Changing Times, Continued

by Stephen H. Miller on March 23, 2014

A GOP strategist wed his partner in one of Michigan’s first same-sex marriages, notes, which also reports “Republican President Ronald Reagan in 1988 appointed U.S. District Judge Bernard Friedman, who on Friday struck down Michigan’s constitutional amendment defining marriage as between one man and one woman.”

Alas, but as expected, the ruling has now been stayed pending appeal.

Loyal Democrats will soon comment that Michigan’s GOP Gov. Rick Snyder and Attorney General Bill Schuette are leading the appeal. But the GOP is no longer monotone, as disturbing as that prospect is to ideological partisans on both sides.

More. In another decision in favor of equality under the law, Friedman previously struck down the University of Michigan Law School’s use of race-based preferences (a ruling that was subsequently overturned), as noted in this backgrounder in the Detroit Free Press.



Dust to Dust

by Stephen H. Miller on March 20, 2014

While the immediate tendency would be to say “good riddance,” I take my hat off to GetEQUAL for noting the passing of Fred Phelps Sr. with uncommon grace:

There will always be those who are so in pain themselves that they feel compelled to inflict pain on others. We re-commit ourselves today to loving those who hate us. We re-commit ourselves today to seeing the humanity in those who cannot or will not see it in us. And we re-commit ourselves today to working toward an America that is free of that pain — an America in which LGBTQ folks can live and love openly.

In all, Phelps helped expose visceral anti-gay prejudice, often (though not always) grounded in a gross distortion of religious principles, for all its ugly nastiness, which others usually conceal behind for more polite facades. For that, we can all be thankful.

The trap, however, is viewing all disagreements about gay rights matters as if our opponents were all crypto Fred Phelpses. Some conservatives have real concerns about social stability amidst social change — I think they’re wrong in this instance, but they’re not “haters.” And certainly, issues such as using the state to force expressive service providers to do our bidding can cast certain LGBT activists and their supporters in the role of the mean-spirited bully. GetEQUAL’s reminder to recognize the humanity of our opponents would serve us, and them, far better.


Marketing Favors Inclusion

by Stephen H. Miller on March 18, 2014

The Christian Science Monitor reports:

“Iconic Irish beer brand Guinness made waves after it pulled its sponsorship from New York City’s St. Patrick’s Day parade on Sunday, because the parade excludes LGBT groups. This move came just days after Boston Beer Co., the parent company of Sam Adams, announced it would pull its sponsorship from the Boston St. Patrick’s Day parade. Heineken pulled its sponsorship for New York parade for the same reason”

Here’s why:

“[LGBT economic power] isn’t the overarching driver – it is generational,” says [Bob Witeck, president of Witeck Communications, a marketing group focused on the LGBT demographic]. “What corporations see are the large numbers of younger consumers who are very passionate about human rights and nondiscrimination. Sending a message that anyone is not welcome is wrong.”

On the other hand:

“There are mixed feelings about marketing alcohol to the LGBT community. Studies suggest the LGBT community has higher rates of substance abuse issues than other demographics. Some say heavy marketing efforts by beer and liquor brands have played a role.”

More. How corporate America, acting in its own competitive interest, advances social and legal equality:

The rapid rise in public acceptance of gay marriage also has its roots in the workplace, says Lee Badgett, the director of the Center for Public Policy & Administration at the University of Massachusetts/Amherst. … “Many of the arguments were first tested in the corporate context before they made it out to the broader public,” she says. … “Even if corporations didn’t go into this with the intention of creating social change, in the process they created social change,” says Ms. Badgett.


Expressive Freedom, Again (Because It Really Is Important)

by Stephen H. Miller on March 18, 2014

In a Wall Street Journal op-ed also posted on the Cato Institute’s website, Eugene Volokh and Ilya Shapiro write:

We support the extension of marriage to same-sex couples. Yet too many who agree with us on that issue think little of subverting the liberties of those who oppose gay marriage. Increasingly, legislative and judicial actions sacrifice individual rights at the altar of antidiscrimination law.

The crux of the argument:

Of course, a couple that is told by a photographer that she does not want to photograph their commitment ceremony may understandably be offended. But avoiding offense is not a valid reason for restricting or compelling speech.

The Supreme Court’s ruling in Wooley guarantees the right of photographers, writers, actors, painters, actors, and singers to decide which commissions, roles or gigs they take, and which they reject. But the ruling does not necessarily apply to others who do not engage in constitutionally protected speech. The U.S. Supreme Court can rule in favor of Elane Photography on freedom-of-speech grounds without affecting how antidiscrimination law covers caterers, hotels, limousine drivers, and the like. That’s a separate issue that mostly implicates state religious-freedom laws in the more than two-dozen states that have them.

The First Amendment secures an important right to which all speakers are entitled—whether religious or secular, liberal or conservative, pro- or anti-gay-marriage. A commitment to legal equality can’t justify the restriction of that right.

Which won’t, of course, convince those on the LGBT left who view individual liberty and expressive freedom as subversive and anti-progressive doctrines that mustn’t be tolerated (see comments soon to be posted below).

More. And then there’s this look at the shape of things to come from the U.K., complicated, admittedly, but the fact that that the Church of England is, in fact, the state church in England. State churches are an unholy abomination, but so is suing a church in court to perform your wedding.

Furthermore. Will Saletan at Slate, on the broader issue, writes: “For the last couple of weeks, I’ve been defending people who oppose gay marriage. That feels pretty strange, since I’ve advocated gay marriage for more than 20 years.” He concludes:

“We’re not the losers in this fight anymore. We’re the winners. Our task now is to win the right way, not by dismissing our opponents as bigots and haters, but by persuading them that marriage is just as good for gays as it is for straights. We don’t have to shove our answer down their throats. They will come around to it—they’re coming around to it already—because it’s true.”


Free The Florists!

by David Link on March 15, 2014

The paradox of religious freedom and governmental neutrality toward religion is not new; it’s embedded in America’s DNA in the First Amendment, which guarantees the free exercise of religion and prohibits the government from establishing or even endorsing religion.

What is new is the question of whether a business, rather than church or a person, can exercise religion.  Businesses must have a right to communicate with the public, and it seems necessary to me that the First Amendment’s speech protection applies to them — though there are many reasonable questions about how far this protection should extend.

The religion clauses are trickier.  The Establishment Clause requires government not to take sides in religious disputes, but there are some cases that courts, in particular have to decide: When two parents of differing religious beliefs divorce, can a court enforce one parent’s veto of the other’s decision about taking the children to church, or raising them as non-believers?  If there is a dispute between two Jewish business owners over what is kosher, should a court of law be able to decide which one is right?  These are hard questions.

For lesbians and gay men, though, it is the Free Exercise Clause that is most difficult right now.  There is no doubt that individuals must be free to exercise their religion without government interference.  But is selling cakes the exercise of religion?  Is anything a sincere religious believer does the constitutionally protected exercise of religion?  If not, what are the limits?

More broadly, do businesses as businesses have the same kind of First Amendment right to exercise religion as they do to communicate under the Free Speech Clause? There is a particular subjectivity to the Free Exercise Clause.  Under Establishment Clause rules, government must accept any sincere religious belief, even if it isn’t “acceptable, logical, consistent, or comprehensible to others.”

A sensible limit I see built into the Free Exercise Clause is that the exercise of religion, at least as the founders would have understood it, will tend to be with and among other believers.  This is not a strict rule, since many activities of religious believers will take place in the broader world: caring for the sick or poor or elderly, for example.  But in general, the exercise of religion is something more than just any activity motivated by a religious belief.  I cannot drive my car in violation of the speed laws just because I sincerely believe (however illogical it seems) that the speed laws are a violation of the laws of God because biblical authority does not support them.

What we have today is a subset of believers who want to use sincerely held religious beliefs that are at the least controversial among a very large number of non-believers to avoid laws that apply broadly to all businesses.   These laws were passed at the insistence of the gay community, but they are not an unmixed blessing.

As I’ve said before, while I remain doubtful as a constitutional matter that selling cakes and flowers or renting apartments is anything like the exercise of religion the First Amendment intended, I think it is better social policy to allow some business exercise of religion than for government to try to forbid it.

But I think a line can be drawn.  Unlike individuals, businesses are not human beings; they are fictional “persons” for sensible legal and economic reasons.  As such, they are constituted pursuant to legal processes that give the public notice of what they will do and how they will operate.

The almost complete deference that government gives to the personal exercise of religion respects the constitutional mandate prohibiting the government from establishing or favoring any particular religion (or no religion at all).  That deference also respect the fact that people’s religious beliefs are always subjective, and even sometimes contradict their own church’s stance – as the Catholic Church well knows when it comes to same-sex marriage and contraception.  Government has no business interfering with that.

If a business wants to engage in the exercise of religion, this deference to religion’s subjective nature presents unique challenges.  The government cannot inquire into anything but the sincerity of religious beliefs, and that would have to apply to a business’s “beliefs.”

I think that can be managed consistent with the constitution if a business states up front in its incorporation papers (which establish the parameters under which the business will operate) that, among its other rules, it will operate pursuant to certain religious beliefs.

This will give the public notice that certain businesses, while not religious entities themselves, will be exempt from certain laws.  Customers can choose how important, if at all, a religiously motivated business philosophy is to them.  A publicly stated religious purpose will also serve as notice to potential employees that certain benefits (like contraceptive coverage) will not be provided.

It will take time and thought to develop such a policy.  It may apply only to closely held businesses, for example, like bakeries and local florists, though in theory it could apply to larger companies.  Such a rule would be a line that could be drawn in cases like Hobby Lobby v. Sibelius, where non-believing employees would have a clear understanding that certain kinds of contraceptive coverage would not be included in any benefit package.  It could also identify businesses like Chik-Fil-A, if they determine that serving homosexuals is a violation of their religious rights.  In the modern world, this would be a business risk, but it may be one companies ought to be able to take, and accept (or suffer) its consequences.

In addition, it is not immediately clear at what level of generality or specificity the religious statement would need to be drafted.  A statement that the business would observe “Christian” principles would not be very helpful as notice to non-believers, since there are so many versions of Christian teaching and thought.  On the other hand, the number of possible issues a religious business could address is nearly infinite, and notice to the public and other third parties normally requires a certain amount of specificity.

This is a problem inherent in the nature of any exercise of religion that implicates the rights of non-believing third parties.  That, in itself, is a strong argument against this proposal.  But since the religious landlord cases in the 1990s, it is clear that courts seem to accept some business exercise of religion.  If that continues – as seems likely – it will make sense to think more deeply about what it means for businesses to be religious when they are dealing with the public at large.


The Fig Leaf

by David Link on March 11, 2014

I have some sympathy for those religious believers (Christians aren’t the only ones) who object to being called bigots and haters.  Damon Linker is not wrong to be put off by the lack of “charity, magnanimity and tolerance” of our own haters.  Some lesbians and gay men are poor winners.

But this might be a good time for those who oppose same-sex marriage in good faith to think a bit more about the enormous change among heterosexuals who now disagree with them.  They, too, grew up in a world where same-sex marriage was unimaginable — and for most of the same religious reasons as Linker, Ross Douthat, Rod Dreher and others continue to articulate.

Andrew Sullivan provides a catalogue of the good reasons some people continue to support what is often called “traditional marriage.”  But even the best intentions don’t always lead to good results.  The disconnect is what leads to skepticism or cynicism about whether opponents are truly acting in good faith or out of something far less noble.

It comes down to a simple question: If homosexuals cannot get legally married, what should they do?

The hard-liners have always said tough luck.  Marry someone of the opposite sex or stay single.  The nicest hard-liners say same-sex couples can live together, but shouldn’t expect any social recognition of the relationship.

In 2014, where same-sex couples are known and accepted, those options are inhumane and literally intolerable.  For most of history, though, these pathetic options were pretty much all there was, and no one needed to inquire much deeper.  But today it is fair to push the rhetoric.  “OK, if you won’t let same-sex couples marry, you’re really content to let same-sex couples live in social and legal limbo?”

True moderates can accept some legal recognition, like domestic partnership or civil unions.  Even the new Pope has suggested that this might be a feasible civil option, or at least an option the church need not object to in the civil realm.

But now that civil marriage itself is not only imaginable but quite real, Marriage-Lite looks less like a compromise and more like a fig leaf.  And it isn’t just lesbians and gay men who say if the civil rules for marriage don’t demand procreation as a prerequisite, why go to all the trouble of maintaining a two-track system?

When Linker, Dreher, Douthat and others complain about how homosexuals are being mean to them, they are leaving out those heterosexuals who have changed their minds.  Part of their discomfort may come from the fact that the questions from fellow heterosexuals are getting harder.  Lesbians and gay men obviously have the lead in the debate, but we wouldn’t be winning if we were all alone.  Blaming us for the change is, itself, a bit of — well, I won’t say bigotry or hatred.  But it isn’t nice.




Gay Republicans Who Might Win Drive LGBT Democrats Berserk

by Stephen H. Miller on March 9, 2014

The Washington Blade ran an op-ed by a Joe Racalto, who was an advisor to former Massachusetts Rep. Barney Frank, denouncing the Gay & Lesbian Victory Fund for endorsing openly gay GOP congressional candidate Richard Tisei, a former Massachusetts state senator who has a good chance of winning his race against Democratic Rep. John Tierney in the Bay State.

The Victory Fund, which also endorsed former University of New Hampshire dean Dan Innis (he faces former Republican congressman Frank Guinta in a GOP primary), supports openly gay candidates who can run competitive races, support measures advancing LGBT rights, and are deemed sufficiently pro-choice on abortion.

The Victory Fund declined to endorse former San Diego councilmember Carl DeMaio, despite the fact that (as the Washington Post noted, “DeMaio has perhaps the best chance at winning a seat in Congress, among the three.” Critics contend that DeMaoi, who released a campaign video in which he holds hands with his partner, Johnathan Hale, at an LGBT pride parade, has been insufficiently supportive of gay rights legislation and accepted support from Republicans who opposed marriage equality in California when he ran for San Diego mayor. (DeMaio is fiercely opposed by the anti-gay National Organization for Marriage.)

Others point out that DeMaio infuriated government employee unions by championing public pension reform in San Diego, and that it’s one thing to support moderate gay Republicans, but endorsing a gay Republican who is actually a conservative (or “Homocon“) who takes on the unions on behalf of taxpayers is just too much to expect.

In any event, several comments on the Blade’s website take op-ed author Racalto and his online fans to task for decrying the Victory Fund’s modest effort at bipartisanship. For instance, Log Cabin Republican David Lampo writes:

“It doesn’t occur to you that elected gay Republicans talking to the leadership and fellow members might result in the party changing its stance? Wasn’t that part of the process of changing the Democratic Party? Republicans will hold the House for the foreseeable future, and yet you would rather have a Democrat in those two seats rather than pro-gay Republicans who can help change the terms of the debate in the party. Amazing.”

The LGBT movement is, to a large extent, controlled by the Democratic party through its operatives who cycle from working for Democratic officeholders and administrations (or for the party itself), to leadership positions with the major LGBT political lobbies, and back again. Changing the GOP’s opposition to gay equality would be bad for the Democratic party, so of course they oppose it.

The Victory Fund’s limited foray into supporting two of three openly gay Republicans running for Congress is a small step in the right direction. Their refusal to support DeMaio shows they still have a ways to go, and the overheated response by Democratic loyalists shows why they’ll need to show a lot more spine if they don’t want to be pushed back into being just another party auxiliary like the Human Rights Campaign.

More. From the comments, Craig123 observes, “it does explain why [LGBT progressives] seem more concerned about defeating gay or gay-supportive Republicans than in defeating actual homophobes.” Indeed.

And Elliott adds his take that openly gay and gay-supportive Republicans “are running in swing districts that a Democrat could win, whereas the ‘phobes are usually running in safely Republican districts.” Which also explains why LGBT Democrats have boots on the ground campaigning in these “winnable” (for Democrats) races—even though a Democratic win means forestalling change in the GOP.

Furthermore. Pew Research Center finds that 61% of young Republicans (under age 30) now favor same-sex marriage. LGBT progressives put hands over eyes and declare the GOP will never change, so no sense working to elect openly gay and gay-supportive GOP candidates to advance and reflect that change, which can never happen.

Still more. And this, related very much to the above: Oregon GOP vote backs gay marriage.


Breeze of Change

by Stephen H. Miller on March 4, 2014

Although not quite a wind, at least yet. The New York Times reports:

Evoking Ronald Reagan and Barry Goldwater, a group of Western-state Republicans plans to enter the battle in favor of same-sex marriage on Tuesday, urging a federal appeals court to declare gay marriage bans in Utah and Oklahoma unconstitutional.

The most prominent of the approximately 20 signers of the brief are former Senator Alan K. Simpson of Wyoming, a longtime supporter of gay rights, and former Senator Nancy L. Kassebaum of Kansas, who said last year that she had reconsidered her former opposition to same-sex marriage. …

Last month, a New York Times/CBS News poll found a rapid shift in Republican attitudes nationwide. Forty percent of Republicans said same-sex marriage should be legal, up from 33 percent last May and only 24 percent in September 2012.

There’s a slow but steadily advancing change in attitude among Republicans, especially the rank and file. The strength of the religious right bloc continues to be the key break on a sea change. It’s the main force of reaction against sane social policies in the GOP, just as government employee unions are the main force of reaction against sane economic (and public education) policies in the Democratic party.

More. Overall, support for marriage equality hits another high. In the 33 states that prohibit same-sex marriage, 53 percent of those polled support allowing it. But 6 in 10 evangelical Protestants oppose same-sex marriage.

Furthermore. Chart: 11 years of opinion change.


My Sin

by David Link on March 2, 2014

I deeply appreciate the discussion in the comments on my last post.  The tangled relationship between anti-discrimination laws and religion is a subject that is worth some real thinking.

Some people are wrestling with how selling a cake got to be a constitutionally (and statutorily) protected “exercise of religion.”  There’s a reason this is confusing.  Religious believers themselves have never really been able to articulate the connection.

I think the problem began back in the 1990s, when religious landlords first began claiming they were exempt from state laws prohibiting marital status discrimination.  In 1996, I represented a heterosexual woman in the first California Supreme Court case to deal with the exemption (Smith v FEHC).  The religious landlady objected to unmarried couples living together, but California law prohibited marital status discrimination in housing.  The landlady’s claim was that by renting her property to people who were obviously sinning (there was no proof of any sexual activity, and she never tried to provide any, but the court accepted the obvious implications), she was “facilitating” their sin.  And in her mind, this was, itself a sin.  So the law was forcing her into participating in the sin her tenants were committing.

This was a novel idea.  Previously, court cases had tended to focus on things that a religion mandated or prohibited (such as working on the sabbath, forced public schooling, etc.).  But in Smith, the landlady’s claim of “facilitating” the sins of others by engaging in commercial activity was neither.  While she provided testimony that one branch of her religion (Presbyterian) thought that facilitating the sins of others was, itself, a sin, another, much larger branch of the same religion disagreed and felt that abiding by general laws like this implicated no moral condemnation.

The problem is that courts can’t go around deciding contested theological questions.  They must exercise an almost complete acceptance of any religious belief, as long as it is sincerely held (which Mrs. Smith’s was).  The U.S. Supreme Court has been very clear about this:  A religious belief “. . . need not be acceptable, logical, consistent, or comprehensible to others in order to merit [free exercise] protection.”

I argued that the protection of the “exercise of religion” ought to be cabined by something.  While courts must defer to religious beliefs, they can examine actions that are in conflict with laws.  Renting apartments would never have been understood by the framers as the kind of exercise of religion they had in mind.

That argument was shot down in less than a paragraph, and that’s probably the right answer.   The problem I saw in the commercial world of religious believers picking and choosing which sins they subjectively felt they were “facilitating” has clearly come to pass.  And there’s little doubt that this will be deployed by individual believers without much theological consistency or precision.  But the role of courts is and should be limited whenever religious issues are being fought over.

There will always be individuals who will distort and mishandle their religion.  But the danger of the government second-guessing religious believers is a far more profound concern.  This will place a burden on lesbians and gay men in some — maybe a lot — of places in the country.  But in the world today, they will not only have options, they will have allies.  This is no small fact.

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Discrimination — Old Thoughts And New

by David Link on March 1, 2014

Julian Sanchez has the best analysis of the new round of religious freedom bills, and helpfully borrows Reason magazine’s description of Arizona’s attempt as a “homophobic stunt,” which is really all the rhetorical kicking it deserves.

Sanchez distinguishes among different kinds of discrimination, and persuasively argues that what African Americans went through in the 1960s is different from what lesbians and gay men are going through today.  There are similarities between these discriminations, but they are not identical.  And the differences require some different thinking about government solutions.

There is one quibble, though, which I think is worth some attention.  After looking at our nation’s legacy of slavery and other laws and practices embodying naked racist assumptions, Sanchez moves on to sexual orientation:

Sexual orientation, unlike race, is not transmitted across generations, which means a gay person born in 1980 is not starting from a position of disadvantage that can be traced to a legacy of homophobic laws in the same way that a black person born in 1980 is likely to be disadvantaged by centuries of government-enforced racism.

This misses something essential.

Laws criminalizing sodomy were virtually universal in America, embedded in our legal structure in ways that manifested – for homosexuals — far outside the criminal realm.  For most of American history, homosexuals could have no identity as a group to lobby for different laws, no ability to form meaningful relationships (much less marriages), no lawful ability even to drink or dance together in a bar.  Few knew there were other homosexuals to even meet, and trying to find out meant the risk of imprisonment.  It was not until the 1960s that gay groups could freely send political magazines to one another through the mail without concern about exposure or prosecution.

Those generations that African Americans came from provided at least the comfort of family and identity that was inaccessible to nearly all homosexuals.  The closet was a refuge, but had its own repercussions.  No ordinary life can be lived entirely in private.  For homosexuals, simply to function day-to-day required some level of denial, and the fabrication of an appearance of heterosexuality.

This is certainly different from the regime of racism in American law and culture.  But in its own way the centrality of inauthenticity was no small psychological disadvantage, and it was borne entirely internally by each isolated person.  Lesbians and gay men spent generations as an invisible population with an invisible burden.  And this lasted well into the present.

With the sodomy laws gone, we may soon be able to retire the closet as well.  Like racism, the homophobia won’t go away, but its practitioners will place themselves on society’s fringes, for whatever satisfaction that provides them.

A critical part of Sanchez’s argument is that this is already where most homophobes are, and he’s not wrong.  Like many of us who are of a certain age, I don’t think the homophobes were prepared for how quickly the world could change around us all.

It did, and if we must still have laws, Sanchez is right that they should take the facts of that world into account.  But we should also understand history as correctly as we can.  Laws originally written in a world that had no open lesbians and gay men can be far more damaging to homosexuals than laws drafted today designed to flaunt what homophobia still exists.

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