in line with his view of how the constitution works.
J. Aughenbaugh: Because if you've read some of his other stuff, his non-judicial stuff, he doesn't give very much weight or credence to most laws that are passed by Caucasians. As a younger man, he was a black nationalist and actually thought that to the extent that the government would allow African Americans to do their own thing because he frequently believes that anytime whites do things that benefit people of color, they're doing it in a very pejorative, condescending manner. He just doesn't want the federal government ordering what he believes should happens at the state and local and at the personal level. But he is a constitutional principle purist, and he believes that congress has limited enumerated powers and everything else should be left to the states.
N. Rodgers: But this is a perfect example.
J. Aughenbaugh: Yes.
N. Rodgers: Of when the court tells you how to do something Congress, you can listen.
J. Aughenbaugh: You can listen.
N. Rodgers: The court does this on a not infrequent basis. It will take a case, and then it will say, if this law, read [inaudible] there'd be no way for us to misinterpret that.
J. Aughenbaugh: That's right.
N. Rodgers: It's too bad the law doesn't say that, hint. Then Congress says, I'm sorry. Were you talking to us? We weren't paying attention. What were you saying?
J. Aughenbaugh: We're so busy arguing with each other, we don't hear anybody else, which is really a shame. I'll give you an example before we can conclude this episode. Nia and I are recording this episode in early March of 2023.
N. Rodgers: You-all will hear it tonight, sorry.
J. Aughenbaugh: But that's all right. There's always a delay. But the week we're recording this episode, the Supreme Court heard oral arguments in the case of President Biden versus the State of Nebraska.
N. Rodgers: Which is, by the way, the student loan case.
J. Aughenbaugh: The student loan forgiveness program case, whether or not President Biden had the legal authority to institute his student loan forgiveness program. Now, if members of Congress were actually listening to the comments made by a large majority of the Supreme Court justices, they would have taken the message that instead of President Biden creating this program unilaterally, that if Congress really wants to give student loan forgiveness to all of these Americans with student loans, Congress should pass a law to do so because a whole bunch of justices, including one of the liberals, Justice Sonia Sotomayor, she even commented, the sheer scope of the loan forgiveness program does suggest that perhaps Congress should be involved. If they were looking for messages or cues from the Supreme Court, all they would have to do is have one of their staffers do a summary of the oral argument, and then go ahead and schedule a committee hearing later this year and say, well, it looks like the Supremes are going to go ahead and do this and this is important to our constituents, so we should probably go ahead and pass a law that does this. But they probably won't. Instead, they'll let the Supreme Court issue a ruling, and if I had to venture a guess just by reading the oral argument transcript, Nia.
N. Rodgers: They will find against Biden.
J. Aughenbaugh: They'll find against Biden and then a whole bunch of Americans who were hoping that at least a percentage of their student loans would be forgiven are going to be stuck with this and Congress, won't do anything. That's really a shame because if this is the problem that the Biden administration says it is and a whole bunch of student advocacy groups and students say that this is a significant problem. Economists say, young people leaving college with all this student loan debt puts them behind.
N. Rodgers: Well, and purely from the congressional point of view of I want to be re-elected, this is a not insignificant number of people vote.
J. Aughenbaugh: Sure, and they're young, and if they start voting for you and your party when they're young, Nia, what do they do.
N. Rodgers: They'll stay with you.
J. Aughenbaugh: That's right.
N. Rodgers: We know that people rarely change parties once they dig in.
J. Aughenbaugh: Party affiliation is still the leading determinant of how a person's going to vote.
N. Rodgers: Even if Congress was just being self-serving by saying, I want to get these voters on my side.
J. Aughenbaugh: Yes.
N. Rodgers: I want to show them that I did this thing. I'm not trying to be ugly about President Biden, but that's what he's trying to do.
J. Aughenbaugh: Sure. That's exactly what he did and he did it right before for the midterm elections last fall.
N. Rodgers: The GOP could run with that too if they wanted to.
J. Aughenbaugh: Sure.
N. Rodgers: Say, look, we're the ones who gave it to you. You should give us your vote. I don't know, the whole thing is not being played very well.
J. Aughenbaugh: No. Again, that's one government institution speaking to another one, if they're willing to listen.
N. Rodgers: Exactly. The Supremes do that not infrequently.
J. Aughenbaugh: Frequently.
N. Rodgers: When you read their opinions, you're like, they're sending a message.
J. Aughenbaugh: Sure they are.
N. Rodgers: Congress is like, [inaudible] . They're just wandering away. Not paying attention.
J. Aughenbaugh: By the way, please forgive us listeners, and I'm going to do this. But that's the thing about discourse. Discourse means.
N. Rodgers: Active listening as well as talking.
J. Aughenbaugh: There are two sides to discourse, but if one side is not listening, it isn't discourse, that's a monologue. But here's an opportunity for the Congress to listen and respond.
N. Rodgers: You know what? The other way they can respond is by passing a law saying we will never under any circumstances forgive a student loan no matter what. That's the other way they could go if they wanted to make sure that this doesn't end up in the courts again and again. Is to say, the President does not have the power to do this or whatever. They're some really we going to have to dig in further on that.
J. Aughenbaugh: But back to this particular law. Listeners, if you get a chance, it will be in the research guide. Take a look at the provisions of this law because again, for Nia and I, it was noteworthy on a number of levels.
N. Rodgers: It's a pretty masterful threading of the question.
J. Aughenbaugh: Yes.
N. Rodgers: As you said earlier, where you had to bring in the more conservative folks by saying, but we won't touch religion.
J. Aughenbaugh: That's right.
N. Rodgers: We won't make this a requirement of faith-based organizations, but we will limit it to government organizations.
J. Aughenbaugh: That's right. We're going to force states to comply with the Full Faith and Credit Clause of the US Constitution. There's a whole bunch of law professors who teach contracts in law school who are like.
N. Rodgers: A new case to talk about.
J. Aughenbaugh: All right, Nia. Great discussion. Thank you.
N. Rodgers: Thank you so much.
J. Aughenbaugh: Yes.
You've been listening to civil discourse brought to you by VCU Libraries. Opinions expressed are solely the speaker's own and do not reflect the views or opinions of VCU or VCU Libraries. Special thanks to the Workshop for technical assistance. Music by Isaak Hopson. Find more information at guides.library.vcu.edu/discourse. As always, no documents were harmed in the making of this podcast.