Increasingly Indefensible

by Stephen H. Miller on August 27, 2014

From Gay City News, on this week’s U.S. Seventh Circuit Court of Appeals hearing on same-sex marriage bans:

One suspects, however, that [Indiana Solicitor General Thomas M. Fisher and Wisconsin Assistant Attorney General Timothy C. Samuelson ] did not count on getting the sort of tough cross-examination they got from Richard Posner, the most senior member of the panel who was appointed to the court by Ronald Reagan in 1981.

Posner, a father of a school of legal analysis known as the law-and-economics movement and a devoted empiricist, actually mocked the arguments he was getting from the state attorneys, though observers following the trend of marriage equality decisions over the past year might have predicted this result in light of his record of relentlessly pursuing facts and logic in his decisions. Referring to data showing that about 250,000 children nationwide are living with gay adoptive parents—about 3,000 of them in Indiana, he noted—Posner pressed Fisher to explain why Indiana would deny those children the same rights and security of having married parents that are accorded to the adopted children of married couples. The Indiana solicitor general could give him no real answer.

The report concludes: “The Seventh Circuit seems clearly poised to join the Fourth and the 10th in ruling for marriage equality.”

More. Slate has audio excerpts.

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On Campus, Absence of Due Process Extended to Gays

by Stephen H. Miller on August 23, 2014

Rape and lesser incidents of sexual misconduct on college campus must not be tolerated, but false accusations without due process for the accused, often leading to sanctions or being expelled and a public record that can’t be challenged, are not justice. That’s been true of male-female student relationships on campus (where charges often follow sex that occurred while both individuals were inebriated or stoned), and now it’s been extended to gays, as the Washington Post reports about a case at Brandeis.

The charges here, however, involve a couple that dated for two years and, after the breakup, one accused the other of violations such as staring too much at him while he was undressed in the bathroom, and kissing him while he was asleep and thus unable to consent (did I mention this was a two-year relationship)?

The accused, who was not entitled to legal counsel, was sanctioned by university officials but not expelled. But “he is incensed that his life was turned upside down with what he believes was flagrant disregard for his due-process rights. And he worries about how the sanctions might affect his future.” The accuser “is outraged that the university did not expel his ex-boyfriend.”

The Post reports:

The current and former college students describe themselves as victims of false accusations amid a national campaign — led by the White House — to stamp out sexual violence on campuses. While the federal push to increase awareness of sexual assault is aimed at keeping students safe and holding the nation’s colleges and universities accountable, some of the accused say the pressure on their schools has led to an unfair tipping of the scales against them.

Maybe these incidents should be left to the judicial system when there is evidence of an actual crime. Otherwise, students should learn they are expected to take responsibility for their actions, including bad relationship decisions and morning-after regrets.

More. “Wink” comments:

So many microaggressions! This article should have had a trigger warning. I feel violated and plan to sue.

Furthermore. From Philadelphia Magazine: “The battle over what constitutes sexual assault on college campuses is reaching new levels of absurdity.” You think? But don’t try to tell that to Sen. Claire McCaskill.

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Politics Replaces Spirituality in the Left’s Playbook

by Stephen H. Miller on August 21, 2014

James Kirchick writes for The Tablet about how Congregation Beit Simchat Torah in NYC, the prestigious LGBT synagogue, is now run by a virulently anti-Israel faction that has brought a large number of straight anti-Zionists (mainly left-feminists) into the congregation. This has occurred under the leadership of Rabbi Sharon Kleinbaum who, along with her partner, American Federation of Teachers president Randi Weingarten, make up a formidable leftwing power couple. As one departing member put it, Kleinbaum is “essentially delivering Hamas propaganda” from the pulpit. That’s deeply depressing but the answer is for those of good will to form their own gay congregation that does not preach the left’s dogma of Israel hatred. And the sooner the better.

Back in the ’80s, in the pre-Kleinbaum era, I attended a service at Beit Simchat Torah. It was deeply moving and spiritually uplifting. How sad that this is no longer true.

More. “Alvie” comments:

Bringing in a large number of straight anti-Zionists from NYC’s leftwing feminist community falls under the typical pattern of subverting institutions in order to take them over and redirect them to serve the “progressive” cause. The Presbyterian church is experiencing something very similar — a majority of Presbyterians are not anti-Israel, but its leadership council is now run by anti-Zionists who support a boycott of the Jewish state (but not of the anti-gay Islamic dictatorships that target Israel, natch).

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Gay Marriage and Freedom of Association

by Stephen H. Miller on August 20, 2014

Via Reason: Libertarians, Gay Marriage, and Freedom of Association. It’s subtitled, “How the same right allows for both same-sex marriage recognition and refusing to sell gay couples wedding cakes.”

Progressives and conservatives won’t get it.

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Social Conservatives Feeling Left Out

by Stephen H. Miller on August 16, 2014

You’d never guess it from the liberal media/blogosphere echo chamber, but social conservatives increasingly feel alienated from the GOP as the party distances itself from culture war issues (at least outside of Texas and the fervid mind of Michele Bachmann). As the Washington Post reports:

Many social conservatives say they feel politically isolated as the country seems to be hurtling to the left, with marijuana now legal in Colorado and gay marriage gaining ground across the nation. They feel out of place in a GOP increasingly dominated by tea party activists and libertarians who prefer to focus on taxes and the role of government and often disagree with social conservatives on drugs or gay rights. …

The disconnect between social conservatives and the GOP has become a “chasm,” said Gary Bauer, who ran for the Republican presidential nomination in 2000 and is now head of the Campaign for Working Families. …“Values voters have been treated as the stepchildren of the family, while the party has wanted to get on with so-called more electorally popular ideas,” Bauer said.

Interestingly, the paper notes the antipathy social conservatives feel toward tea party activists (whose concerns focus on over-reaching government). If all you read are progressive diatribes, you would necessarily think “tea party” and “social conservatives” are one and the same.

More. Maryland’s gubernatorial race is a case in point:

Republican Maryland gubernatorial candidate Larry Hogan on Friday said his position on marriage rights for same-sex couples has “evolved.”… Hogan said marriage rights for same-sex couples, extending in-state tuition to undocumented immigrants and other social issues “are really decided in Maryland.”

“They have no part in this campaign whatsoever,” he said. “We’ve been completely focused on the issues that all Marylanders are focused on right now, and that’s economic issues.”

Furthermore: Cuyahoga County Republicans welcome Gay Games to Cleveland. As I’ve previously noted, it was reported that the Texas GOP’s rearguard anti-gay antics were a factor in costing Dallas the 2016 GOP convention, which is going instead to gay-welcoming Cleveland.

Relatedly.Via David Lampo at the Daily Caller: Why Republicans Should Pray The Supreme Court Legalizes Gay Marriage:

In short, all but the true believers realize the war has been lost. Unfortunately, those true believers are still the loudest voices in the Republican Party, the ones who write its platform and set its agenda. With them as the face of the party, 2016 presidential candidates who want to grow the party and expand its reach (think Rand Paul or Paul Ryan) will have a very difficult time doing so.

Yes indeed.

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More Iranian Horrors

by Stephen H. Miller on August 14, 2014

While world attention is focused on the Middle East, we shouldn’t forget that in Iran and elsewhere being gay is a capital offense. Via the Daily Beast:

The tragic hanging of two “sodomites” in Iran may seem, in theory, like an obvious cause for U.S. concern and U.S. action. … Yet in practice, those most attentive to LGBT concerns may be the least eager to pick this fight.”

There are some interesting political double shuffles going on as well. The article notes:

When Iran persecutes gay people, conservatives in the United States suddenly become enamored of gay rights—and bash the Obama administration for not doing enough to defend them.

But certain liberal bedrocks, fearing the appearance of hawkishness, have kept mum or worse. Some observations (from earlier this year) on the matter, from Legal Insurrection.

Israel, of course, remains the only Middle Eastern state where gays can live their lives freely.

More. And here at home: Sanitizing terror: Has the press distorted Islamic radical’s crusade against gay men? Clearly so.

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Baker Implodes

by David Link on August 7, 2014

It’s easy to second-guess the arguments lawyers make in high profile cases, and while that’s pretty much what I will be doing, I want to make clear that the arguments made in favor of marriage equality at the U.S. Sixth Circuit Court of Appeals this week were very good.

But an important colloquy could have gone better, in my opinion, and since we haven’t heard the last of it (there are many, many more cases still pending), I wanted to add my own thoughts about how to think about the question.

It was about a case I’ve mentioned before. Mark Joseph Stern at Slate describes what happened, focusing on the swing justice at the Sixth Circuit,  Jeffrey Sutton:

In a 1972 case called Baker v. Nelson, the Supreme Court dismissed a challenge to Minnesota’s gay marriage ban “for want of a substantial federal question”—that is to say, the court didn’t see a constitutional flaw in the ban. The case was decided through a summary affirmance of a lower court ruling, meaning the justices didn’t hear arguments or write a real opinion. But a summary affirmance is generally considered to be binding precedent on lower courts

You might think that Justice Anthony Kennedy would confront Baker—the only Supreme Court precedent to deal directly with the merits of state gay marriage bans—when he overturned DOMA. But instead, he ignored it, perhaps in an effort to leave the whole question of state-level bans for another day. Every district court that has since struck down these bans worked around Baker by citing a somewhat ambiguous loophole: A summary affirmance might not be controlling precedent when it has since been undermined by “doctrinal developments.”

The question for Sutton, then, is simple: Does the trio of great gay rights cases (Romer, Lawrence, and Windsor) render Baker’s holding completely moot? Or does Baker remain binding precedent? Sutton seemed to lean toward keeping Baker on life support for now and letting the Supreme Court pull the plug, noting, “Even when you see one line of cases crumbling, lower courts aren’t allowed to infer, and anticipatorily overrule, this other line of cases. So as a matter of hierarchy, aren’t we stuck with Baker?”

But then Sutton seemed to walk back his statement, musing that “the legal reasoning in other cases”—Romer, Lawrence, and especially Windsor—were “totally inconsistent with Baker.” At the end of his colloquy on the topic, he seemed a little stumped, and more than a little frustrated.

Judge Sutton had a sound legal argument for following Baker, but he was missing the forest for the trees because, at exactly that moment, the U.S. Court of Appeals for the Sixth Circuit was hearing appeals in six cases from four states.

In 1973, it was possible for the highest court in the land to say that they could not see a federal question in a case where two men were denied the right to marry one another. In contrast, whatever else can be said in 2014, there is no doubt at all that there is a very prominent federal question about that subject. If there were not, then what on God’s earth was the Sixth Circuit doing? Not a single one of the challenges to state bans on same-sex marriage have been filed and left to gather dust. Serious lawyers with serious clients have answered every one of those complaints. While it is possible to debate the merits of their arguments, they are making serious arguments about something even they view as a serious question.

Stated another way, Baker is incompatible with the very fact that these cases are now before the courts. Of course there is a federal question today. Whatever else can be said about the presidential value of summary affirmances in general, the premise of the affirmance in Baker was based on premises about sexual orientation that have no continuing validity at all.

Judge Sutton could ultimately decide that Baker has not been overturned by the U.S. Supreme Court. As Dale Carpenter points out, that would actually be the least harmful loss for us, since it would require only about a paragraph of text in the Sixth Circuit opinion (about as much as the Supreme Court devoted to the Baker affirmance). The opinion would not need to go any further than saying “We are bound by Baker unless and until the Supreme Court overturns it.”

But that is to ignore what is right in front of the court’s nose. Something much more consequential than the Supreme Court has overtaken, if not overturned Baker. What was unimaginable to the courts then is common discourse now. Every court that has heard the argument over same-sex marriage knows for a fact that Baker v Nelson is a nullity.

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Bear Bar Targeted for Discrimination

by Stephen H. Miller on August 7, 2014

Via Reason:

A Denver [gay bar catering to Bears] has been cited by the state’s Division of Civil Rights for discrimination because it refused to let a gay man dressed in drag enter. …

You know what gay people love? Having the government tell them how their various subcultures work and think on the basis of talking to a bunch of people at a bar and looking at pictures. … And to the extent that there are social rifts between various parts of the gay demographic, nobody should want the state government policing how they should be interacting with each other.

The report concludes:

This case is a good demonstration as to why it’s so important to hold a hard line on the right to freedom of association. The Wrangler should have the right to pursue whatever customer demographic it wants for its bar.

Agreed.

More. “Alvie” comments, perceptively:

The most sought-after clubs in NYC and other big cities have a guy outside who selects who gets past the rope and is allowed to enter, based on how they’re dressed and how they look. The only reason this jerk can sue the Wrangler is because he’s claiming sexual orientation/gender identity discrimination, which is a protected class under local statute. But as the story notes, he’s not actually transgendered—just a jerk who wants to sue and use the state to make others do his bidding.

Yes, these laws can be and are abused.

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Social Issues Play to Democrats’ Strength

by Stephen H. Miller on August 5, 2014

Many Democratic candidates “aim to match President Obama’s feat in 2012, when the incumbent used topics such as same-sex marriage and contraception as weapons to offset his vulnerability on the economy,” reports the New York Times, adding:

Democrats profit politically — among young voters, college graduates, single women, blacks and Latinos — from the sense that they welcome these cultural shifts while Republicans resist them.

“That’s why people are voting for us these days — not for our economic prowess,” said Mark Mellman, a Democratic pollster.

Indeed.

This, however, is encouraging:

The pro-gay marriage group Freedom to Marry will hold a series of meetings in Iowa this week aimed at encouraging young Republicans to run for slots as delegates to the national 2016 convention to try to impact the party platform. …

“We want for the presidential process in 2016 [that gay marriage will] be an issue nationally that Republicans are debating,” said Tyler Deaton, the campaign manager for the Young Conservatives for the Freedom to Marry effort. He added, “Our intention is to bring a record number of young delegates to the convention … and make some history.”

Good luck to them.

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So ‘Rad’

by Stephen H. Miller on August 3, 2014

In the Aug. 4 issue of The New Yorker, Michelle Goldberg provides a fascinating look at a subset of radical feminists, the self-described “radfems,” who are regarded by other feminists and transpeople as TERFs (which stands for “trans-exclusionary radical feminists”).

The radfems bar transwomen from their events (including the Michigan Womyn’s Music Festival) and seek to exclude them from womens’ spaces, including restrooms and lockerrooms. Worse, the radfems point to certain ex-trans (or “detransitioners”) who once identified as transgender but no longer do, as evidence that transgenderism isn’t about intrinsic gender identity but is a further manifestation of male privilege.

For instance, Goldberg cites radfem theorist Sheila Jeffreys who:

calls detransitioners…“survivors,” and cites them as evidence that transgenderism isn’t immutable and thus doesn’t warrant radical medical intervention. (She considers gender-reassignment surgery a form of mutilation.) “The phenomenon of regret undermines the idea that there exists a particular kind of person who is genuinely and essentially transgender and can be identified accurately by psychiatrists,” she writes. “It is radically destabilising to the transgender project.” …

Explaining female-to-male transition is fairly easy for her (and for other radical feminists): women seek to become men in order to raise their status in a sexist system. Heath Atom Russell, for example, is quoted as attributing her former desire to become a man to the absence of a “proud woman loving culture.”

But, if that’s true, why would men demote themselves to womanhood? For reasons of sexual fetishism, Jeffreys says. She substantiates her argument with the highly controversial theories of Ray Blanchard, a retired professor of psychiatry at the University of Toronto, and the related work of J. Michael Bailey, a psychology professor at Northwestern University.

The radfems view of being transgendered seems eerily similar to what social conservatives believe about homosexuality—it’s an unhealthy deviation that people should be steered away from and not an intrinsic aspect of who someone is.

I don’t know what to make of this, and perhaps author Goldberg doesn’t either. But it’s evidence of how those who take a militant stance on behalf of remaking society beyond oppression often, on inspection, are revealed to have their own deep-rooted prejudices. That’s a good lesson to remember.

On the other hand, organizing to deny the radfems the right to hold their own meetings and events by threatening to boycott commercial venues also seems intolerant on the part of trans activists. What’s needed are dialogue and efforts at education and understanding, not attempts at suppression coming from both camps.

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