I watched some of the live stream from Unfinished Business: The Atlantic LGBT Summit held in Washington, D.C. on Dec. 11. A friend commented, “the identity politics—trans, bi, LGBT youth of color, why isn’t disability being discussed?—was too much for me.”
For me, as well.
Elizabeth Nolan Brown’s reporting at reason.com strikes the right notes about what she terms “an event filled with both thought-provoking speakers and brain-numbing PC platitudes.” For instance, on the panel discussion on legal barriers to transgender equality, she sums up:
Welcome to the minefield that is discussing LGBTIQ* issues circa 2015. By the time panelists had sorted out who was micro- or macro-agressing against whom, there was little time left for the planned topic of the panel, trans civil rights. (Unless the right to be on an Atlantic panel is at the forefront of the trans agenda.)
* Lesbian, gay, bisexual, transgender, intersex, and questioning
On the issue of whether the LGBT movement should allow tolerance for religious dissent, Brown writes:
Those who stuck out most during the day’s sessions were figures like David Boaz, executive vice president of the Cato Institute, and writer and pundit Andrew Sullivan. Boaz and Sullivan are both gay and have long histories of gay-rights activism. But their belief in religious freedom set them apart from most of the crowd and speakers gathered yesterday. One of the biggest cheers of the day, in fact, came after an audience member accused Boaz of being “on the wrong side of history.”
As I’ve said and others have noted, progressive activists believe that nondiscrimination supersedes all other constitutional liberties (here’s an example in a different context, regarding Title IX and freedom of speech). The summit showed the strident opposition to the suggestion that there is a liberty right not to be forced to provide services to same-sex weddings when doing so violates religious belief, or even a positive value is showing tolerance for religious dissent by a small number of service providers.
Brown notes that “the historic alliance between libertarians and the LGBT community when it comes to political activism” is pretty much over, as “the area of common ground seems to be shrinking.” Hard to argue with that.
More. A positive development on the LGBT front! As the New York Times reports:
In a surprise announcement, the Empire State Pride Agenda, a leading state group that advocates gay, lesbian, bisexual and transgender issues in New York, will disband next year, citing the fulfillment of a 25-year campaign for equality.
Having secured marriage equality in New York before the Supreme Court’s Obergefell ruling, and with broad nondiscrimination measures in place that include transgender men and women, it was mission accomplished. But, as the Times also notes:
State Senator Brad Hoylman, a Manhattan Democrat, seemed shocked by the news. “There’s a lot more work to be done on L.G.B.T. rights in New York, so declaring ‘Mission Accomplished’ seems premature,” he said, noting that his legislative chamber had not passed a “single piece of L.G.B.T. legislation” since 2011. “I hope a new political group picks up the mantle,” he added.
The gay equality agenda may be met, but hey, there’s lots of progressive policies to coral LGBT support behind, not to mention embedding LGBT lobbies into the identity politics spoils system!
33 Comments for “The LGBT Movement Today”
posted by Tom Scharbach on
Those who stuck out most during the day’s sessions were figures like David Boaz, executive vice president of the Cato Institute, and writer and pundit Andrew Sullivan. Boaz and Sullivan are both gay and have long histories of gay-rights activism. But their belief in religious freedom set them apart from most of the crowd and speakers gathered yesterday. One of the biggest cheers of the day, in fact, came after an audience member accused Boaz of being “on the wrong side of history.”
It isn’t clear from the account whether Boaz and Sullivan were extolling religious freedom (as in a “religious freedom” exemption to public accommodations laws in general, religion-neutral, issue-neutral and class-neutral) or special discrimination rights (as in a “religious freedom” exemption to public accommodation laws as applicable only to gays and lesbians).
Both are contentious issues, for different reasons. But one thing is clear. The former (expansion of religious freedom without regard to issue or class) is consistent with “equal means equal” and advances religious freedom, while the latter (cutting out special discrimination rights for Christians in the case of gays and lesbians) is antithetical to “equal means equal” and does not advance religious freedom.
Brown further notes that “the historic alliance between libertarians and the LGBT community when it comes to political activism” is pretty much over, as “the area of common ground seems to be shrinking.” Hard to argue with that.
It is. So-called “libertarians” like Boaz and Sullivan (right-aligned and often overtly aligned with the Republican Party), have largely abandoned efforts to advance religion-neutral, issue-neutral and class-neutral religious freedom, and instead aligned themselves with conservative Christians who advance special discrimination rights under the guise of “religious freedom”.
If “the historic alliance between libertarians and the LGBT community” is over (and I have my doubts about that, because Republican-aligned “libertarians” do not represent the libertarian movement as a whole), it is because the libertarians have rather blatantly abandoned libertarian principles in this instance, reducing “religious freedom”, a subset of personal freedom, to a single issue, and, in the broad scope of things, a temporary and minor issue, at that.
I’m sad to see that happen, but religious freedom as a principle (as in the Sherbert test of substantial burden, compelling government interest, narrowly tailored) is too important to allow it to be misused for short-term political advantage, as it is now being misused. Religious freedom is not advanced by trivializing it, and that is what is happening.
If “libertarians” like Boaz and Sullivan (and, for that matter, Stephen) insist on parting ways with “equal means equal” in order to keep conservative Christians in the Republican fold this election cycle, so be it. Both religious freedom and “equal means equal” will survive the effort.
posted by Mike in Houston on
Sully & Boaz always float special carve outs (like Stephen) as “religious freedom” alternately arguing that “we (the LGBT community) are being poor winners” or “intolerant”… yet they always fail to mention that they live in safe blue enclaves where it would absolutely never occur to them that they would be subject to discrimination based on their sexual orientation or marriage status… nor would they ever deign to put themselves in the same situation that LGBT people outside of the blue bubbles find themselves every day.
posted by Tom Jefferson III on
The “gay agenda” may be met in New York, although not so much if you bother to read beyond the headlines.
However, federal civil rights laws do not cover sexual orientation or gender identity. Some states do, to some degree or another, but a large number don’t.
I can appreciate the need to pass LGBT civil rights in a way that respects religious freedom. What I cannot appreciate is the B.S. game whereby proponents of religious freedom don’t really seem to understand what it means, or only seem to want to apply it to their own church.
Beyond that, just about every single legal and judicial advancement made at the Federal level, is something that the GOP candidates (them with a likely shot at the nomination) have pledged to repeal or just ignore.
posted by JohnInCA on
“progressive activists believe that nondiscrimination supersedes all other constitutional liberties”
That may be true.
But seeing as Miller and so-on are fine with the status quo†, just not adding sexual orientation and gender identity to the list of protected classes, they also believe that.
Or, to put it another way… claims that non-discrimination laws violate constitutional liberties when they include gay people, but silence when non-discrimination laws include race, religion, sex and national origin, is about as persuasive as someone telling me I need to obey Leviticus while we’re eating at Red Lobster.
________
†The status quo being that a Christian baker can throw me out on my ear because of his religion, but I am prohibited from throwing him out of my (hypothetical) comic book shop because of *his* religion.
posted by Jorge on
One of the biggest cheers of the day, in fact, came after an audience member accused Boaz of being “on the wrong side of history.”
That doesn’t tell me much about “whether the LGBT movement should allow tolerance for religious dissent”.
And what is “intolerance” for religious dissent anyway? Is it sticking your tongue out (microaggression!), actively seeking boycott campaigns (aggression!), or seeking changes in law (oppression!)?
If “the historic alliance between libertarians and the LGBT community” is over (and I have my doubts about that, because Republican-aligned “libertarians” do not represent the libertarian movement as a whole), it is because the libertarians have rather blatantly abandoned libertarian principles in this instance
In spite of recent spikes of intolerance and cannibalism among progressive allies and within the LGBT community, I think within the LGBT community itself the state of the coalition is largely the same. A minority viewpoint cannot be expected to keep the momentum when the tides of the country change, but it will return to some power later.
†The status quo being that a Christian baker can throw me out on my ear because of his religion, but I am prohibited from throwing him out of my (hypothetical) comic book shop because of *his* religion.
Rewrite: The Christian baker can throw you out on your ear because of your sexual orientation, but you the gay comic book store owner cannot throw him out because of his religion. Homosexuality does not appear in the First Amendment. Only in state law.
The First Amendment is the immaculate conception of the US Constitution and its subordinate laws. Everything else is less worth important.
Rewrite to succeed: The Christian baker is throwing you out on your ear because of your religion. But since gays hate talking about their own religious beliefs to anyone except other gays (ever notice that, or is it just me? I think it’s an artifact of out vs. closeted gays), this argument shall not be sown and there will be no rewards reaped.
posted by Tom Scharbach on
The Christian baker can throw you out on your ear because of your sexual orientation, but you the gay comic book store owner cannot throw him out because of his religion. Homosexuality does not appear in the First Amendment. Only in state law.
You are making a false distinction.
The First Amendment reads “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” Nothing in the First Amendment prohibits religious discrimination by private parties, individual or organizational.
As is the case with other protected classes in public accommodations laws, employment non-discrimination laws, and so on affecting the conduct of private parties, religion is protected from discrimination by private parties solely by laws and ordinances.
Absent those laws, private parties would be free to discriminate on the basis of race, ethnic origin, religion, gender or any other basis. The Constitution has nothing to do with it.
posted by Jorge on
Nothing in the First Amendment prohibits religious discrimination by private parties, individual or organizational.
I disagree. Even if the Amendment doesn’t include the language that Congress may enforce it through appropriate legislation.
posted by Tom Jefferson 3rd on
Um. No. The First Amendment does not apply when the alleged denial of one of its rights is not doing so as part of government.
With very few exceptions, none of the rights protected in the Federal or State Constitution prohibits private sector discrimination.
The 13th Amendment abolitionishing slavery is one of those rare exceptions. It is unconstitutional for the public or private sector to practice slavery as defined by law.
Private sector discrimination in America is (almost always) dealt with by enacted laws, rules and regulations. Not Constitutional rights.
So, to deal with anti-gay discrimination in the private sector, Federal and State laws have to be passed……as was in the past with race, religion, sex, ethnic ancestry and (with some footnotes) disability.
Same thing with discrimination against some one based on their political party affiliation….
posted by Tom Scharbach on
Tom: Nothing in the First Amendment prohibits religious discrimination by private parties, individual or organizational.
Jorge: I disagree. Even if the Amendment doesn’t include the language that Congress may enforce it through appropriate legislation.
Of course. That is what non-discrimination laws are Jorge, legislation.
But it is not the First Amendment that gives Congress the power to enact legislation. The First Amendment restricts the power of Congress to enact laws regarding regulation (“Congress shall make no law … prohibiting the free exercise thereof”) but does not empower Congress to enact any laws over and above the power of Congress to make laws in general.
posted by JohnInCA on
“Rewrite: The Christian baker can throw you out on your ear because of your sexual orientation, but you the gay comic book store owner cannot throw him out because of his religion. Homosexuality does not appear in the First Amendment. Only in state law.”
Um, no. The First Amendment has nothing to do with non-discrimination laws. The 14th arguably does, but only in the context of government action. But there is nothing in the constitution that stops “Irish need not apply”, “Whites only”, or “This Place of Business Shall Suffer Not a Witch”. Discrimination based on nationality, race or religion is only prohibited among non-government entities by law. Not by the constitution.
And sorry, but in every single one of these cases, you have some bigot citing their religion for the things they do. I’ll take their word over yours.
posted by Tom Scharbach on
Homosexuality does not appear in the First Amendment.
Not explicitly, of course, but if homosexual rituals were part and parcel of a modern religion, as they have been in the past, the practices would be protected by the First Amendment, just as symbolic consumption of the human body and other odd practices of modern religions are protected.
posted by Houndentenor on
Ugh. The bill of rights was not intended to limit the rights of citizens but to make a few specific ones absolutely clear. The inclusion of the 9th and later the 14th amendments are there to put the burden on the state to demonstrate why citizens do not have certain rights, not the other way around.
posted by Tom Scharbach on
The gay equality agenda may be met, but hey, there’s lots of progressive policies to coral LGBT support behind, not to mention embedding LGBT lobbies into the identity politics spoils system!
The problem in New York, I gather from reading other accounts that go into more detail than the brief NYT note, is that many LGBT folks, Senator Hoylman among them, are concerned about the fact that “the broad non-discrimination measures” were put into place by executive order rather than by legislation, and that that what one Governor puts into place by executive order, another can undo. Others seem to feel that passing legislation to ban “pray away the gay” therapies, as New Jersey did not to long ago, is also important.
It isn’t as much fun to think about the facts as it is to conjure up paranoid theories about ” embedding LGBT lobbies into the identity politics spoils system”, of course.
posted by Houndentenor on
Discrimination against lbgt people is still legal in the majority of states. i don’t know how that constitutes any agenda being met.
posted by Tom Scharbach on
New York has reasonably strong anti-discrimination laws. The laws do not, however, cover gender identity, and “pray away the gay” therapy is not yet banned, as it is in New Jersey.
The ostensible reason for Empire State’s action is that Governor Cuomo issued executive orders covering gender identity. As we all know from listening in to the “Rescind Obama Executive Orders on Day One!” pledges from almost all of the Republican candidates for President, what can be put in place with a stroke of a pen can be taken away with a stroke of a pen.
So I don’t think that “Mission Accomplished” makes much sense.
But something clearly drove the action. Empire State’s surprise action has more the flavor of GOProud’s abrupt demise than it does of Freedom to Marry’s carefully managed termination. Something doesn’t feel right about it. I suspect that there is more to learn.
posted by Tom Jefferson III on
Don’t quote me, but I had a rumor from some friends of mine — that live in the Big Apple — that the decision of the Empire State Equality to disband may not be entirely because of an eagerness to pull a George-“mission accomplished”-Bush presentation.
posted by Tom Scharbach on
I had a rumor from some friends of mine — that live in the Big Apple — that the decision of the Empire State Equality to disband may not be entirely because of an eagerness to pull a George-“mission accomplished”-Bush presentation.
I have no inside knowledge at all, but “Mission Accomplished” makes so little sense that the decision is being widely questioned within the LGBT media.
Something happened to lead to the decision — money woes, serious internal conflict on the board about priorities going forward, whatever — and sooner or later one or more of the directors will talk about it.
It doesn’t make a lot of difference in the long run. Work remains to be done on many fronts, even in New York,, and others will pick up the work. ESPA said as much in its official “Mission Accomplished” e-mail to supporters.
posted by Jorge on
A positive development on the LGBT front!
…
“I hope a new political group picks up the mantle,”
That doesn’t sound like such a positive development.
If it means that the Gender Expression Non Discrimination Act is dead, then I consider that a good thing as I do not support it, at least not at this time. The reason they gave did not make sense to me, and I suspect the ground fell out from under the organization in some way.
But if the long term result is that “a new political group picks up the mantle,” then I consider this a very, very bad thing, as I consider the Empire State Pride Agenda to be a moderate progressive organization.
Oh, I suppose that would lend credence to its stated explanation for disbanding, eh?
As for the executive order, it’s below par in Cuomo arrogance. By the way, I haven’t been able to find any information on the content of the executive order.
posted by Tom Scharbach on
I suspect that the reason homocons consider Empire Pride’s demise “positive” is that homocons want LGBT issues to “go away” in the coming election cycle. Who can blame them when the Republican Party is almost certain to nominate the most overtly anti-equality candidate in the party’s history?
All of the three candidates currently leading the race (Cruz, Rubio, Trump) have promised to repeal the Obama administrations Executive Orders on “Day One”. All three have promised to appoint “originalist” Justices to the Supreme Court (Trump’s ideal is Justice Thomas, for G-d’s sake), and will likely, if elected, get to nominate three Justices. Two of the three have outlined plans to reverse Obergefell and have pledged themselves to do so. The list goes on.
The less “homosexual activist” groups that are around to make noise about it when LGBT gains since 2008 are repealed or reversed, the better, in the eyes of homocons.
Stephen reveals his hand when he expresses (as he has many times) his conviction that “homosexual activist” organizations tend to support Democrats. He’s right, but who can blame them when the Republicans seem hell-bent-to-leather to reverse any and all progress we’ve made toward “equal means equal” since the most recent Bush presidency.
posted by Jorge on
The list goes on.
Um, as usual I object: there’s only one item on it.
The less “homosexual activist” groups that are around to make noise about it when LGBT gains since 2008 are repealed or reversed, the better, in the eyes of homocons.
Ehhhhh, if there are fewer wackos and more enlightened ones it doesn’t matter whether we’re in lean times or times of plenty, power never goes out of season.
…He’s right, but who can blame them when the Republicans seem hell-bent-to-leather to reverse any and all progress we’ve made toward “equal means equal” since the most recent Bush presidency.
I do not think Stephen’s problem is that they teeeeend to support Democrats, for as you say, who can blame them? Stephen’s problem is twofold: he believes the support is overwhelmingly one sided, and the only axis he measures is between left-progressivism and libertarianism.
posted by Tom Scharbach on
Tom: The list goes on.
Jorge: Um, as usual I object: there’s only one item on it.
I’m curious about what that “one item” might be.
If “Roll LGBT Rights Back to the Last Millenium” counts, then the list would have only one item on it, and everything else would be surplus.
But otherwise, “the list” has at least 10 items on it:
I recognize that “the list” I’ve identified is not all-inclusive. I’ve included things that readily come to mind, and I haven’t gone into transgender issues.
Whether the list consists of one item or many, I would (1) point out to you (as Houdentenor did above) that the federal government and most states do not have anti-discrimination laws in place protecting LGBTs, and (2) point out to you that the legal foundation upon which our progress toward equality stands at this point is fragile.
Although a minority of states have non-discrimination laws in place, the federal government does not and the Obama administration’s Executive Orders can (and probably will) be rescinded if any of “top tier” Republican candidates are elected. Although several states mandate marriage equality by law, most do not, and we are one “originalist” Justice away from a majority ruling that the 14th Amendment does not apply to any citizen other than African-Americans. All of the “top tier” Republican candidates have promised to nominate “originalist” Justices, and the next President is likely to be given the opportunity to replace Justices Breyer, Ginsburg, Kennedy and Scalia. We could easily see Lawrence, Windsor and Obergefell overturned if the Court gets an “originalist” majority.
Our progress toward “equal means equal” is real, but it is fragile and will remain so for another decade or so.
posted by Jorge on
I’m curious about what that “one item” might be.
Hmm.
“Who can blame them when the Republican Party is almost certain to nominate the most overtly anti-equality candidate in the party’s history?”
The two leading candidates pledging to overturn Obgerfell and outlining plans to do so is a legit example. As for the others…
The frontrunners promising to repeal Obama’s executive orders: Sorry, I don’t agree. You haven’t established that they’ve been pinned down on sexual orientation/gender identity employment protections. That’s important because there are several objectionable Obama executive orders, and the ones that come to mind the most are those relating to illegal immigrants (or were those regulations?). I am skeptical about just how important the employment protections are, and these are protections that exist in isolation of federal employment law that applies to all employers.
Appointing originalist Justices and Trump idealizing Justice Thomas: I don’t care. Obgerfell was wrongly decided, and for exactly that reason. By the way, my ideal Justice is John Paul Stevens, does that make me a flaming progressive? No it does not, because I-heart-Thomas.
In short, my usual boilerplate.
Repeal laws banning “reparative therapy”.
*Shrug.* I agree with that. I can’t see the use of such legislation except as a stepping stone to something that actually stops current abuses. I cannot overstate how useless I think this legislation is in a time when every clinical and regulatory body in the United States opposes reparative therapy (a bluff: I expect you to tell me red states are different) and almost every instance of therapy to change sexual orientation is administered by groups that remain unlicensed and unregulated under these laws. I am concerned these laws are more likely to overreach into banning any clinical work with people who are firmly committed to living opposite to their sexual orientation and have no intention of accepting gay-affirming modalities, like… I don’t know, gay Amish? It is a freedom of religion thing in my book.
Our progress toward “equal means equal” is real, but it is fragile and will remain so for another decade or so.
Only under the law. Socially I think we have crossed several points of no return.
posted by Tom Jefferson 3rd on
So in some ones magical unicorn, universe David Boaz and Andrew Sullivan run the “gay right” and a generic mob that showed up to some panel discussion runs the “gay left”. Did I miss anything?
posted by JohnInCA on
Some self-identified libertarians (who bear a shocking resemblance to republicans and/or conservatives) continue to feign surprise that gay democrats didn’t swap parties the moment Obergefell was handed down, and continue to act as if the Libertarian party had anything to do with any of the gay-rights wins over the last decade.
posted by Kosh III on
The Libertarian Party lost all credibility regarding equal rights when Bob Barr became it’s 2008 nominee for President. Barr is a notoriously gay-hostile.
posted by Tom Jefferson 3rd on
Two libertarian think tanks may hav been helpful with Lswrenc
posted by Tom Jefferson 3rd on
When two libertarian think tanks came forward to write briefs in the Lawrence case, It may have been the first major thing that a recognizable libertarian group actually did for gay rights.
I suspect that most of these same people or fellow travlers were not too upset with the homophobia of the “New Right”.
True the libertarian party has maintained its platform since its creation, but so has the green party. Neither of which had alot of political clout, and the Supreme Court generally dislikes third parties.
posted by Tom Jefferson 3rd on
That Barr got the Libertarian party nod was just absurd to watch, as someone who likes to see what the active minor parties are up to.
Barr made a quick, “I changed my mind” speech on marriage equality and the party fell in love, because he had held office….as a Republican….. who saw political gay bashing as good.
Basically, his campaigned was all about being a conservative Republican, whose career in GOP politics had reached its end, wanting a last political hurrah before retirement.
Even aside from his past record opposing equality, it was sooooo obvious that he had little interest in anything beyond his own last political hurrah.
posted by Jorge on
I like useful idiots.
Wake me up when the libertarian faction does something useful. Let’s see, Rand Paul honked like Foghorn Leghorn, and people cheered wildly. I miss Ron Paul’s Orville Redenbocker approach, but it’ll be worth it if Rand comes back again and again every… eight, every eight years.
posted by Mike in Houston on
Stephen & Jorge must be jubilant about this latest bit of news on the “equal doesn’t mean equal when it comes to LGBT & marriage rights”:
http://www.rightwingwatch.org/content/six-gop-hopefuls-vow-enshrine-anti-gay-discrimination-law
“It has become clear that the First Amendment Defense Act is rapidly becoming a signature issue that unifies the GOP. Three out of the four top contenders for the nomination — Carson, Cruz, and Rubio — have pledged to prioritize passing FADA in their first 100 days of office. Additionally, Bush, Graham, Paul, and now for the first time, Donald Trump, have publicly expressed support for FADA. Real, concrete protections for gay marriage dissenters appear to be just one election victory away.”
posted by Jorge on
Stephen & Jorge must be jubilant about this latest bit of news on the “equal doesn’t mean equal when it comes to LGBT & marriage rights”:
I pray you are right, or at least, that this is credible sarcasm. I fear you have a very poor understanding of my politics.
…
The chances of me disagreeing with something that all three of my favored candidates (Graham, Santorum, and Trump) agree on are very small.
I’d be happier if provision #2 simply read “marriage”, but as that’s close to its de facto meaning, I consider it a very enticing lure.
“On the basis that such person believes” is uncontroversial and should be protected. Unfortunately, this protection is necessary.
“On the basis that such person acts in accordance with… a religious belief” is a little more shaky.
(Reads the text)
I agree with all Findings.
Just yesterday I read a story about a religious school’s motion for dismissal denied in a lawsuit by a gay teacher who was fired solely because he was married to a man. No exemptions to anti-discrimination law apply to this school as a matter of law. I can’t disagree with the court decision but I find it troubling.
(a) In general.—Notwithstanding any other provision of law…, the Federal Government shall not…
(Oh, great. What does notwithstanding mean. “Without being prevented by” seems most appropriate here.)
Then this seems more designed to prevent new rulemaking by the executive branch.
Discriminatory action defined. This covers:
–(1) Tax-exempt organizations and (2) tax deductions for giving to charitable organizations (absolutely a good idea)
–(3)…employment, contracts, grants, loans, licenses, certification.
This *will* overturn one or more executive orders by President Obama. Do I favor those EOs? Not really.
–(4) Benefits from any federal benefit program (Is that really necessary?)
–(5) “Otherwise discriminate against such person
(Oh, good grief, this is almost circular reasoning; what’s the federal definition of discriminate? In trying to look up the Dictionary Act–which does not answer the question–I am reminded that a “person” also means a “corporation.” A website I’m looking at says “discrimination” means treatment, consideration, or distinction in favor or against as person or thing. But this law only prohibits discrimination against a thing. It permits the federal government to discriminate in favor of a person because of their religious beliefs. Notwithstanding any other provision of law.
Which leads to the following question: Does the Establishment Clause of the First Amendment prohibit the federal government from any act in favor of a religion, or only when it crosses a certain line? I believe the answer is the latter: where the First Amendment conflicts with other legitimate priorities, its power may be limited!).
Sections 4 and 5 frighten me.
posted by Jorge on
In sum, I think the allegation that this bill enshrines anti-gay discrimination into law is a slight exaggeration. It does, however, correct a breach to neutrality in a way that is entirely unbalanced. If EDNA were passed at the exact same time, this bill would not have any detrimental effect and would be a net plus, guarding against abuses on both ends. On their own, both laws are bad.
My biggest problem with this bill isn’t on the sexual orientation front, but on the religion front: it specifically allows the federal government to discriminate in favor of one religious belief over others (this would not be true if Section 3(5) read “discriminate against or in favor of such a person”). Linda Chavez argued regarding a provision of the Texas “Show Me Your Papers Law”, that when the government is allowed to use race as one factor in making a decision, race inevitably becomes the decisive factor. I am reaching for the right analogy but I think it is much the same here.
posted by Tom Scharbach on
The First Amendment Defense Act (relevant language “Notwithstanding any other provision of law, the Federal Government shall not take any discriminatory action against a person, wholly or partially on the basis that such person believes or acts in accordance with a religious belief or moral conviction that marriage is or should be recognized as the union of one man and one woman, or that sexual relations are properly reserved to such a marriage.“) fails to meet the “equal means equal” test in two out of three respects:
(1) Religion-Neutral. FADA is religion-neutral, protecting an individual who “wholly or partially on the basis that such person believes or acts in accordance with a religious belief or moral conviction”.
(2) Issue-Neutral. FADA is not issue-neutral, addressing as it does religous/moral objection to same-sex marriage, but not religious/mopral objection to other forms of marriage that are, in the minds of at least a few religionists, objectionable — remarriage after divorce, inter-racial marriage, inter-religious marriage, inter-denominational marriage, and so on.
(3) Class-Neutral. FADA is not class-neutral, sanctioning discrimination against gays and lesbians, but not discrimination against any other class.
I’ve noted the issues/problems presented by narrow-scope legislation like Fada in the larger context of protecting religious freedom and freedom of conscience from government action many times, and the ways in which such legislation trivializes religious freedom and freedom of conscience, limiting, as it does, protection of religious freedom and moral conscience to one issue, leaving all the other issues to hang out to dry.
I need not, I trust, repeat myself yet again on these matters. But I do find it interesting that a Christian who has religious scruples about remarriage after divorce is not allowed to act on that belief under the law, while a Christian who has religious scruples about same-sex marriage is expressly sanctioned by the government in so acting.