Kiss and Clash

The Washington Post‘s Civilities columnist Steven Petrow looks at the case of a gay male couple that was asked to leave Louie’s Sports Bar & Tiki Bar in Fayetteville, N.C., by the bar’s female owner. The incident: Around 11 p.m. on a late summer night, Andrew Deras put his arm around his boyfriend Dustin Baker and gave him what he later described as a “very minor” kiss.

Noting a few similar incidents, “Could the kiss be the next big milestone in LGBT rights?,” Petrow asks.

In the comments below the article on the Post‘s website, one commenter said:

Of course this has to be litigated. The Equal Protection clause of the Constitution means that gays can do the same things as straights in public.

Others pointed to the need for new, rigorous anti-discrimination legislation, to which another commenter responded:

As a gay Libertarian, I have regularly parted ways with the activist-type gays who always want a new law… and when they get that new law, they want another new law, and another and another and another…..You don’t like that bar that threw out the gay couple for kissing? Then boycott the bar and shine the light of bad publicity upon them.

Other commenters quickly chimed in that such a viewpoint was no different than sanctioning Jim Crow segregation against African Americans.

Not long ago, I referenced a fine analysis by John Corvino on the differences between anti-gay discrimination by a smattering of private small businesses in 2015 and systemic, frequently state-imposed racial discrimination in the pre-civil-rights South. And it’s no surprise that I’d rather see civil action against establishments that discriminate over unequal public displays of affection than lawsuits and state-administered punishments.

Along those lines, Scott Shackford has an updated version of his Is this where gays and libertarians part ways? piece is in the November issue of Reason, now online. An excerpt:

[W]e have little reason to believe that most people want to discriminate against gay, lesbian, or transgender customers. The burden created by those who do is remarkably small and can be remedied without government intervention. …

Libertarians care more about restraining government authority over the individual than allegiance to anybody’s “side.” Support for the rights of religious conservatives to discriminate should not be taken as endorsement or encouragement for their goals or moral framework.

As a gay libertarian, I support the right of a baker to decline to produce a wedding cake for a same-sex couple, but don’t expect me to buy so much as a cookie at their shop. And now that government-enforced oppression and discrimination is ending, I’d much rather see my peers embrace a world where we are all equally free to decide the terms by which we deal with each other, not one where we seize the same government powers that were once used to abuse us and use them to pummel our ideological opponents.

Diehards on the Anti-Gay Right

A Statement Calling for Constitutional Resistance to Obergefell v. Hodges, the Supreme Court’s ruling in favor of same-sex marriage, was recently issued by anti-gay social theorist Robert P. George, a professor of jurisprudence at Princeton University, and co-signed by others on the anti-gay right.

Their statement calls on “all federal and state officeholders” (1) To refuse to accept Obergefell as binding precedent for all but the specific plaintiffs in that case; (2) To recognize the authority of states to define marriage, and the right of federal and state officeholders to act in accordance with those definitions; (3) To pledge full and mutual legal and political assistance to anyone who refuses to follow Obergefell for constitutionally protected reasons.

The arguments proffered by the statement’s signers are, basically, that the majority’s reasoning in Obergefell was wrong and therefore it is not binding (apparently, officeholders are only sworn to uphold Supreme Court decisions they agree with). They also contend, as do others on the far right, that Supreme Court rulings are only applicable to the those specific parties that brought the suit and that the court has no power to overturn state laws passed by legislative majorities.

Some of this language is intended to sound vaguely libertarianish, but libertarians don’t believe in upholding majority dictates that violate individual rights.

The Constitution’s framers sought to limit the power of the majority to curtail the liberty and rights of individuals. As George Will recently pointed out, “In a democracy, the strongest force is the majority, whose power will be unlimited unless an independent judiciary enforces written restraints, such as those stipulated in the Constitution.”

Interestingly, some on the political left have also, when it suited their needs, argued that it is improper for courts to overturn laws passed by a legislative majority. These arguments were recently heard in some of the defenses of Obamacare after it came under judicial scrutiny.

Although the anti-gay-marriage statement’s co-signers high-handedly compare Obergefell to Dred Scott, their own actions are similar to southern segregationists who believed that Brown v. Board of Education was not binding on states that preferred to continue treating black students as separate and unequal.

The George manifesto was trumpeted by anti-gay activist Maggie Gallagher, who notes that George has also launched a PAC, the Campaign for American Principles, to support like-minded office seekers.

Be that as it may, this is all a rearguard action by the defeated. While they may envision a nation full of Kim Davises, those officials who believe their allegiance to fundamentalist religion supersedes their duty to uphold the law as interpreted by the highest court will remain few and far between.

And they have done a disservice to those private citizens who argue for the right to be left alone and not compelled to provide services to same-sex weddings. The cause of these independent businessowners is now, to their great disadvantage, mixed together with that of intransigent government officials whose very job is to treat all citizens as equal under the law they have sworn to uphold.

Elsewhere, blogger Jon Rowe reveals in Really Professor George, et al.? that George’s statement selectively quotes (or, in effect, misquotes) Abraham Lincoln, who, Rowe shows, “obviously disagreed with Dred Scott” and urged working to overturn it, but (despite George’s assertion) did not believe Supreme Court decisions could be summarily ignored.

More. Dallin Oaks, a member of the Council of Apostles, the LDS church’s governing body, repudiates Kim Davis (and the whole Robert George crowd), signaling Mormon officeholders not to be lured into their folly:

“All such [government] officials take an oath to support the constitution and laws of their jurisdiction. That oath does not leave them free to use their official position to further their personal beliefs—religious or otherwise—to override the law. Office holders remain free to draw upon their personal beliefs and motivations and advocate their positions in the public square. But when acting as public officials they are not free to apply personal convictions—religious or other—in place of the defined responsibilities of their public offices. All government officers should exercise their civil authority according to the principles and within the limits of civil government. A county clerk’s recent invoking of religious reasons to justify refusal by her office and staff to issue marriage licenses to same-gender couples violates this principle.”

Religious Liberty Isn’t Just ‘Code for Discrimination’

Speaking at the Values Voters Summit, what most of the GOP presidential candidates said on LGBT issues presented a rogues’ gallery, as the Washington Blade reports.

But I again take exception to this common flippancy by LGBT activists and media: “protecting religious liberty…is considered code for conservatives to mean promoting anti-LGBT discrimination.” Certainly in the case of government officials like Kim Davis and her right-wing defenders, religious liberty is misused to justify government discrimination against gay people. But in civil society there is an important right to religious dissent and noncoercion that the government can and does violate, as I’ve previously discussed (most recently here).

Both social conservatives and progressives have proved to be blind guides on this matter, ginning up hysteria and supporting the violation of individual rights for their own purposes.

Value Voters Summit: Road to Nowhere

Via The New Republic:

Despite the hallelujahs, what this year’s [Value Voters Summit] ended up highlighting was not the resurgent power of Christian conservatives in the Republican Party, but how much their influence on the policy debate has diminished. As usual, most of the major GOP presidential contenders—even the unlikely figure of Donald Trump—came courting the crowd of 2,700 who’d registered for the event. But they offered little besides effusive praise for Kim Davis and utterly vague—if not utterly unrealistic—promises to champion religious liberties in the White House. When the summit-goers left Washington to scatter back to their hometowns across America, they left with no clear idea of what to fight for next—or how.

And let’s note the GOP contenders who avoided the whole bigoted circus, including Jeb Bush, John Kasich and Carly Fiorina.

More. Via Reason: “Donald Trump Literally (& Hypocritically) Promises to Save Christmas.”

The Left’s Embrace of Francis

Many on the left who celebrate Pope Francis’s hostility toward capitalism and support for climate apocalypticalism also claim he is moving the Roman church forward on gay issues. Many have cited his 2013 remark “Who am I to judge” as if he were referring to gay people in general. He was not; Francis was specifically asked about celibate gay priests, and the remark, in context, implies that if the priests are celibate, than who is he to judge them because of their sexual orientation, which they are (supposedly) not acting on.

When Francis said “We cannot insist only on issues related to abortion, gay marriage and the use of contraceptive methods,” he meant that he was just as, or more, concerned that his church focus on climate hysteria and antagonism toward market-driven economic development.

News reports have said Francis’s remarks to Congress offered something to liberals (anti-development and a response to climate change that demands more government control over, well, everything) and to conservatives, especially this (via USA Today):

“I cannot hide my concern for the family, which is threatened, perhaps as never before, from within and without,” Francis said. “Fundamental relationships are being called into question, as is the very basis of marriage and the family. I can only reiterate the importance and, above all, the richness and the beauty of family life.”

Yes, Francis offered something for liberals and conservatives, but little for libertarians.

More. Via Reuters:

Pope Francis said on Monday government officials have a “human right” to refuse to discharge a duty, such as issuing marriage licenses to homosexuals….

Maybe The Advocate would like to rescind its 2013 Person of the Year.

Furthermore. He’s actually even worse than I suspected: Vatican Confirms Private Meeting Between Pope Francis and Kentucky Clerk Kim Davis, in which he encouraged her to “stay strong” in her intransigence. Time for the LGBT Pope-defenders to apologize.

And more. No, it doesn’t change things that Francis also agreed to meet in Washington with a gay former student and the student’s long-time boyfriend (and other family members), and was gracious. As CNN also reports, “the Vatican has refused to recognize France’s ambassador to the Holy See, Laurent Stefanini, who is openly gay. And Francis has shown little inclination to adjust church doctrine on sexuality.” That’s the context in which he then met with Kim Davis; that’s what matters.

And then this: Pope asserts marriage is forever at start of family meeting. But hey, he’s anti-capitalism, has a clear soft spot for socialism, and thinks climate apocalypse is upon us for the sins of industrialization, which makes him heroic in the eyes of the left.

Eric Fanning’s Sexual Orientation Should Be Inconsequential, but It’s Not

Everything is now hyper-politicized. President Obama nominated Eric Fanning, a specialist on national security issues, to be the new Army Secretary, the service’s top civilian leadership post at the Pentagon. For good or ill, the coverage has led with the news that Fanning would be the first openly gay secretary of a military branch.

Of course, GOP presidential wannabe (but never will be) Mike Huckabee blasted the move. “It’s clear President Obama is more interested in appeasing America’s homosexuals than honoring America’s heroes,” said Huckabee.

But issues with the coverage, and the way the announcement was handled, were also raised by Richard Grenell, a leading foreign policy wonk who during the last presidential election cycle had been selected to be Mitt Romney’s foreign policy advisor, before social conservatives erupted and pressured Romney to drop him (technically, to facilitate his resignation) because he is openly gay.

Grenell tweeted “The White House has successfully announced Eric Fanning as the most qualified gay leader for the Army. It’s so offensive” and “I can’t complain about the media defining a nominee by his sexuality because it’s how the White House characterized it. #Irrelevant=Offensive,” and then “issuing press releases on someone’s sexuality is offensive because it’s irrelevant. Is he the most qualified or the most qualified gay?”

Grenell, it’s worth noting, has worked to educate conservatives on gay issues. For instance, in June he penned (at The Conservative Case for Gay Marriage.

It’s not as if the press wasn’t going to make a big deal over Fanning being gay, and it would be unreasonable to expect LGBT rights groups not to celebrate it. But I think Grenell raises a point worth considering. Similar to what those who benefit from affirmative action preferences in academia and jobs face, Fanning now has to contend with second-guessing over whether he was appointed because he was the best candidate (who happens to be gay), or because Obama wanted to make a point about gays and the military.

In that sense, the press and advocate statements haven’t done Fanning any favors.

Polis: Campus Due Process Is Dispensable

Openly gay Rep. Gerald Polis (D-Colo.) is being applauded in progressive circles but rightly castigated by others for his position that “If there are 10 people who have been accused [of campus sexual assault], and under a reasonable likelihood standard maybe one or two did it, it seems better to get rid of all 10 people” by expelling them.

As Robby Soave writes at

I could go into all the ways this idea is wrong and flies in the face of liberal Western notions about justice and fairness—whatever happened to innocent until proven guilty? Not equitable, alas—but it’s actually a downright reasonable position, considering what Polis advocated moments later. He said:
“It certainly seems reasonable that a school for its own purposes might want to use a preponderance of evidence standard, or even a lower standard. Perhaps a likelihood standard…. If I was running a (private college) I might say, well, even if there is only a 20 or 30 percent chance that it happened, I would want to remove this individual.”

Campus sexual assault, like any sexual assault, should be prosecuted and those found guilty punished. But as terrible as sexual assault is, it’s also terrible to be falsely accused, and that happens as well. Yet due process seems to be another of those once-liberal notions that progressives no longer find relevant.

Cue the witch hunts and the inquisitors.

Lookback: On Campus, Absence of Due Process Extended to Gays:

The charges here, however, involve a couple that dated for two years and, after the breakup, one accused the other of violations such as staring too much at him while he was undressed in the bathroom, and kissing him while he was asleep and thus unable to consent (did I mention this was a two-year relationship)?

The jilted student tried, unsuccessfully, to get his ex-boyfriend expelled. Under the Polis standard, he probably would have succeeded.

More. Instapundit Glenn Reynolds penned a USA Today op ed with the blurb: “Jared Polis’ idea to deprive college men of due process highlights toxic campus culture of discrimination against men.”

Furthermore. Via Instapundit and the Washington Examiner, which aren’t buying Polis’s claim, after the backlash, that he misspoke. More here.

Kim Davis Aftermath

From an AP story:

“There are no winners. Everybody’s been hurt,” said Lois Hawkins, a Morehead native who works as the executive secretary to the county’s top elected official. “It’s going to be different. It can’t go back the way it was.” …

Protesters and supporters alike have come to Rowan County as well, adding to the stress for locals who want to get back to normal. Ante Pavkovic, a pastor from North Carolina, stood in the lobby of the county clerk’s office Wednesday with a sign demanding that Davis’ employees be fired for disobeying their boss by licensing same-sex marriages, even though they too face the threat of jail or fines if they defy the judge.

If Davis moves to fire her deputy clerks who issue marriage licenses to same-sex couples, this could all blow up again. But for now, the dust is settling. The social conservatives have gotten a heroine who will fill their fundraising coffers.

But they’ve also lost an important advantage: Making the case for the freedom not to be compelled to act against religious beliefs, when defending self-employed services providers such as bakers, photographers and wedding planners who wish not to lend their efforts to same-sex marriages, had the support of a majority of Americans, including many who support same-sex marriage. But the social conservatives have now conflated that with Kim Davis and a handful of others who don’t want to recognize same-sex marriage as government officials.

That stance makes the religious right swoon, but it’s not a winning position with most Americans. Yet it’s now the battle they’ve chosen to engage.

More. David Boaz writes that while religious right activists aren’t giving up, they have failed to provoke the backlash they sought—with Kim Davis being that rare exception that proves the rule:

Unlike the continuing divide over abortion, public opinion has been moving rapidly toward support of same-sex marriage. … The obvious difference is that abortion involves the termination of a life. Many Americans regard that as murder, while others think it is at best morally troubling. Gay marriage, on the other hand, means people promising to love and support another person. It’s a lot harder to organize a campaign against that, or even to sustain people’s original opposition once they learn that some of their friends and family are gay and want to get married.

Furthermore. Via Slate, New Poll: Kim Davis May Have Seriously Damaged the Cause of Anti-Gay “Religious Liberty”. A similar point to mine above, although Mark Joseph Stern I assume thinks this is entirely a good thing, and I don’t.

And separately, David Blakenhorn draws an important distinction between “principled civil disobedience” and “principled lawlessness.”

Being Reasonable

Rod Dreher has a good post about the martyrdom of Kim Davis.  He is concerned about the effect of her case on religious freedom in general.  But he’s ignoring the central protection Kentucky itself has instituted to protect religious liberty.

Prof. Eugene Volokh has the best analysis of the actual law, and the Kentucky religious freedom protection statute seems very clear that the state would make a reasonable accommodation for Davis if she were interested in being reasonable.  In fact, the religious freedom laws passed by both the state and federal governments in the last two decades, are weighted — sometimes unreasonably (in my view) — in favor of religious freedom.  Despite my feelings, that is a policy choice elected officials have made, and it is the law.

Davis’ best argument is that she doesn’t want to have her name on state marriage certificates if they will be issued to same-sex couples, because the use of her name in those circumstances violates her religious beliefs.  The statute only requires her beliefs to be sincere, not objectively reasonable or even consistent.  Under the Kentucky law, if it is not unduly burdensome on the state to remove her name, she could continue to serve in her job.  That would require either reconfiguring how Kentucky marriage certificates look and perhaps having to reprint all of them going forward, or perhaps somehow scratching her name (if not her office title) from them.  These options may or may not be reasonable given the specifics of what processes are in place, which ones are required by state statute, etc.

Volokh says this is a “modest” request. That might be true, though “modest” might not be the word I’d use. If one elected official in one Kentucky county can bring lawful marriages in her jurisdiction to a virtual halt because of her religious beliefs, and demands that her view of religion be accommodated countywide, and possibly statewide depending on the statutory rules for marriage forms, that seems to me immodest in the extreme.

Davis’s case is extraordinary because she has insisted that her personal religious belief should govern, not just her own actions, but those of her entire office, including (in her view) all of the people who work for her.

Compare the extent of her preferences to those of Judge Vance Day in Oregon.  Judge Day has announced that he will not perform same-sex marriages due to his religious beliefs. Unlike the office of a county clerk, the performance of marriages is entirely discretionary for a judge. In fact, Judge Day specifically told his staff that they should forward any requests for same-sex marriages to other judges who do not share his religious objections.  Judge Day has at the very least made it clear that his religious objections are his own, and made an accommodation to the same-sex couples who might have approached his office to make sure that their rights are protected at the same time that his religious beliefs are respected.

Here is another example, one cited by Dreher that works in the opposite direction.  Gavin Newsom, as mayor of San Francisco, announced in 2004 that he felt California’s law prohibiting same-sex marriage was unconstitutional, and that henceforth City Hall would be happy to provide marriage licenses to same-sex couples, which is did, to great joy.  Dreher calls this “lawlessness,” and implies that those who supported Newsom are hypocrites if they oppose Davis.

Newsom went beyond his authority as mayor, but he was not, as a NYTimes editorial quoted by Dreher suggests, defying a court order.  In fact, the California Attorney General challenged the mayor’s political grandstanding, and when the California Supreme Court ruled against Newsom, the marriages ended.  Dreher’s comparison of Newsom to Davis would hold only if the mayor had truly disobeyed the court ruling and maybe gone to jail for that.

Moreover, while Newsom was indeed acting (or more accurately overacting) on a moral principle, it was one grounded in the civil law, not God’s.  The prior year, the Massachusetts Supreme Court had ruled that the state constitution protected the rights of same-sex couples to get married.  While Newsom was in grave error about his own authority, he also knew when the stunt was over.

Davis now has to make that same determination.  She can be a martyr for as long as she likes.  Kentucky officials can determine whether it makes sense to accommodate her religious beliefs and remove her name from marriage certificates.  The question is whether she is going to be reasonable enough to accept the terms she, herself, offered.

The Kim Davis Circus

(Continuing the discussion from the prior post….)

Legally correct, perhaps, but “jailed for refusing to marry the gays” is like giving anti-gay-marriage Ky. county clerk Kim Davis the religious right martyrdom prize, sure to cause a surge in their fundraising. Apparently, there is no way just to remove Davis from office for failing to carry out her duties.

Walter Olson offers some pertinent observations, including that:

Among Republican White House candidates, Carly Fiorina seems to be among the few willing to draw appropriate public-private distinctions: “when you are a government employee, I think you take on a different role.” Also from a conservative perspective, Dan McLoughlin has a thoughtful what-goes-around-comes-around view on lawlessness and the pervasiveness of double standards.

Huckabee, of course, is a complete embarrassment.

On the other hand, it is also true that if this were a liberal clerk citing her Quaker faith to refuse to sign gun permits, conservatives would be up in arms (not literally, at least in that county) while at least some progressives would defend her right to ignore the law.

More. Kasich on Ky. clerk: ‘She has to comply.’ GOP presidential contender Gov. John Kasich (R-Ohio) said on Sunday that state marriage clerks should issue same-sex marriage licenses even if they morally oppose the practice. “She’s not running a church,” Kasich said.

There is now a real split between Fiorini, Kasich, Bush, Graham and (with greater equivocation) Trump and (via second-hand reports) even Carson, versus Davis-defenders Huckabee, Cruz, Walker, Jindal, Santorum and Paul.

Some progressive sites play up GOP support for Davis, but the real story is how many of the contenders have come out against her.

Furthermore. Sprung! It’s a good thing — yes, she should be removed from office. But making her a martyr plays into our opponents’ hands.