The Long-Delayed Executive Order

I welcome the announced executive order prohibiting LGBT discrimination by federal contractors. Those who contract with the government (and are paid with taxpayers’ dollars) agree to abide by its rules, or they shouldn’t take the work. This is different from private companies in general, including individual proprietorships, who should have an expectation of greater freedom in how they choose to conduct their business—including the hiring, promotion, firing, and payment of their employees and the jobs they chose to accept or reject (rights greatly curtailed by the regulatory state, and which progressives would virtually eliminate*). As government expands and its prohibitions and dictates mount, liberty within civil society recedes.

It’s also worth noting that after news of an upcoming executive order was announced, as MSNBC notes, “Obama effectively painted a bull’s eye, inviting Republican apoplexy. And yet, crickets.”

The order’s timing was intended to galvanize the base before November’s congressional elections by inciting reaction from GOP office seekers. But the times are changing.

________
*Pay equity theorists on the left, for instance, advocate legislation to limit allowable private-sector pay determination to nonsubjective factors such as education levels, job descriptions and years of service (restrictions that currently apply when determining compensation for public school teachers and often for other unionized government employees), since taking into consideration job performance as a pay factor is always, in their view, subject to bias. (Some of this thinking has made its way into the proposed Paycheck Fairness Act.)

40 Comments for “The Long-Delayed Executive Order”

  1. posted by Doug on

    By signing this executive order Obama is increasing the individual liberty of the LGBT community in civil society not decreasing it. It is a shame that some of those in the faith community want to carve out an exception to discriminate against the LGBT community.

    Stephen, give me 1 reason why the evangelical community only wants to discriminate against the LGBT community and not other sinners mentioned much more prominently in the Bible.

  2. posted by Tom Scharbach on

    This is different from private companies in general, including individual proprietorships, who should have an expectation of greater freedom in how they choose to conduct their business, including the hiring, promotion, firing, and payment of their employees and the jobs they chose to accept or reject (rights greatly curtailed by the regulatory state, and which progressives would virtually eliminate). As government expands and its prohibitions and dictates mount, individual liberty within civil society recedes.

    So long as the remedy is religion-neutral, issue-neutral and class-neutral, we have something to discuss. If the remedy is nothing more than an exemption to single out discrimination against gays and lesbians as a special right, we don’t.

    Stephen, you discuss the proposed laws in terms of an abstract, high-minded defense of “individual liberty”, but the proposed laws you actually endorse are nothing more than a narrow endorsement of discrimination against gays and lesbians, and gays and lesbians alone, by conservative Christians.

    The American people are not buying to Kool-Aid. According to a Pew poll published two or three weeks ago:

    Americans overwhelming reject the notion that small business owners should be allowed to refuse to provide services or goods to individuals because they are gay or lesbian, atheist, Jewish or black, even if doing so would violate the owners’ religious beliefs. Fewer than 1-in-5 Americans say that small business owners should be able to refuse services on religious grounds to individuals who happen to be gay or lesbian (16%), atheist (15%), Jewish (12%), or black (10%).

    • posted by Doug on

      Calling for a religious exemption without specifics, one could conclude that Stephen’s desire for a special carveout allowing discrimination against the LGBT community borders on pathological.

      • posted by Mark on

        Just a few posts ago, Stephen was calling only for “faith-based exemptions so that small business owners aren’t forced to perform artistic services celebrating same-sex weddings.”

        Now he seems to be supporting faith-based exemptions for all “private businesses.” Why didn’t he just say so in the first place? And if every business owner can cite religion to discriminate on the basis of sexual orientation, then a public accommodations law won’t do much good.

  3. posted by Lori Heine on

    This is the domestic-political equivalent of appeasement. Those who would throw this sop to anti-gay fundamentalists are our Neville Chamberlains.

    It hasn’t worked in Mississippi, or in North Carolina. It won’t work anywhere else people are foolish enough to try it. If they get an inch, they’ll demand first one mile, and then ten. Enough will never be enough for them.

    The only way it might work would be if it were done the way Tom S. thinks it should be–if at all. He’s absolutely right that only a religion-neutral, freedom-of-conscience approach would be just or fair. It would also be the only solution that would truly honor individual liberty.

    Beware of social reactionaries attempting to re-brand themselves as libertarians. This Ick character in Oklahoma, for example. He wants to stone gay people to death–why? To liberate us?

    • posted by Lori Heine on

      To clarify, the executive order is not appeasement. But the carve-outs proposed by the religious right certainly are.

    • posted by Houndentenor on

      And where is the denouncement of people like that among the gay right-wingers? Talk about crickets.

    • posted by Tom Scharbach on

      T[he carve-out proposed by the religious right] is the domestic-political equivalent of appeasement.

      The demand is the opening shot of the “massive resistance” phase of our fight for equality. To the extent that there is an attempt at appeasement, it exists solely within the Republican Party, and is aimed at pacifying the social conservative faction of the Republican coalition.

      I think that it is important to be clear about what is being sought.

      Religious conservatives are seeking a carve-out to existing non-discrimination laws for the purpose of permitting religious conservatives to conduct business that are secular (rather than religious) in nature without regard to public accommodation laws of general application, in order to permit discrimination against gays and lesbians, and gays and lesbians alone.

      The proposed laws are not, with few exceptions, religious-neutral, permitting exemption for non-religious personal conscience. The proposed laws are not, with few exceptions, issue-neutral, appliable, for example, to all marriages that might be personally or religiously objectionable. The proposed laws are not, with few exceptions, class-neutral, creating an exemption applicable, for example, to any class of citizens other than gays and lesbians.

      The proposed laws are not targeted to protect “small businesses” because the proposed laws do not contain a “threshold” (for example, number of employees) under which businesses may discriminate while requiring larger businesses to comply with the law. The proposed laws are not intended to protect “artistic expression” because the proposed laws extend far beyond any sensible definition of what constitutes “artistic expression”.

      The proposed laws, with few exceptions, are so narrowly focused that the proposed laws cannot, in any rational sense, be characterized as meaningful protection of “religious freedom” or “personal liberty”. Claiming that the proposed laws protect “religious freedom” or “personal liberty” is akin to claiming that a law regulating the safety of pink M&M’s, and pink M&M’s alone, provides meaningful protection for the nation’s candy supplies. At some point, a claim becames laughable.

      Stephen dismisses the objections being raised by suggesting (see The GOP’s Cultural Contradictions, June 15, 2014) that the glaring defects exist because the proposed laws are “poorly worded”. I do not buy into that, because to do so would be to deny clear facts and common sense, both.

      When proposed laws are “poorly worded”, the inept wording is usually pointed out in hearings and legislative debate, and legislatures, more often than not, correct the inept wording. But that is not what is happening in the case of these laws. At this point, legislatures pondering such laws have heard enough testimony about the flaws to know why the flaws make the proposed laws objectionable. And yet, the proposed laws do not change.

      I think that it is fair to conclude, at this point in the process, that the proposed laws target gays and lesbians, and gays and lesbians alone, because that is the intent of the legislators who drafted and who are pushing the proposed laws.

      Americans aren’t dumb. They understand the game that is being played under the guise of “religious freedom” and “individual liberty”, and reject it 5-1. It looks like Republicans might be starting to take heed (the proposed laws have been withdrawn in about 10 states, as I understand it), and that’s a good thing.

  4. posted by Houndentenor on

    I think one reason you’re not hearing a lot about this from Republicans is that they know that most Americans already think it’s against the law to discriminate against gay people in hiring. In fact, I think that’s one of the reasons that there aren’t more cases of openly hostile work environments against gay people, at least in large companies. Attacking this move would invite questions that I don’t think they want to answer. The 90s’ lie of “I’m for equal rights but not special rights” isn’t going to fly in the 10s. Nor is the nonsense about men sneaking into women’s restrooms in drag going to fly at the national level.

  5. posted by Tom Scharbach on

    It seems to me that the timing of the order has more to do with Pride Month than it has to do with leveraging the order to trash Republicans. After all, as President Obama pointed out in his remarks to an DNC LGBT event yesterday:

    So now you flash back 10 years ago. Maybe no single issue divided our country more than same-sex marriage. In fact, the Republican Party built their entire strategy for 2004 around this issue. You remember? They calculated that if they put constitutional amendments banning same-sex marriage on state ballots, they’d turn out more voters, they’d win. And they, frankly, were right. People flocked to the polls. Those amendments were on the ballots in 11 states. They passed in every single one.

    Now, here’s a good bet. They’re not going to try the same strategy in 2014.

    The President knows, just as well as Republicans, that the social conservative anti-gay “backlash” doesn’t have any legs, and he knows that Republican politicians know it, too. The President knows, too, that Republicans have spent the better part of a year and a half now trying to figure out a way to defuse the “gay issue” without actually changing their position on “equal means equal”, and that staying quiet is a clear part of the strategy.

    Given that, the President would be politically naive to assume that the order would provoke “Republican apoplexy”. If nothing else, the President is not politically naive.

  6. posted by Jim Michaud on

    I notice a sleight of hand regarding the SSM issue. Soc cons keep crowing that 30 some odd states have SSM bans that were (using a we’re so noble voice) “voted on by the people”. What they conveniently neglect to mention is that these votes were taken what 8 or 9 years ago? 10 years ago for the oldest one and 2 years ago for the most recent (NC). They seem to imply that that’s how voters feel about it NOW. They’re most likely scared of taking any vote now because they’ll see the change.

    • posted by Tom Scharbach on

      Julaine Appling of Wisconsin Family Action summed up the current social conservative meme in last week’s radio commentary, “Drumbeats, Marriage, Judges and Truth”:

      We worked tirelessly the summer of 2006 telling people the truth about the amendment, countering the outright lies of Fair Wisconsin and others who were bent on defeating this marriage protection amendment. God blessed and worked in the hearts of people and on Election Day marriage won. Nearly 60% of the people who voted—over 1.6 million Wisconsin citizens—said yes to keeping and protecting marriage as the unique union of one man and one woman in our state.

      The amendment, the will of the people and the institution of marriage have been under strong legal fire since that historic day. The legal maelstrom culminated late this past Friday, June 6, when federal Judge Barbara Crabb issued a ruling declaring Wisconsin’s marriage protection amendment unconstitutional based on the due process and equal protection clauses of the US Constitution.

      With the single stroke of a single arrogant and liberal activist federal judge, marriage in Wisconsin was turned on its head and the will of the people was trumped.

      I am profoundly sad and disappointed, especially for the good people of Wisconsin who have had absolutely no say whatsoever in all of this. They have been defrauded with no opportunity to dissent. Those wanting to redefine marriage took the coward’s way out and went whining to the courts rather than observing and respecting the rule of law and attempting to undo the amendment the same way the amendment was put in place, following the rigorous procedure provided in Wisconsin’s governing law.

      Needless to say, Julaine is full-throated in predicting the end of Christianity as we know it unless Wisconsin enacts a law exempting Christians from obeying non-discrimination laws.

      • posted by Lori Heine on

        I’m at least glad to see that all the loons don’t live in Arizona. 🙂

        • posted by Doug on

          Rest assured that all the loons do not live in Arizona. This country has more than enough loons to go around and they are in every single state. . . unfortunately.

        • posted by Houndentenor on

          Sadly, there are far more loons than there are people in Arizona. They are everywhere. (I even met a few right wing loons in nyc! More left wing loons there, obviously, but you’d be surprised how many Fox News loving right wing nutjobs live in the Tri-State area.)

  7. posted by Tom Jefferson III on

    As I understand things, the Obama Administration preferred that Congress address the issue of equal opportunity in employment beyond just the narrow issue of government contracts. Alas, that does not seem to be happening.

    The executive order is indeed progress, but Congressional action on ENDA is going to have to occur to address the issue of equal opportunity in employment beyond the (rather) narrow field of government contractors.

    • posted by Houndentenor on

      Any hope of Congress acting to end (or at least diminish) anti-gay discrimination ended with the 2010 midterm election. Yes, there are Republicans who would vote for gay rights, but not many of them and a majority means there’s no chance of the topic even coming up for a vote (or even getting out of committee).

    • posted by Mike in Houston on

      The real sad part of this whole saga — and one that “times are a changin'” Stephen won’t bring up — is that ENDA (as passed by the Senate) would pass the House of Representatives today if it were brought up for a vote.

      The bill has 205 co-sponsors in the House — right now — and could easily get the additional votes needed to pass if were ever brought up for a vote.

      The GOP leadership, however, is so frightened of the tea-hadists that it would never, ever, ever allow a vote — no matter that the vast majority of Americans support ENDA (and most even think that protections already exist)… because they simply cannot let President Obama have any sort of legislative victory. Period.

  8. posted by Jorge on

    Those who contract with the government (and are paid with taxpayers’ dollars) agree to abide by its rules, or they shouldn’t take the work. This is different from private companies in general, including individual proprietorships, who should have an expectation of greater freedom in how they choose to conduct their business, including the hiring, promotion, firing, and payment of their employees and the jobs they chose to accept or reject (rights greatly curtailed by the regulatory state, and which progressives would virtually eliminate*).

    Maybe it’s the time of the morning but I see this as a distinction without a difference.

    …then again whenever I hear people complain that my community should only bid out to unionized contracters (which is illegal discrimination in my state, you can’t do it) I always think to myself, why not include in your requests for bids requirements for workplace conditions so progressive, there is no meaningful difference? It would have the same effect employing unions have without actually promoting unions. It would also be a lot more expensive.

    Oh, that last statement makes me question, see this is why I think you’re overreaching Mr. Miller, if there are costs and disadvantages to “saying how they choose to conduct their business, including the hiring, promotion, firing, and payment of their employees and the jobs they chose to accept or reject”, why don’t those same costs and disadvantages apply in this situation? The size of the government purse can be the difference between life and death for a business. I think you should be opposing this executive order in principle.

    • posted by Houndentenor on

      All my life I’ve heard right-wingers talk about “privatization”. It sounds like they mean the government getting out of certain things and letting private businesses take over those functions. What it REALLY means is handing taxpayer money over to private businesses, usually those who have donated millions to politicians (I call that a bribe) in exchange for those contracts. It’s often more expensive to “privatize” but some people like it better because “government can’t do anything”. What a load of crap. (Note: some things should be outsourced and some done in-house. It really does depend on the individual job.)

      • posted by Lori Heine on

        You are right. It does not mean actual privatization.

        Corporate giants use “deregulation” and “privatization” — legislation which their armies of Cadillac lobbyists have rigged to their advantage in the first place — to gain advantages over their smaller competitors and drive them out of the “free” market.

        My problem with what lefties all too often want to do is that it (A) is a Band-Aid, essentially rearranging the deck chairs on the Titanic and (B) It fails to discern any difference between the Fat Boys and little Lucy’s corner lemonade stand.

        It does no good to plaster your vehicle with “Buy Local, Support Independents” bumper stickers while supporting politics that drives them out of business.

        • posted by Houndentenor on

          I think the real problem is that once a program is in place we are stuck with it. We have a social welfare system from the 1960s. It’s 2014. Could we do better? Most likely. Is there any way to get a bill that would be better through Congress and past all the lobbyists? Absolutely not. So we are stuck with it. And that’s programs that are actually designed to do something that needs to be done, not the pork that is a payback to the wealthy donors. What a mess. I just don’t see any way of fixing it until we take the money out of politics and that’s not going to happen. (Why would the rats vote to give up their cheese?)

      • posted by Jorge on

        Democrats, in contrast, tend to create empty ideas that cost lots of money that somehow winds up in the hands of empty businesses and agencies, but at least we’re creating jobs.

        This country might be a better place if businesses and nonprofits didn’t rely on the government for their money. That is not the country we live in today. I stand by my question.

        • posted by Houndentenor on

          A large number of Fortune 500 companies would collapse without the government contracts, subsidies and tax credits. So would a lot of non-profits but then they aren’t designed to make money. (There’s not going to be a lot of profit in a homeless shelter or a food bank for poor people.) I think it’s good that we subsidize groups doing good work (as many nonprofits do). I don’t know why our tax dollars need to be subsidizing ExxonMobil.

          • posted by Jorge on

            I think it’s good that we subsidize groups doing good work (as many nonprofits do). I don’t know why our tax dollars need to be subsidizing ExxonMobil.

            Because they’re doing good work. Do you think roads are less important to an empire than temples?

          • posted by Doug on

            First, ExxonMobil does NOT build roads. Second, roads are mostly build with government money. NO ExxonMobil does NOT need subsidies.

          • posted by Jorge on

            I doubt Houndentenor was thinking of loftily named Jewish houses of worship when he was talking about food banks or homeless shelters, either.

  9. posted by Mike Alexander on

    “As government expands and its prohibitions and dictates mount, liberty within civil society recedes.”

    What is liberty, exactly?

    : the state or condition of people who are able to act and speak freely

    : the power to do or choose what you want to

    : a political right”

    There are many variations. A state of pure liberty, especially concerning the second definition, is a country without a government… Anarchism.

    By accepting the Constitution as being the law of the land, we already give up some form of liberty.

    Steven, I don’t know which side of the fence you are on on this issue, but it’s been my experience that people who use a phrase simillar to the one you said above are very selective in how tht is applied.

    Immigration? In 1790, there were no border fences, and all you had to do was be white, live in the United States for a couple of years, pledge your loyalty to the US… And that ws that. You were now a citizen. I see very few people who use the sentiments you did advocating going back to that less restrictive policy.

    We all accept compromizes of liberty for the common good. As a business owner myself, I can’t imagine not accepting the business of someone based on race or sex, or religion for that matter.

    I guess the question is… How far outside of the Church enviroment does religious freedom go???? Religion should give you a free pass to discriminate against others.

    I hope I’m making sense. I’m typing this in a rush, so it might be a bit incoherent.

  10. posted by Jorge on

    …but it’s been my experience that people who use a phrase simillar to the one you said above are very selective in how tht is applied.

    Well said.

    I’m sure you meant to say religion shouldn’t give you a free pass to discriminate against others. Now there’s an aphorism I know people are selective in applying.

  11. posted by Tom Scharbach on

    George Will, oft cited on IGF, has weighed in, likening President Obama to George III: “George F. Will: Stopping a lawless president“.

    Meanwhile, back at the ranch, the Obama administration is preparing to issue a series of regulatory determinations as to federal benefits with respect to married same-sex couples.

    Based on what I see reported, it appears that the administration will go as far as it can under federal law to ensure equal treatment of same-sex married couples.

    However, legislative action will be required to with respect to federal law explicitly prohibiting the government from providing benefits to same-sex couples, most notably “state of residence” laws applicable to Social Security benefits and the Veterans Affairs Department, where the administration is unable to provide benefits by simply changing regulations.

    We remain a long way from “equal means equal”, King George III or not.

    • posted by Doug on

      “George Will, oft cited on IGF, has weighed in, likening President Obama to George III: “George F. Will: Stopping a lawless president“. ”

      This from a man who totally supported George Bush, a president who regularly used ‘signing statements’ to specifically say he would not enforce parts of legislation he did not like, and lied the country into a costly war and violated the Geneva Convention.

    • posted by Houndentenor on

      The same George Will who recently said that women liked the “special status” that comes with being a rape victim? Someone needs to turn of his mic. He’s an embarrassment to our species.

      • posted by Jorge on

        I read that supposedly column. He’s dead, and I see nothing offensive in it. You and the people expressing outrage are taking it greatly out of context.

        The context is that for some time the right has been becoming increasingly critical of college judiciary bodies and the way colleges define sexually assaultive behavior downward. The example George Will used was of a woman who reportedly: was sleeping in the same bed as her ex-boyfriend, told him no when he became amorous, he stopped, he began taking off her clothes, she was tired and did nothing… and then she claimed he raped her and on started the college judiciary process, in which I believe he was actually expelled.

        Now, you can call someone disingenuous for trying to overstate the importance an abusive case like this. But if you do, you’d best concede the point that this was an abuse.

        George Will and others make the point that the Obama administration should not require colleges to use the “fair proponderence of the evidence” standard in determining alleged sex offenses, as it is too low and risks blighting the records of innocent people. It is a fair point to make, as are George Will’s points in general. Progressive advocates would be much better served opposing methodical, moderate conservatives like George Will on the merits than by trying to smear them. Doing so discredits them and shows them to be the shrill, intolerant harpies the soldier conservative say they are.

        • posted by Jorge on

          (Oh, good grief.)

          That first sentence should read: “I read that supposedly offensive collumn. He’s dead on, and I see nothing offensive in it.”

    • posted by Tom Scharbach on

      The joke is that President Obama has issued relatively few executive orders (168 and counting), compared to other modern presidents. I imagine that George Will knows that, but facts don’t fit his meme.

  12. posted by Jorge on

    George III would be a more interesting comparison if the topic were Iraq.

    • posted by Houndentenor on

      Iraq is a mess the British created over 100 years ago by dividing up territories under it’s rule with no concern about ethnic, religious or other matters that normally unite people for the purposes of forming a country. We can’t fix this mess. It’s not fixable. Yes, a ruthless tyrant can hold something like that together through brute force. Tito was able to do that in Yugoslavia (another made-up country which couldn’t be held together). There are plenty of other examples. This is the aftermath of the colonial period. The US has no strategic interest in trying to maintain the imperialist legacy of the former British Empire. In fact as Americans we ought to be appalled that such things ever occurred in the first place.

      • posted by Mike Alexander on

        “””Iraq is a mess the British created over 100 years ago by dividing up territories under it’s rule with no concern about ethnic, religious or other matters that normally unite people for the purposes of forming a country.”””

        It’s more pointedly reverberations of the Treaty of Versailles, in which the whims of the Western World, or more pointedly, the victors of world war, which happened to be the Brittain and France, that ignored the underlying sectarian loyalties of the entire Middle East. It’s not a surprise though, becaue they ingored the same sectarian / nationalistic pressures in their own back yard, which helped fuel some of the fires that blossomed in to World War 2.

  13. posted by Lori Heine on

    Of course, many Republicans will rage and scream against the president for even signing an order that tax-paid employers should not discriminate against LGBT workers.

    Thanks to the Repubs, meanwhile, a great botch is going to be made of whatever might survive of ENDA. The religious exemption is an insult to every person of faith who does not believe his/her religion condemns loving relationships between people of the same sex. It is, indeed, a special carve-out. An excellent article in The Nation elaborates on this:

    http://www.thenation.com/article/180358/how-enda-still-allows-discrimination-against-lgbt-workers

    But of course it is The Nation! That hotbed of (corporate advertiser-funded) subversion! So the fact that the article makes very good sense should be immediately disregarded…

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