Author: Linda McClain

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Will Focusing on Men’s Moral Calculus Make Abortion Less “about” Gender?

Decades ago, feminist leader Gloria Steinem quipped that, “if men could get pregnant, abortion would be a sacrament.” As President Trump reinstates restrictions on women’s reproductive rights that the Obama Administration lifted (such as the “global gag rule”), the visual imagery of Trump signing executive orders while surrounded by an audience of white men raises – once again – the question of how gender shapes the abortion issue. In the recent unsuccessful Republican effort to repeal “Obamacare,” when Kansas Senator Pat Roberts was asked whether he supported removing the mandate that insurance companies cover “essential health benefits” such as maternity care, he joked, “I certainly don’t want my mammogram benefits taken away.” Senator Roberts subsequently tweeted an apology, after swift criticism by some Democratic Congresswomen, one of whom quipped that she wouldn’t want to lose her screenings for prostate cancer and another mentioned not only the number of women who die from breast cancer each year. That he could make such a “joke” seemed to suggest that women’s distinctive health needs related to their reproductive capacity were something men simply did not “get.” The male body is still the normal and normative one (as in anatomy classes and medical texts of old), with the female body having those messy, mysterious, and problematic “extras.”

Tempting as this gendered explanation for the precarious state of women’s reproductive rights and for the seemingly endless legislative and executive appetite to pile on more restrictive regulations of women’s constitutional right to decide whether to terminate a pregnancy, it is too simple. For decades, women have been on the proverbial “both sides” of the battle over abortion. A recent illustration was the flare up over whether “pro-life” women’s groups were unfairly excluded from the massive Women’s March on Washington, held in Washington, DC (and supported with “sister” marches across the country) to protest the Trump Administration. At the subsequent March for Life, presidential advisor Kellyanne Conway assured attendees that the Trump Administration stood with them, as did she, as “pro-life,” and as a “wife, a mother, a Catholic, and as a Counselor to the President of the United States.”

Abortion is, nonetheless, “about” gender, as Carol Sanger’s new book, About Abortion, recognizes. For one thing, it is “about” women’s “reproductive bodies” in a way it is not about men’s. As shaped by the U.S. Supreme Court’s decisions, abortion is also, Sanger argues, “about” women’s – rather than men’s – “power” to make a personal decision about “the place of pregnancy and motherhood in their lives at this particular moment in time.” In striking down state efforts to require that a pregnant woman notify or get the consent of her husband, the Supreme Court has invoked the “inescapable biological fact that the state regulation with respect to the fetus will have a far greater impact on the pregnant woman’s bodily integrity than it will on the husband” to explain that the “father’s interest in the fetus’ welfare” cannot be of equal weight to the “mother’s protected liberty.” Sanger does not challenge this “allocation of authority,” which responds “to an intuitive sense of fairness;” but she does argue that “the steady focus on women’s reproductive bodies as the nub of what abortion is about has costs.”

Abortion, in all these ways, then, is about “gender.” As one way to “shake abortion loose from gender’s grip,” Sanger proposes the question: “what would men do if the fate of a pregnancy or an embryo was up to them?” Unlike Steinem’s prediction that men would elevate abortion to be a “sacrament,” Sanger – as I read her – does not pose this question to argue that if men could get pregnant, the right to abortion would be robust and subject to far fewer restrictions, although she hopes the comparison will help to “pull women out from” the grip of such regulations. She instead proposes that “taking women out of the picture” and focusing on how actual men have made decisions about the fate of embryos and fetuses helps us see that “the decisions that people make about becoming parents turn out to be in some ways more generic than gendered.”

In her chapter, “Fathers and Fetusus– What Would Men Do?,” Sanger innovatively examines three contexts in which the Supreme Court’s usual rules that the decision must rest with the pregnant woman does not apply: (1) disputes between a woman and man – typically, in a divorce – concerning “cryogenically frozen embryos” where it is the “male progenitor who wants them destroyed;” (2) surrogacy contracts in which a man seeks to bring a biological child into the world and specifies – in the contract – that the woman who agrees to act as a surrogate will “abort the pregnancy in certain circumstances;” and (3) cases in which a pregnant woman has become brain-dead or comatose and her male partner (the biological father) must decide whether to refuse or withdraw medical care, “understanding that to do so ends the fetus’s life as well.”

This comparison of men’s reasoning in these contexts with women’s reasoning about pregnancy is innovative and informative. It allows Sanger to highlight her “most striking” finding of the degree of overlap between men’s and women’s moral calculus (my term, not Sanger’s) about becoming a parent. Even so, will this creative attempt to show that decision making about becoming a parent is less “gendered” and “more generic” make a theoretical or practice difference? Will men’s moral reasoning make women’s moral reasoning seem more “moral” or “responsible”? If a man offers heartfelt reasons why is he is not ready to be a father, will that be any more persuasive than when such reasons are offered by a woman? In other words: is the moral calculus in a man’s decision about when to become a parent likely to change the mind of someone who believes abortion decisions are primarily made for reasons of “convenience”?

A consistent and troubling feature of public opinion about abortion is (as I observed in The Place of Families(Harvard, 2006)) a gap between the circumstances in which various majorities approve of abortion and the most common reasons that women seek abortion. Can learning more about men’s decision shrink that gap? Over the decades, feminist legal theorists (and here I include myself) and abortion rights advocates have attempted to defend women’s right to reproductive autonomy against the charge that such a right “licenses irresponsibility” and to argue for women’s responsible moral agency. In the context of constitutional litigation, the various “Voices of Women” stress women’s moral reasoning as they confront the concrete circumstances that make a particular pregnancy unwanted. As one such brief filed in Gonzales v. Carhart concluded: “These women rely upon intimate moral, religious, and personal values to make the right decision for themselves and their families.” As James Fleming and I argued in Ordered Liberty (Harvard, 2013):  “empirical studies of women’s decision indicate the centrality of considerations of responsibility and relationship, challenging the depiction of women as ‘lone rights-bearers’ insulated from family and community or as incapable of responsible decisions.” Sanger’s discussion of women’s reasoning resonates with the studies I have read. Indeed, researchers observe striking consistency over time in women’s reported reasons for ending pregnancies. These reasons relate to a women’s sense of responsibility to self and others: concerns to avoid single motherhood or a woman’s relationship problems; financial limitations; obligations to existing children or other dependents (in the case of the many women who were already mothers); and not being ready to be a mother (in the case of a young women still pursuing education or concerned about the impact upon employment).

When Sanger compares women’s moral calculus with that of men deciding the fate of an embryo or fetus, particularly eye-opening are the many vivid quotes from men about why they sought to prevent their partner from implanting frozen embryos or giving them to someone else to do so. In explaining in litigation why they did not wish to become fathers, such men cited “relationship issues, children’s welfare, and the interruption of one’s own life or plans.” As do many women, such men cited relationship problems with the partner who would be the other biological parent, leading them not to wish to have a child with that partner. Men also expressed concern about “the imagined relationship – or nonrelationship – with the future child.” Men’s concern about the gatekeeping role of the mother – in terms of access to the child – does not have a precise parallel, but Sanger finds an analogy between men’s concern about there being a child “out there” with whom they do not have a relationship and a similar concern by pregnant woman that make adoption an unattractive option.

Sanger finds overlap but also difference with respect to financial concerns. Men speak about how an obligation to a new child would have an impact on existing financial obligations or bring unwelcome entanglement with the child’s mother. However, a new child was imagined as economically “disruptive,” rather than “economically catastrophic.” By comparison, studies of women’s decisions show that “financial concerns are paramount” – women frequently say that they cannot afford to have a baby at this time. Sanger recognizes that “post-divorce implantation” disputes typically involve men in a more secure economic position than women facing an unwanted pregnancy. A more informative comparison, were it available, would be what the partners of such women think about becoming a father and what reasons they would give either for supporting or opposing an abortion decision (as I suggest below).

Men expressed concerns about “disruption” of their lives, but as Sanger observes, these narrative are not that close to women’s frequent concerns about how having a child would disrupt education or employment or caretaking responsibilities for existing children. A common reason women give for abortion – particularly, young women – is that they are not “ready” for the responsibility of being a mother. Abortion opponents usually interpret this as a matter of “convenience” or an evasion of responsibility. To my knowledge, women typically don’t talk about a child interrupting their life as a single on the dating and mating scene, as some of the men Sanger quotes do. One man with a rising salary, for example, speaks of wanting to “go out and enjoy himself,” and “be himself and live on his own.” And another distinctive concern without a ready parallel in women’s abortion decisions is a man’s worry that, if the frozen embryo were donated, he would be at risk for “accidental incest” with the future child (!), since he was a “single male who openly has relationships with any woman at or above the age of eighteen.”

In the context of surrogacy contracts, the most typical circumstance in which would-be-fathers specify that the woman acting as a surrogate agree to terminate the pregnancy is fetal disability. Here, Sanger finds a clear parallel in the fact that “over 90 percent of pregnant women who receive a fetal diagnosis for Down syndrome, anencephaly, or spina bifida decide to abort.”

Thus, while Sanger finds some differences in women’s and men’s moral calculus, she also finds that “most of men’s reasons for terminating a pregnancy or destroying an embryo . . .are strikingly similar to the reasons given by women for ending an unwanted pregnancy.” In her words: “Both sexes want to do right by the children they already have and the ones they expect in the future. Recognizing that parenthood is not just a change in parental status but a change in everything, they also want to do right by themselves.” Concluding it is possible to shift from the “gendered” to the “generic,” she adds: “Differences seem to fall less along absolute gender lines than along such markers as situational stability, relationships, support networks, finances, and stamina.”

I am skeptical about whether this shift to men’s moral calculus about parenting will produce a net gain in terms of greater respect for – and less punitive regulation of – women’s right to decide the outcome of a pregnancy. What persuades a judge in a hearing about frozen embryos may not persuade legislatures or “pro-life” activists, who may regard men’s stories as about “convenience,” not “responsibility.” In particular, the narrative of the man who wants to enjoy the single life fits well with the right to life movement’s reminder of the role of the Playboy foundation in supporting abortion rights (a role also noted by Andrea Dworkin in her memorable quip, “Getting laid was at stake.”) Nor is a man’s desire to avoid having a child “out there” likely to persuade those who insist that adoption is the humane alternative to abortion.

Even so, I think this move to look at the broader category of decisionmaking about parenting is promising; it might be fruitful to examine still more contexts in which men make such decisions. Given that (as Sanger observes) the majority of women facing an unwanted pregnancy do speak with their partner, how do those partners view the moral calculus? From time to time, media reports have highlighted how a couple that faced a complication in a pregnancy – such as a diagnosis of fetal disability or an unexpected life circumstance – had to reconcile their initial moral opposition to abortion with their ultimate decision to terminate the pregnancy. As I noted in The Place of Families, often, their parents or other close relatives who disapprove of abortion support this discussion. It might be fruitful to study men’s and women’s reasoning in this “situational morality,” that is, to examine how they refine and sharpen their moral convictions in the crucible of concrete situations requiring judgment. To the extent women seek the counsel of male friends or family members when they face an unplanned or unwanted pregnancy, what sort of advice do such friends or family members give – does it differ from the advice of female friends or relatives? How do men explain their decisions to get a vasectomy? These are a few possible ways to carry further Sanger’s worthy effort to shake abortion loose from the grip of gender.

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On Civic Education, Critical Thinking, and Civic Empowerment: A Response to Catherine Ross

James E. Fleming & Linda C. McClain

We greatly appreciate Catherine Ross’s gracious, thoughtful, and supportive intervention into the conversation between Kent Greenfield and us concerning civic education and what he (not we) called “mandatory patriotism.” She nicely encapsulates our position (as well as hers) and makes cogent criticisms of his view that we would adopt. She is right that we contemplate critical thinking when it comes to the Pledge of Allegiance and Constitution Day just as we do in civic education more generally: that we articulate “a framework that incorporates critical thinking with mindful patriotism in which thinking students can challenge the ideas presented and hold authority figures to the ideals they tout – even where the flag or Constitution ‘is our own.’”

We would like to respond to Ross’s observation concerning our proposal that government should require that homeschooled children should “come into the public schools to learn civics.” In our book, we state: “all children, including homeschooled children, should participate in civic learning in schools.” (144). Ross applauds our proposal “in principle,” but counters that “the real civics lessons in schools are not communicated through formal classes” (although she thinks schools should offer them), “but in the lessons learned by doing and acting – exercising speech rights, debating, and receiving adult guidance about resolving conflicts when schools make the best use of ‘teachable moments.’” While we would not draw such a sharp distinction between classroom learning and “doing and acting,” we agree with Ross about the importance of the entire school environment. Indeed, this is a basic point made in the consensus document that we discuss in Chapter 5 of our book, “The Civic Mission of Schools” (Carnegie Corporation of New York and CIRCLE, 2003). That report states: “in addition to civic education programs, school environments and culture are critical to whether and to what extent young people gain civic skills and attitudes.” Thus, the “most effective programs” are in schools that “infuse a civic mission throughout the curriculum; offer an array of extracurricular activities; and structure the school environment and climate so that students are able to ‘live what they learn’ about civic engagement and democracy.” (“The Civic Mission,”  21). We completely embrace this notion of a civic mission “infusing” schools. However, we made our proposal about homeschooled children coming to school for civic learning in our sketch of how constitutional liberalism would seek to “reconcile the dual authority of parents and children to educate children.” (Ordered Liberty, 139)

In her instructive work on the vital importance of teaching tolerance, Ross has proposed that such teaching could take place in the home but with “materials on tolerance provided by the schools.” We rejected a similar proposal with respect to civic education. One reason was the possibility that homeschooling parents who disagreed with the substantive messages of the curriculum might undermine them. In addition, we expressed concern that: “Even if parents willingly conduct such lessons, homeschooled children will lack the opportunity to hone skills of critical thinking through studying civics in the context of a classroom and, together with other students, working out how ideals and principles apply to particular contemporary problems.” (144) In effect, our reason for requiring children to spend some time in school is so they will have a chance to participate in (as Ross puts it) “lessons learned by doing and acting.”

In closing, we would bring up an aspect of civic education not yet mentioned in this online symposium. Schools, through civic education, can play a role in addressing – as “The Civic Mission of Schools” puts it – the “exceptionally large” gap in the United States between the best- and worst-prepared students in terms of their civic and political knowledge.  Schools can address “troubling inequalities in civic and political engagement,” (14) or what Meira Levinson calls, in her book, No Citizen Left Behind (2012), the “civic empowerment gap” between more advantaged and less advantaged children (based on wealth, race, and whether or not they are native-born or nonnnative-born). In their work on civic education, civic liberals – and other proponents of civic education – should be mindful of this inequality and of the potential for schools to address it.

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Civic Liberalism’s Conception of Patriotism includes Critical Thinking: Response to Maxine Eichner

James E. Fleming & Linda C. McClain

We thank Maxine Eichner for her thoughtful posts concerning Constitution Day, the Pledge of Allegiance, and our book, Ordered Liberty. Before offering some concluding thoughts about our disagreement with her about the Pledge, we want to bring out how close her conception of civic education and of civic virtues in her book, The Supportive State, is to ours. We agree entirely with the content of the “program” she sketches in her post of “what commitments” an “adequate but not excessive civic education” would “seek to foster.” We believe that this type of civic education is consistent with the best contemporary literature on civic education (which we draw upon in Chapter 5 of Ordered Liberty, “Government’s Role in Promoting Civic Virtues”).

Now for the Pledge: Eichner agrees with us in recognizing that observing Constitution Day does not coerce what Kent Greenfield called “mandatory patriotism,” but is fully compatible with encouraging what we called “critical thinking” about the Constitution. But she worries that recitations of the Pledge of Allegiance encourages “uncritical allegiance.” She then gives examples, including support for George W. Bush’s Iraq War and support for laws that “will disenfranchise massive numbers of citizens in the guise of protecting the state from voter fraud.” But the problem in these cases is not uncritical allegiance to our republic but the substance of the views that support these measures. For example, citizens who support “voter fraud” regulations are not saying, we support these laws because we uncritically accept what our leaders tell us; instead, they are saying (wrongly) that there is rampant voter fraud in this country enabling Democrats to steal elections and we have got to put a stop to it! We need to build critical thinking into our conceptions of patriotism and allegiance just as we need to do so into our observance of Constitution Day.

On September 11, 2001 and in the years following, we lived on the Upper West Side of Manhattan, a bastion of liberalism. Our then young daughters attended a public school that began every day with a recitation of the Pledge of Allegiance. That same school also had a curriculum that cultivated critical thinking and aimed at teaching tolerance and respect for difference. Further, one of us (McClain) was on the school’s Diversity Committee and recalls that the Committee’s film series for parents and children selected and showed films about prejudice toward and distrust and vilification of Muslim Americans in the United States in the wake of 9/11 and President George Bush’s “war on terror.” We recall that some Upper West Side liberals criticized the recitation of the Pledge precisely on the ground that Eichner does in her post. One of us (Fleming) vividly recalls having a “Michael Sandel” moment concerning liberals and patriotism: thinking, there they go again, playing right into the conservative arguments that liberals are unpatriotic, that they hate America, that they “blame America first,” and all the rest of it. Like Sandel, Fleming believes that civic liberals need to reclaim patriotism (with critical thinking and critical allegiance) from the conservatives along with civic education and the inculcation of civic virtue. The other of us (McClain) shares this belief, but also believes, in light of the concerns Eichner raises, that it would inform the debate over the Pledge to learn more about the actual impact – if any – it has on school children and on their understanding of patriotism.

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Why the State Can – and Should – Promote Public Values as well as Civic Virtue: A Response to Corey Brettschneider

James E. Fleming & Linda C. McClain

We appreciate that Corey Brettschneider identifies with us as “kindred spirits in the project of developing a liberalism that is both rights protecting and also promotes liberal values.” We also appreciate that he views our book as offering a “powerful challenge” to a “neutralist view” of what a liberal democracy can do to promote its “central values” while also protecting “basic rights.” And we look forward to participating in the upcoming symposium on Concurring Opinions about his book, When the State Speaks, What Should It Say? We are concerned, however, to clear up his evident misunderstandings concerning our book. Thus, when he suggests that his own book has “distinctive features” that “might give us different resources in replying to critics” of the liberal project in which he believes we are “kindred spirits,” he seems to underestimate the resources our own book provides! Namely, he seems to conclude that we view the liberal state’s project as encouraging responsibility and promoting civic virtue, to the exclusion of promoting public values and free and equal citizenship. This is not correct: the fundamental substantive commitment of our Rawlsian constitutional liberalism is to secure the status of free and equal citizenship for all, even though, admittedly, our book’s subtitle is “Rights, Responsibilities, and Virtues.” Read More

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The State of/and Nonmarital Unions

If the blitz of media coverage of the “State of the Union” of President Barack and First Lady Michelle Obama’s marriage may spur more general attention to the state of marriage and of government’s role in promoting it,  then perhaps today’s obituary of Michelle Triola Marvin, famous for her landmark “palimony” suit, in the 1970s, against actor Lee Marvin, might usefully direct attention to nonmarriage  and government’s proper role in nonmarital unions.  Marvin v. Marvin (1976) is a staple of Family Law casebooks and its basic concept of “palimony” — that economic obligations could arise between unmarried partners based on an express or implied contract or on various  equitable grounds — is part of our society’s basic vocabulary of relationships.  But there are many more nonmarital unions in the U.S. (and around the world) today than when Lee and Michelle Marvin lived together. And legal scholars continue to debate how law and policy should approach such unions. Morever, given that about 40% of households with unmarried cohabitants also include children, nonmarital unions  implicate broader concerns about family well-being. The term “fragile families,” for example, is used both by resarchers and by state and federal lawmakers to refer particularly to unmarried, low-income parents and their children.  “Palimony” simply addresses what partners may owe each other when their relationship dissolves. (And, as the various obituaries for Michelle Triola Marvin indicate, utlimately, she did not win any financial judgment against Lee Marvin; contemporary claimants are often unsuccessful, as well.) It does not address the broader question of whether there should be legal regulation of nonmarital unions or whether the government or various nongovernmental actors should bestow any privileges or benefits upon cohabitants by virtue of their status. Why, after all, should an intimate adult relationship have economic consequences? What interest does the state have in nonmarital unions? This is an area in which difficult tensions and questions abound.

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First Marriage

Yesterday, when I went on the Internet on my office computer, the headline was, “State of Their Union,” referring to a sneak preview of a long story in this Sunday’s New York Times Magazine, “The Obama Marriage.” Earlier that day, when I turned on my home computer,  my internet provider listed as one of the top videos of the week  “Michelle Obama’s Love Tips.” Intrigued, I clicked on the site, which took me to a segment on E!News, with a story on “The First Lady sounds off on finding love” in the December issue of Glamour magazine.  Suddenly, we are awash not just in the usual glamorous photos of the First Couple, but also in stories of the First Marriage.  Since marriage promotion happens to be the next topic in my Family Law course,  and is a topic in which I have more than a passing interest, I thought I would write here about this very public marriage and how it might relate, if at all, to the federal government’s campaign of promoting healthy marriage (which, at the moment, due to DOMA, excludes same-sex couples from its purview) and to the more general question of marriage and gender relations. Read More

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Civil Marriage Equality in the District of Columbia?

During my guest stint on Concurring Opinions, I plan to take a look at several  law and policy issues that were key parts of President Obama’s agenda during his campaign and see where matters stand, as we near the one year date since his historic election.  One such issue is civil rights — as a candidate, Barack Obama  supported full civil unions and federal rights for LGBT couples. Already, the landscape across the United States in late 2009 looks quite different from late 2008, as state legislatures enact and expand domestic partnership laws and some states move  (sometimes spurred by a judicial ruling,  but sometimes on the initiative of the legislature) from civil unions or domestic partnerships to civil marriage. Yesterday, District of Columbia  City  Council member David Catania, with the support of nine other Council members, introduced a bill to extend civil marriage to same-sexcouples. Media reports about the bill indicate that some members of Congress may try to prevent the bill from becoming a law when Congress exercises its review power. However, other members of Congress indicate that with all that is on Congress’s plate, it is unlikely members would press for a joint resolution  to block the law and, further, the District should be allowed to decide for itself. 

In any case, for the law to be blocked, President Obama would have to sign the joint resolution. Will he do so Although President Obama has stated his personal opposition to same-sex marriage, apparently based on his religious understanding of what marriage is, he has also stated, on the subject of civil rights for LGBT persons,  that America should live up to its “founding promise of equality by treating all its citizens with dignity and respect.” He has said that states should be left free to decide on their own how best to pursue equality for same-sex couples, whether through a domestic partnership, a civil union, or a civil marriage. D.C. initially adopted the strategy of domestic partnership, and expanded the benefits and obligations linked to that status more than once. Now, the City Council will likely approve Catania’s bill, which offers same-sex couples equal access to civil marriage. Domestic partners may elect to retain that status or convert their relationsip to a civil marriage. No new domestic partnerships will be issued. Since the District of Columbia has chosen this strategy of civil marriage, it seems unlikely as well as inconsistent with President Obama’s prior positions on the issue that he would support Congress thwarting the democratic process.

Of course, as has happened in the various states where legislatures have introduced similar legislation, opponents argue that “the people”” should be allowed to decide for themselves. In D.C., this could take the form of a referendum. People used to argue that countermajoritarian courts should not be allowed to foist a new definition of marriage on citizens, and that such matter were for democratically-elected bodies. Now the argument is that lawmaking bodies should not force new definitions of marriage on the people, who should have a say in the matter.

A striking feature of the D.C. bill is that it follows the path of legislation in the New England states that recently opened up civil marriage — a two-pronged focus on equal access to civil marriage, on the one hand, and protecting religious freedom, on the other.  Indeed, Catania’s proposed act is entitled: “Religious Freedom and Civil Marriage Equality Amendment Act of 2009.” This approach clarifies that  civil and religious marriage are distinct, and allowing the former does not force the latter. Undeniably, religious and civil marriage have been and remain intertwined in U.S. family law,  evident from the simple fact that religious oficials may perform a marriage ceremony that, if licensing requirements are met, will have civil effects. But the distinction between civil and religious marriage is important to understanding why access to civil marriage is just and fair as a matter of basic equality or even, as one Council member said, human rights: civil marriage is the gateway to an enormous set of benefits and obligations, access to this basic institution also has symbolic importance. Whether this framing will appease religious opponents of the law remains to be seen. But having this play out in the Nation’s capitol certainly invites the President’s attention to how dramatically the landscape has changed and understandings of equality have evolved in less than one year.