An Overreaction to an Overreaction

The Indiana Religious Freedom Restoration Act is slightly broader than the federal RFRA, which some circuits have limited to apply only to federal laws (Josh Blackman provides a legal analysis here; CNN also has a balanced overview).

Indiana’s measure would, apparently, allow bakers and photographers to assert in their defense, if they find themselves in court being sued, a right to religious conscience—although it’s by no means an automatic “get out of baking a cake” card. Blackman concludes:

I should stress–and this point was totally lost in the Indiana debate–that RFRA does not provide immunity. It only allows a defendant to raise a defense, which a finder of fact must consider, like any other defense that can be raised under Title VII or the ADA. RFRA is *not* a blank check to discriminate.

According to CNN Legal Analyst Jeffrey Toobin, it’s likely that a refusal to serve a gay person wouldn’t stand under the law, but a refusal to provide a service for a gay wedding would.

In fact, Indiana is the 20th state to adopt a “religious freedom restoration” law, and they have not opened the floodgates to anti-LGBT discrimination.

Indiana doesn’t have a statewide LGBT nondiscrimination law, although some of its cities do. So it’s not the grand compromise we saw in Utah. It is, arguably, an overreaction to an overreaction (the idea that it advances the progressive cause to find small business providers with religious-based objections and force them to provide expressive services to same-sex weddings or face prosecution because now it’s our turn and serves ‘em right). But hey, never let an opportunity for lucrative political hysteria go untapped.

More. Yes, you can be a supporter for LGBT rights, same-sex marriage, and religious freedom. What you can’t be is an authoritarian statist and a defender of liberty.

No over-reaction by progressives and LGBT activists? Via the Washington Post: 19 states that have ‘religious freedom’ laws like Indiana’s that no one is boycotting.

Furthermore. Via Instapundit Glenn Reynolds:

Here’s the deal: (1) Indiana has gone from a swing state to a red state, so it’s fair game; and (2) Dems need something to agitate the base so it doesn’t pay attention to Iranian nukes, trashed email servers, and an overall culture of corruption. Those who join in are willing enablers.

Sounds about right. I’d add that with the fight for the freedom to marry just about won (assuming the Supreme Court does the right thing), activists are in dire need of new targets for their fundraising machines, and turning the tables on religious traditionalists is just the ticket.

Cato Institute Senior Fellow Michael Tanner blogs:

So, as a strong supporter of marriage equality and someone opposed to bigotry in all its forms, but also as a supporter of property rights and the freedom to associate (or not associate), how do I feel about Indiana’s new religious freedom law? The truth, not surprisingly, is that I’m somewhat torn. …

In the end, I think much of the commentary around Indiana’s law has been overly hysterical. That said, I would have voted “no.”

And another interesting post from the blog Bleeding Heart Libertarians. I’m not endorsing all the ideas in any of these posts, but they are examples of level-headed commentary of the kind you get outside the lockstep authoritarians of left and right.

Also, I like this comment left at Instapundit: “If I read this correctly, it has the effect of making [same-sex] weddings slightly less complicated. A wedding means fifty things to do, half of which are surprises. It’s a lot of stress. Now, because it would be useless, it is no longer necessary to spend time and effort prospecting for the most devout Christian baker or florist in a hundred miles. Saves that, anyway.” Indeed, one less thing.

Gay Executions and American Diplomacy

Log Cabin Republicans have taken out a full page ad in Roll Call criticizing the Iran nuclear negotiations, reports the Washington Blade. The ad states: “Right now Iran is executing gay people and people merely suspected of being gay,” and that “Human rights can’t be ignored in these negotiations.”

Despite belittling by LGBT team Obama, raising human rights issues has a long history when negotiating with despots. For instance, Jewish American groups successfully advocated that U.S. diplomats address the repression of Soviet Jews during cold war negotiations with the Soviet Union.

While it’s undoubtedly true that the Log Cabin Republicans wouldn’t have run such as ad with a GOP president, it’s also true that LGBT Democrats won’t make an issue of this with a Democrat in the White House. Partisan? Sure. But also a matter that should be receiving far more attention than it is.

More. Missing in action: American feminists, whose remain overwhelmingly silent on Iran’s repression of women. Related: why Ayaan Hirsi Ali is not a feminist hero.

The College-Based Anti-Free-Speech Movement

We are witnessing the rise of a generation of authoritarian student activists who define ideas they disagree with as “violence” that must be suppressed, distorting federal civil rights statutes (with the complicitness of like-minded enforcement bureaucrats) to pressure university administrators to capitulate. Sad but not unexpected to see some college LGBT activists are part of the Zeitgeist.

Similarly, via Reason:

Also recently, the student government at The George Washington University approved a measure requiring student leaders to attend LGBT sensitivity training regarding, inter alia, “using proper gender pronouns.” A conservative student group, the Young America’s Foundation chapter at GW, declined to go along. YAF treats everyone with respect, said representative Amanda Robbins, and doesn’t need to be lectured on how to do so.

You can imagine how well that went over. The campus LGBT group, Allied in Pride, responded that YAF’s “refusal to use preferred gender pronouns should be considered an act of violence.”

More. Made up? From Allied for Pride’s facebook page:

If GW YAF refuses to participate in safe zone trainings that are aimed at increasing safety and understanding, then they should be considered a hate group, and thereby, be revoked of all funding from the Student Association at The George Washington University (SA). . . . And their refusal to use preferred gender pronouns should be considered an act of violence and a violation of the non-discrimination clause required in all GW student organizations’ Constitutions.

Furthermore Reminiscent of when Dan Savage engaged in “hate speech” at the University of Chicago.

And still more. Not a joke: “UK students union passes policy banning gay white men from acting like black women.” And this lunacy is being advocated on U.S. campuses as well.

Turning Point: Americans Would Rather Vote for a President Who Supports Marriage Equality

According to a new poll from the liberal Huffington Post and YouGov, “Support for gay marriage has become the majority opinion, and voters now also say they’re more likely to reject a presidential candidate opposed to gay marriage than one who backs it—something gay marriage advocates hope marks a political tipping point for 2016.”

About 20 percent of voters overall who say opposition to gay marriage is a deal-breaker, while about 15 percent say supporting it is.

Most Democrats favor a presidential candidate who supports marriage equality (54 percent). Significantly, however, more Republicans voters say a candidate’s opinion on same-sex marriage doesn’t matter or they’re not sure (47 percent) than those who favor an anti-gay marriage candidate (41 percent), while 12 percent of Republicans would favor a candidate who supports the freedom to marry. If true, this shows progress occurring in both parties.

Some may have assumed that more than 54 percent of Democrats would favor a candidate supporting gay marriage (they are the “progressive” liberal party, aren’t they?). I assume a greater percentage of opposition to marriage equality is still among African Americans, who as a bloc have lagged behind the rest of the party, according to separate polling, although these numbers show signs of shifting in a positive direction as well.

As for voters who identify as independents, the HuffPost/YouGov poll shows that they “tend to line up more closely with Democrats in their opinions of gay marriage, saying by an 8-point margin that they’d prefer a candidate to support than to oppose gay marriage. Those who’d prefer a gay marriage supporter, though, are less likely than their Democratic peers to say the issue would be a deal-breaker.”

Daniel Cox, the research director at the nonpartisan Public Religion Research Institute, observed: “I don’t think you’re going to see a single Republican come out in support of same-sex marriage, but you may see some downplaying it in preparation for facing a general electorate, which is by and large supportive of the issue.” I think that’s right.

Interestingly, YouGov polling in Britain now shows that throughout the UK “those people who thought homosexuality ‘morally wrong’ sat at around 15 percent,” but that “in London the number of people who said they thought homosexuality is immoral was almost double (29 percent) what it was in the rest of the country.” Turns out “diversity” and liberalism (in its true sense) don’t always go hand in hand. (Sorry, this isn’t “racist,” anti-immigrant or anti-Islam; it’s what the poll numbers show.)

More. Ted Cruz is announcing his presidential run at the Jerry Falwell founded Liberty University. His platform includes amending the U.S. Constitution to nullify court rulings on the constitutionality of unequal marriage laws. Cruz, it appears, is partying like it’s 2004. Beyond the insular Iowa caucuses, we’ll see how well that strategy plays out now.

Furthermore. David Boaz, author of The Libertarian Mind: A Manifesto for Freedom, tells Bloomberg Politics:: “Cruz is announcing at the Vatican of fundamentalism. That doesn’t seem like the path to a winning coalition, even within the GOP.”

Maybe he’s trying to be the new William Jennings Bryan.

To Buy or Not to Buy

As the Washington blade reports:

Elton John is among those who support a boycott of gay fashion designers Domenico Dolce and Stefano Gabbana’s label over their controversial comments about children conceived through in vitro fertilization. “You are born and you have a father and a mother, or at least it should be so,” said Dolce during an interview that Panorama, an Italian website, featured in its March 12 issue. “You cannot convince me of what I call children of chemistry, and synthetic children: Wombs for rent, seeds selected from a catalog.” …

“How dare you refer to my beautiful children as ‘synthetic,’” wrote John, using the hashtag #BoycottDolceGabbana. “And shame on you for wagging your judgmental little fingers at IVF—a miracle that has allowed legions of loving people, both straight and gay…

I have no issue with anyone publicly stating they won’t be purchasing products or services because they find the expressed views of the business owners insulting or bigoted, or when (apparently not the case with Dolce & Gabbana) the profits of the business are being used to support efforts that are viewed with disdain. Your money, your choice.

By the same token, those who think the personal or political views of business owners should not be a factor in purchasing decisions have that right as well. As Gabbana responded to John’s boycott, “You preach understanding, tolerance and they you attack others? Only because someone has a different opinion?”

Boycotts of this kind become problematic when government gets involved, as when liberal local officials threatened to zone out Chick fil A franchises because the owning family funded groups opposing same-sex marriage (the company says it no longer contributes to anti-gay marriage groups).

The decision to purchase or not purchase is an individual one. Efforts to press companies to change their support or opposition to political causes (that is, boycott organizing) is part of social pressure and lobbying that takes place in civil society. Dolce and Gabbana have rights to express their views, and Elton John and Ricky Martin can take exception and urge consumers to boycott the company. Some will see that as another kind of intolerance, and others will view it as appropriate.

Efforts to outlaw political speech deemed offensive, or to use the power of the state to punish those who exercise their legal rights to engage in the political process, is where we should always draw the line.

On the Religion Front

The United Methodist Church is facing a possible schism between those who support and oppose same-sex marriage, the Washington Post reports. One issue:

like much of Christianity, its growth today is in the developing world—particularly in Africa and the Philippines, where United Methodists tend to vote against gay equality.

A similar problem bedevils the Anglican Communion, although the U.S. Episcopal Church has the independence to be inclusive on its own, with a small number of congregations that have chosen to perpetuate traditional discrimination breaking away so as to align with African Anglican churches that prefer hate to the gospel of love.

Meanwhile, U.S. Reform Jewish rabbis have just installed their first openly lesbian leader. Orthodox Jewish congregations remain opposed to ordaining gay rabbis and marrying same-sex couples.

Religious denominations are and should be at liberty to pursue whatever principles of faith they like, even when their tenets collide with government policy or increasingly common views of what is right and just. Things get dicey when government gets entwined with the practice of faith, as when ordering religiously affiliated organizations to pay for abortifacient drugs, or not to discriminate in hiring against gay people.

Another interesting entanglement: should military chaplains from religiously traditionalist churches be stopped from telling service members their denomination’s views against homosexuality?

If the government is going to have military chaplains, I don’t think they should be censored. Also, I’m told service members are given access to a wide variety of chaplains at military bases, both Christian and non-Christian, and from conservative evangelicals to the more liberal protestant churches. Still, this shows how government entanglement with religious faiths can work to the detriment of both.

More. Obviously, in combat situations, there is not a choice among chaplains. And yes, chaplains can take part in nondenominational or cross-denominational services and counseling as well as ministering to service members who share their faith, depending on the circumstances. This particular instance, resulting in the chaplain facing the threat of dismissal, seems to have involved conversations in which a soldier asked the chaplain about his views and those of his church.

Update. Presbyterian Church (U.S.A.) recognizes same-sex marriage:

Pastors—traditionally known as “teaching elders”—have already been allowed to perform same-sex marriages in states where they’re legal since last June. The new amendment leaves the discretion of whether to conduct such ceremonies with individual ministers.

“There is nothing in the amendment to compel any teaching elder to conduct a wedding against his or her judgment,” the Rev. Gradye Parsons, the church’s stated clerk, or top ecclesiastical official, said Tuesday.

Seems like a reasonable step forward that allows same-sex couples to marry within the denomination while also respecting the rights of clergy who are not yet onboard.

The church earlier eliminated barriers for ordaining gays, reports USA Today, which says “The denomination is now the largest Protestant group to recognize same-sex marriage as Christian.”

More. The National Black Church Initiative, a coalition of 34,000 churches comprised of 15 denominations and 15.7 million African-Americans, has broken its fellowship with Presbyterian Church USA following its recent vote to approve same-sex marriage. How hatefully homophobic are some of these African-American churches? Take a look.

Frank’s Win-Lose Is a Win-Win.

Following on my previous post addressing former Congressman Barney Frank’s new memoir, let’s turn to Frank’s view of how America has both progressed and regressed. From the New York Times book review:

As Mr. Frank notes at the outset and conclusion of his book, the most sweeping and unexpected change from the moment he became interested in politics as a boy in Eisenhower-era America is that prejudice toward gay people has plummeted while skepticism toward government has spiked.

He is as troubled by the lack of trust in government as he is elated by the rise of cultural tolerance.

For some of us, this is a win-win (or would be, if the size, scope and cost of government hadn’t soared since the days of JFK under both Democrats and Republicans).

Americans should be skeptical about activist government, because its actions are so often counter-productive if not in fact destructive. Government should be held to the highest bar to prove that its interventions are necessary and the these essential objectives cannot be obtained other than through the coercive force of the state, which is backed by the treat of punishment.

Sometimes, federal intervention meets this standard, as when Washington (all three branches, executive, legislative and judiciary) intervened to put an end to unconstitutional state Jim Crow laws that institutionalized discrimination against African-Americans. But one of the greatest domestic failures of government has been its attempts to end poverty, more often fostering dependency instead of independence, in no small measure by undermining African-American families.

Still not convinced government action should be limited by strict scrutiny? Check out the amicus brief of the Mattachine Society of Washington, D.C., submitted to the U.S. Supreme Court in Obergefell v. Hodges (the consolidated same-sex marriage cases), and prepared with attorneys at McDermott Will & Emery LLP. It uses many recently acquired original source documents to show the long, tragic history of federal and state government animus toward, and persecution of, gay Americans. (For an overview, you can also read the press release.)

Rising distrust toward government? I’m all for it.

Frank Disdain

I don’t agree with former Massachusetts Rep. Barney Frank on his regulatory state policy objectives (Dodd-Frank has been an anchor around the economy, particularly for startups, while a goldmine for compliance lawyers). But in terms of tactical assessments, he has some interesting observations in his new memoir, as reviewed by the New York Times. Some excerpts from the review:

[Frank’s] chief motivation in writing this book appears to be using his experience in public life to argue that the democratic process, though imperfect and given to incremental gains, is a more effective tool for social change than the protests and provocations often favored by the left. …

In 1993, during the debate about gays serving in the military, Mr. Frank participated in a large Washington demonstration for gay rights and relates that he prevented what he says would have been a “disaster.” He eyed a group of about nine or 10 gay uniformed soldiers practicing a leg-kick routine they were to perform on the stage during the televised rally.

“Nothing could have been more devastating to our argument that L.G.B.T. people would blend comfortably into the military than a photo—or worse a video—of these guys lined up not to march but to emulate the Rockettes,” he writes.

Mr. Frank convinced them not to do it and endured their anger—which, he notes, he would often face when urging strategic or tactical restraint with gay rights groups or individuals.

But he vociferously contends that his approach was more effective, and holds up the disciplined and orderly 1963 March on Washington for civil rights as a comparison. “The contrast between that great sober, moving occasion and the antics at our march [in 1993] could not have been greater,” he writes, recalling that one lesbian comedian had said onstage she would like to have sex with Hillary Clinton, then the first lady (using a more expressive four-letter verb). “If a black comedian had begun to joke about having sex with Jackie Kennedy, he would have been thrown in the reflecting pool, not cheered.”

The activists would respond that their militancy lit a fire under the politicos, and there are some narrow examples where that seems true (Act-Up and the FDA). But in general, Frank has a point—up to a point. The national “marches” (in 1979, 1987, 1993, 2000, and 2009) failed to achieve their primary goal (Democrats didn’t move a federal anti-discrimination bill during the times when they controlled Congress during both the Clinton and Obama administrations). Creating “community” and fostering solidarity, often mentioned as vital secondary objectives of these mass mobilizations, are harder to quantify, so that debate will go on.

And yet….What is grating about Frank’s critique is his default supposition that it should be left to inside-the-Beltway politicians to deliver gay legal equality. That’s on par with his default supposition that everything is best left to our liberal-elite Washington betters to handle. It’s (almost) condescending enough to make one side with the militants.

More. As for remembrance of things past, friends who were at the first march in 1979 tell me it was personally transforming. I was there in 1987 and found it inspirational and energizing. But by 1993, the attempt seemed more like politically correct ritual (maybe my consciousness of such things was better attuned), and I skipped the others and watched on C-SPAN, where they appeared to be progressively worse in that regard.

It’s worth noting that these were the goals stated in 1979:

–Pass a comprehensive lesbian/gay rights bill in Congress.
–Issue a presidential executive order banning discrimination based on sexual orientation in the federal government, the military, and federally contracted private employment.
–Repeal all anti-lesbian/gay laws.
–End discrimination in lesbian-mother and gay-father custody cases.
–Protect lesbian and gay youth from any laws which are used to discriminate, oppress, and/or harass them in their homes, schools, jobs, and social environments.

The top goal was never achieved (and I remain equivocal about it), while an executive order banning discrimination among federal contractors was finally obtained last year (although Obama had promised it when seeking LGBT votes in 2008).

A tangent: In the cultural sphere (a least in terms of popular media and audience response), progress is undeniable, as “The Fosters” on ABC Family showed with a recent episode where two 13 year-old boys kiss. Yahooo Entertainment says this marks “the youngest gay kiss in television history.” And “while there was undoubtedly a slew of angry, hateful tweets—unfortunately, that’s nothing new for a show revolving around an interracial lesbian couple and their five biological, adopted, and foster children—the overall reaction has been positive,” the network reports.

For those of us who can recall the controversy and advertiser boycott over “thirtysomething” in 1989, it’s a much changed media world, reflecting a much changed actual world. Washington seems to be the behind the times outlier, to be remedied to a great extent if the Supreme Court does the right thing in June.

Gaining Iowa and Losing the (Real) Libertarians

The Republican dilemma: pandering to social conservatives to win primaries in Iowa and the South means alienating younger voters and centrists who are fiscally conservative, socially tolerant, especially on marriage equality. Those voters could be won over by the GOP in a general election, if not permanently offended by pandering to religious rightists.

Rand Paul has pushed himself over that cliff, to his detriment, by saying that same-sex marriage “offends myself and a lot of people,” and suggesting (if, I think, not quite stating) that gay people be denied an equal right to marry under the law, while in some future libertarian age—when the government has no role in marriage whatsoever—everyone could enter into relationship contracts as they desire, to be sanctified by religious ceremony (by willing clergy) if they wish. But until then…

We’ll see if the more moderate positions on marriage taken by Jeb Bush and Scott Walker hold. Obviously, they too have been against marriage equality. However, noting that people have strong feelings on both sides but “it’s the law now, let’s move on” might navigate that thicket, if they can stick to it.

More. Ted Cruz’s animus in Iowa makes Rand Paul seem positively gay friendly.

Furthermore. At reason.com, Scott Shackford argues that Paul is getting a raw deal and was actually offering a nuanced position. “He said the idea of gay marriage ‘offends’ him and some others, so you can guess which part of his response ended up in headlines.” Well, yes.

In fairness, an Oklahoma bill that would take the state out of the marriage licensing business but (if the Supreme Court does the right thing) still recognize same-sex marriages may give a clearer idea of what Paul is suggesting. Shackford writes:

While it is true that the legislation is a direct response to the federal courts striking down Oklahoma’s ban on same-sex marriage recognition and the likelihood that the Supreme Court will uphold those rulings this summer, [state Rep. Todd Russ] said his legislation is intended to take the state out of the fight, not to perpetuate the conflict. He said Oklahomans likely wouldn’t even notice a difference in the legal status of their relationships under his bill.

“I’m not picking a fight with them,” Russ said in reference to opposition to the legislation. “I’m not their judge. I didn’t go there.”

Update. via Scott Shackford at reason.com: Rand Paul Reaches Out to Evangelicals over ‘Moral Crisis’ Connected to Gay Marriage. Sadly, he’s shifting to the right, ever to the right, on the freedom to marry and other issues. Some see a panic response to low poll numbers and to Ted Cruz’s hyperactive lobbying of evangelicals. Others argue that Paul is still telling the pastors that while he shares their views about the “moral crisis” that includes same-sex marriage, they shouldn’t look to Washington for solutions (and instead, they should hold tent revivals, etc., as part of a new religious Great Awakening).

Non-political Actors: A Theory

I don’t know or care a lot about whether this actor from “Empire” is gay or not.  His non-reaction to a general sense that he is gay seems like a replay of what we went through with Sean Hayes back in the day.

But I have to say I think I can understand the reluctance of some young actors to be publicly and irrevocably identified as homosexual.

It’s not because of the closet — at least not these days.  Whether or not we’ve reached critical mass on gay acceptance, it is clear to most people in Hollywood that it is not only possible to be openly homosexual and have a successful career, it can even get you some favorable press.  In any event, we are long past the days of Rock Hudson.

The bigger challenge for a gay celebrity these days in coming out is the fear of being commandeered by the gay political establishment as the Latest Model.

For the last half century or so, lesbians and gay men have had to live in an artificially politicized world for the simple reason that the laws that were so harmful to us needed to be challenged by someone, and it pretty much had to be us.  Very few heterosexuals worried about having sodomy laws used to blackmail them, and it took a generation of constant effort to get people to see that the lack of legal recognition for our relationships was, in fact, a problem for us.  Those efforts have paid off in record time.

But here’s a fact that a lot of politically active people don’t always understand.  Many people didn’t want to be political, or didn’t have the inclination in that direction.  All those years of yelling, “Out of the bars and into the streets!” were a recognition of that fact.  At lot of people did get out of the bars and into the streets, but it was only because they were persuaded how vitally important that was.

Once established, political activism can become just another bureaucracy fighting for its own continued existence.  That’s perfectly fine for those who live for controversy and grievance.

But what if that’s not your thing?  In a world where sexual orientation is far better understood (though there are notable exceptions), lawyers and postal workers and bakers and nurses have the luxury of leading lives as private as they choose.  For actors or others in the orbit of celebrityhood, though, a certain amount of publicity is their oxygen.  It’s also the oxygen of the activists, who tend to resent the closet because they have to respect it.  Outing has always been controversial because it violated that necessary respect in a context where being openly gay would have the most value.

But we have a more than adequate supply of good, great and even superlative role models who are openly homosexual now.  The almost unbelievable progress we have made in both improving the law and opening the culture has broken through the silence that equalled death and a multitude of other gruesome, painful and noxious consequences.

Which is why I’m willing to give celebrities who want to avoid being coopted by the gay political establishment a break. There are actual gay politicians now, the professionals in this sport.  And there are enough high-profile homosexual celebrities that we don’t need every actor out there to publicly declare and risk conscription.