No doubt 2014 is the year the tide was turned on marriage equality and there is no going back (take a look at Freedom to Marry’s map of the states at year-end). Up next is 2015, when the assumption is the Supreme Court will rule in favor of a nationwide constitutional right for gay people to marry.
As the Washington Blade reported this week in noting that the Supreme Court declined a request by Florida’s attorney general to stay marriage equality there, after a district court ruled in favor of it:
The refusal from the Supreme Court to stay same-sex marriages in Florida is noteworthy because although justices have denied similar requests to halt same-sex marriages in Alaska, Idaho, South Carolina and Kansas, they’ve never done so before in a state where a federal appeals court has yet to rule on the issue. The decision with regard to Florida could be a sign the Supreme Court is ready to rule in favor of nationwide marriage equality no matter what the federal appeals courts decide in the interim.
Expectations can be disappointed and hopes delayed, or dashed, but the signs look good.
This being IGF Culturewatch, let us again note that there is an authoritarian shadow that’s attached itself to the fight for the freedom to marry, and that is the desire by some to force conservative Christians to provide services to same-sex weddings, which they feel is a violation of their freedom not to be forced by the state to engage in activity that violates their religious beliefs. This is part of a wider, uglier spirit of the age, described in Politico by Flemming Rose:
…the grievance lobby has succeeded in shifting the fulcrum of the human rights debate from freedom of speech to the necessity of countering hate speech; from the individual pursuing individual liberties to the individual being aggrieved by the liberties taken by others. That shift becomes counterintuitive, the logic increasingly absurd. Those aggrieved by free speech are defended, while others whose speech is perceived as offensive to such a degree that they are exposed to death threats, physical assault, and sometimes even murder are deemed to have been asking for it: “What did they expect offending people like that?”
Freedom to marry is a culture-shifting advance forward, but it is not the only freedom that matters. For a sense of this, here’s a look by the Mercatus Center at California that’s not quite up-to-date but you get the gist (the status of freedom in the other states can also be viewed).
Here’s to a new year that will advance liberty for all.
20 Comments for “Freedom Ascendant, and Under Siege”
posted by Mark Peterson on
The quote from Flemming Rose deals with threats to freedom of speech. But 50 years of case law–dating back to Heart of Atlanta Motel–says that public accommodations providing goods or services to the public is something legally different from speech. (Otherwise, Southern bigots could have cited free speech, based on their racist beliefs, to refuse service to blacks.)
This post is one of (it seems like) dozens from Stephen in which he condemns applications of public accommodations laws without saying whether he opposes all public accommodations laws, or just all public accommodations laws for gays and lesbians, or just all public accommodations laws for married gays and lesbians, while single gays and lesbians would continue to enjoy protections. At some point, it becomes hard to understand why he refuses to give a general position on public accommodations laws, since he spends so many posts on the issue.
posted by Kosh III on
The authoritarian shadow being cast is the long-standing demands of conservatives that gays(and others) live according to the repressive standards of the right. Don’t marry the one you love-marry someone conservatives choose for you, accept discrimination quietly, etc etc. These rightist Nannies keep coming up with bogus reasons to continue their hatred and abuse of anyone who doesn’t opposes being coerced into living by the standards of the the right.
Once again we are hearing the banal bleatings of someone who hasn’t a clue about how it really is when conservatives rule because they live in comfy liberal places.
posted by Tom Scharbach on
Freedom to marry is a culture-shifting advance forward, but it is not the only freedom that matters. For a sense of this, here’s a look by the Mercatus Center at California that’s not quite up-to-date but you get the gist (the status of freedom in the other states can also be viewed).
The Mercatus Center’s study is one of many that purport to measure “freedom” of one sort and another in America, focusing on different visions of what is important and what is not.
Lookings at the “freedom ranking” criteria/weighting used by the Mercatus Center:
Three “freedoms” account for 50% of the ranking:
Tax Burden (28.6%)
Freedom from Tort Abuse (11.5%)
Victimless Crime Freedom (9.8%)
Five “freedoms” account for the next 25%:
Property Right Protection (7.6%)
Gun Control Freedom (6.6%)
Health Insurance Freedom (5.4%)
Tobacco Freedom (4.1%)
Labor Market Freedom (3.8%)
The bottom 25% includes a wider variety of “freedoms”, none, however, of much consequence to the rankings:
Government Employment (2.8%),
Alcohol Freedom (2.8%)
Marriage Freedom (2.1%)
Marijuana and Salvia Freedom (2.1%)
Gambling Freedom (2.0%)
Education Policy (1.9%)
Government Spending (1.9%),
Occupational Licensing Freedom (1.7%)
Miscellaneous Regulatory Freedom (1.3%)
Government Debt (1.2%)
Fiscal Decentralization (0.9%).
Cable and Telecom Freedom (0.8%).
Civil Liberties (0.6%),
Travel Freedom (0.5%),
Asset Forfeiture Freedom (0.1%), and
Campaign Finance Freedom (0.02%).
The Mercatus Center is a “market-based” think-tank, focusing on economic deregulation. It is not surprising, therefore, that “Tax Burden” ranks far and away as the most important “freedom”, reflecting the Center’s focus on economic freedom, and that personal liberty tends to rank down the scale.
I note (and I do this without irony), that “Civil Liberties” (defined as “The civil liberties category is a grab bag of mostly unrelated policies, including raw milk laws, fireworks laws, prostitution laws, physician-assisted suicide laws, religious freedom restoration acts, rules on taking DNA samples from criminal suspects, trans-fat bans, and laws that can be used to prosecute people who audiorecord public officials in the performance of their duties.”) ranks way down the list, fourth from the bottom, lumped in with raw milk laws and trans-fat bans. It is, at best, a blip on the scale.
I think that too, frankly. I think that the issue is concocted as a political sop. If and when I hear Stephen and other advocates of “religious freedom” start to talk about freedom of conscience — that is, religion-neutral, issue-neutral and class-neutral protection of freedom of conscience — I will be the first to support them.
So long as “religious freedom” is confined to carving out special exemptions to permit discrimination against gays and lesbians, and gays and lesbians alone, I will continue to do what I have been doing — pointing out that this has nothing to do with freedom of conscience, and little, if anything, to do with religious freedom.
posted by Jorge on
Those aggrieved by free speech are defended, while others whose speech is perceived as offensive to such a degree that they are exposed to death threats, physical assault, and sometimes even murder are deemed to have been asking for it: “What did they expect offending people like that?”
Normally I’d have sympathy for this argument.
But given recent events both personally and locally, I really don’t.
posted by Don on
Interesting tidbit about that Florida ruling by the Supremes to not invoke a stay. Judge Clarence Thomas is the judge presiding over motions in the 11th Circuit. He referred the motion to the entire court. Of course they denied it. But ONLY Justices Thomas and Scalia said they disagreed with the order. Does that mean Alito and Roberts agreed with it? Tom will likely say absence of disagreement does not equal agreement. And that would be correct. But I find it very interesting that only those two justices went on record saying they would have granted a stay.
posted by Mike in Houston on
Stephen has exhaustingly flogged this victimhood meme of the massive campaign against poor Christian business people as demonstrated in nearly tens of examples.
It’s an amazing feat of weaving together a host of disparate perceived grievances into the new mantle of the so-called conservative thought: everything must be viewed through the lens of being persecuted — whether that’s actually occurring or not.
(For the record, it’s not. Loss of privilege or discomfort with social change does not rise to the level of persecution… and the continued inducement of the rage machine for every perceived slight only makes those voices sound petty and small.)
posted by Don on
Mike, I think you’re absolutely right. And I think this is why support for the anti-gay marriage amendments went into free fall in the last decade. Everybody knew gays getting marriage was ridiculous and wrong. And then those who believed it with all their hearts told the world why they felt that way when we kept pushing the issue. As soon as the arguments got heard, people were like “wait, what?!” And suddenly our preposterous position seemed very, very reasonable. And the opposition started to sound shrill and paranoid that the sky was falling.
Stephen is right that forcing people to serve at our weddings will make us look like bad winners. If we could only remain mostly quiet and let them look like really sore losers, we would be much better off. Because their demands (as Tom S. has exhaustively argued well) are absurd, whiny, and based on anti-gay animus, they will shoot themselves in the foot if they keep advancing them.
I’m basically in Hound’s camp that these laws should not be allowed giving them freedom to discriminate based upon lame religious grounds that don’t exist for anyone else – but I’m getting my cake from somebody who’s happy I’m getting married. So write the unconstitutional laws. I’ll ignore them and this will slowly go the way of the people angry about having to share restaurant space with non-whites.
posted by Tom Jefferson III on
I think that Justice Thomas has rejected the idea that their is any right to privacy in the Constitution.
He and Justice Scalia also seemed to be leery of the idea that the Constitutional protection of equal protection when it comes to anything but race.
In ‘Voting Rights’ era of the 1950s – late 1960s the court added political discrimination — against qualified voters or candidates — as an a type of discrimination that would raise the same level of tough legal review as race…but they backed away from that in the 1970s.
The court held in the 1970s that gender discrimination could violate the Constitution (albeit at a lower standard of review then race…color…religion)…this is is also when the court refused to touch the issue of sexual orientation based discrimination (which can often be seen as a type of gender discrimination)
In Romer (1996) and Lawrence (2003) the court essentially said that sexual orientation based discrimination could also violate the Constitution (but they used the weakest standard of review). The lowest standard of review was also used in the recent DOMA case.
posted by Shadow Chaser on
I would like to remind Stephen — and everyone else — that two judges in the Sixth Circuit Court of Appeals — both judges appointed by Republican presidents — voted to uphold legislation that prevents march toward marriage equality from moving forward in four states.
In short, gay and lesbian couples from Marquette to Memphis, from Iron Mountain to Signal Mountain, from Kalamazoo to Knoxville cannot get their relationships legally recognized.
Thanks a lot Presidents Bush (and Stephen, too)
posted by Tom Jefferson 3rd on
I think that the First Amendment is important and (for the issue at hand) does require making certain reasonable * neutral * and equal * faith-based exemptions to certain rules.
The problem is that;
(a) most people pushing for such exemptions do not seem not any sort of consistent/rational for where it would end (i.e. somewhere between cookies to ER room and maybe motels)
(b) giving exemptions only to heterosexuals or only to to ‘conservative’ Christians is not really respecting religious freedom.
Also..it is not like their has been a serious effort to negotiate the point; i.e. “lets support religious freedom and a gay rights bill”.
posted by Lori Heine on
Two problems with your list, TJIII.
(a) There’s no way same-sex couples could be kept out of ER rooms, and everyone with any sense knows that. The lawsuits would put any hospital out of business, even if a state legislature, somewhere in the armpit of America, had enough bottom-feeders to get such broad legislation through.
(b) There is nowhere, in any of these bills–stupid and temper-tantrum-induced as they may be–that specifies that only heterosexuals or conservative Christians would get such exemptions. The fact that those are the people who happen to want them has been conflated into the presupposition that such would be the case.
posted by Tom Scharbach on
There’s no way same-sex couples could be kept out of ER rooms, and everyone with any sense knows that. The lawsuits would put any hospital out of business, even if a state legislature, somewhere in the armpit of America, had enough bottom-feeders to get such broad legislation through.
That’s simply not true, Lori. Hospitals typically have policies, supported by medical privacy and laws relating to medical and/or end-of-life decisions, that ban those who have no legal relationship to a patient from visitation rights, participation in medical and end-of-life decisions, and so on. I’ve run into the issue, so have others I know, and there isn’t any shortage of news reporting on the issue..
Without recognition of marriage and/or (as in Wisconsin until recently) limited domestic partnership laws creating such rights, same-sex couples are more often than not left out in the cold. And, in fact, the issue has been a political touch point. Governor Pawlenty vetoed a Minnesota law a few years back that granted those rights to same-sex couples. And, as recently as 2012, the Romney campaign opined that the matter should be left to the states: “Governor Romney also believes, consistent with the 10th Amendment, that it should be left to states to decide whether to grant same-sex couples certain benefits, such as hospital visitation rights and the ability to adopt children.”
I’ll grant you that with marriage equality the issue goes away, absent further negative action from legislatures. Spouses have spousal rights. And I’ll grant you that even with Hobby Lobby, it would be tough for a legislature to enact a “religious freedom” law that would limit/end hospital visitation medical/end-of-life decisions for same-sex spouses (without reciprocal limitations on straight spouses) and pass constitutional muster.
But don’t for a New York minute think that we won’t have to fight off attempts to game the issue from religious conservatives — remember the adoption agency fight, stridently touted as a violation of “religious freedom”, and still used as a hammer to pound gays and lesbians as “intolerant”? We are going to see a lot of replays coming up right soon.
posted by Lori Heine on
I was talking about hospitals possibly refusing medical care in the ER, which is a bogeybear often brought up by proponents of drastically-expanded public accommodations laws.
I notice no one tried to answer the second assertion of my previous comment–which is that the fact conservative and anti-gay Christians would use religious freedom laws a particular way is being conflated (dishonestly) into the claim that the laws would be crafted to benefit them alone.
The wording would need to be carefully considered, indeed. But none of those proposed were specifically worded to benefit anti-gay Christians only.
posted by JohnInCA on
I’m reminded of the various stories about women, in dire need of a life-saving abortion, being denied.
Because religion.
But please, tell me more about how it’s simply ludicrous for anyone in an emergency room to let their religion interfere with their work.
posted by Tom Scharbach on
I notice no one tried to answer the second assertion of my previous comment–which is that the fact conservative and anti-gay Christians would use religious freedom laws a particular way is being conflated (dishonestly) into the claim that the laws would be crafted to benefit them alone.
Probably because it isn’t happening much.
I have heard claims that conservative Christians are the prime movers behind the proposed laws, and that conservative Christians are pushing the proposed laws primarily in order to benefit themselves. I think those claims are correct. Just about all the testimony at legislative hearings in favor of the proposed laws has come from conservative Christians, and almost all of it has focused on the need to protect themselves from the rest of us. The few sops to other religionists (like the moronic claim that the laws are needed to protect Jewish caterers from being forced to cook bacon-wrapped lobsters for Nazi weddings) are contrived and ludicrous.
I’ve also heard a lot of comment to the effect that conservative Christians have no idea about the long-term effects of the Pandora’s box that they are trying to open — comments, say, to the effect that conservative Christians have no clue at all that broad-scope religious freedom laws would allow a Muslim couple to elect to apply Sharia law to their domestic relationship, and the courts would probably have to respect that decision. And I’ve heard a lot of comment about unintended consequences that may and are even likely to result from the broad-scope laws.
But I have not heard claims that only conservative Christians will be benefited by the proposed laws. I don’t have any doubt that conservative Christians intend that result, but it won’t happen so long as we have constitutional guarantees of equal treatment under the law.
I do think that there is a lot of dishonesty — intentional dishonesty — floating around about the proposed “religious freedom” laws. I dare say, though, that most all of it seems to be coming from conservative Christians and their allies, not from those who stand in opposition to the laws.
posted by Mike in Houston on
And speaking of temper-tantrums… 14 counties in Florida will no stop providing officiating services for CIVIL marriage ceremonies now that ‘teh gays’ are included… bear in mind that these are public officials…
http://www.tampabay.com/news/courts/in-north-florida-a-views-collide-over-gay-weddings-as-many-clerks-opt-out/2212297
To quote one of the clerks:
Problem solved! No discrimination! Just like when Oklahoma Gov. Mary Fallin dealt with the issue of same-sex couples in the National Guard by ending all services for military spouses.
Or if you need another excuse not to provide services to ‘teh gays’:
Free market at work — just be sure you call ahead to find out if you’re equal or not.
posted by Tom Scharbach on
We will see a lot more of this resistance going forward, I suspect, as marriage equality comes to the 5th Circuit and 11th Circuit states. States in those circuits have a long history of cutting off government services rather than submit to “servitude to the federal government” — witness the school districts that tried to shut down public school systems and the rise of “seg schools” to evade desegregation.
The clerks’ actions — mostly confined to the panhandle — may be a case of hateful stupidity, but so long as the clerks in those county marry nobody, it meets the “equal means equal” test, and is constitutional.
I share your disgust at the absurd excuses — “I needed the space and our county, we’re in the Bible Belt” is priceless — but Christians will be Christian. Not much that the rest of us can do about it, as long as the constitutional test is met.
posted by George in Houston on
” . . . will now be used as space for people filling out paperwork related to domestic violence injunctions.
I needed the space and our county, we’re in the Bible Belt,” she said . . .”
This sums up the religious hypocrisy in all of this. They have to stop performing all courthouse weddings because they have so many people filing for family violence protection they need the office space — in the Bible belt. Of course. Bible-believers are so arrogant . Disgusting.
posted by Lori Heine on
“But I have not heard claims that only conservative Christians will be benefited by the proposed laws. I don’t have any doubt that conservative Christians intend that result, but it won’t happen so long as we have constitutional guarantees of equal treatment under the law.”
I agree. Which is why I think the tantrum is a tempest in a teapot.
Any of these laws that pass are going to fizzle and go nowhere. They are far more useful, politically and for fundraising purposes, if they fail than they are if they pass.
posted by JohnInCA on
“Freedom to marry is a culture-shifting advance forward, but it is not the only freedom that matters. ”
Well, what LGBT-related issues, aside from marriage equality, are you actually *for*, Mr. Miller? It’s clearly not inclusion in public accommodation laws. I have doubts about ENDA or housing laws.
Blood and organ donation maybe? No comment from here when the FDA “loosened” their guidelines, so I kinda got the impression you don’t actually care about the ability of LGBT Americans to contribute charitably to that aspect of the nation’s health and well-being.
Ostensibly this blog is “focused on advancing LGBT legal equality and social inclusion”. But is there anything left on your plate that you’re “for” that’s actually relevant to that focus?