The New Yorker
by Jeffrey Toobin
December 10, 2013
It’s time for my annual legal year in review—a year in advance. Here’s what we’ll be discussing at the end of 2014.
1. God v. Same-Sex Marriage. The political and legal momentum is very much with supporters of same-sex marriage. Opponents of marriage equality—or, as they call themselves, supporters of traditional marriage—are looking for new arguments, and they’ve fixed on one involving religious liberty. The basic idea is that including gay couples in the definition of marriage discriminates against those who believe only in heterosexual unions. A less extreme version of this argument posits that individuals (and businesses) who oppose same-sex marriage may refuse to do business with gay people. (There’s a case about a wedding photographer who refuses to shoot same-sex weddings.) This tactic is all about taking what conservatives see as the mantle of victimhood away from gays and lesbians.
2. God v. Obamacare. This is a different, and perhaps more successful, version of the same religious-liberty argument. The Affordable Care Act requires insurers to cover birth control at no additional cost to the insured. In a high-profile case before the Supreme Court, the Hobby Lobby chain of stores is demanding to be free of its obligation to cover birth control because of the moral objections of the owners. In a nimble feat of legal jujitsu, the opponents of Obamacare are actually seeking to define some forms of birth control as abortion—which gives employers, they assert, additional reasons to receive exemption from the law. All of which, as ever, leads to …