The Hitching Post Controversy

Is a wedding chapel “a place of public accommodation” that can’t turn away same-sex couples wanting to wed? What if the chapel is run by two ordained ministers, like the Hitching Post Lakeside Chapel in Coeur d’Alene, Idaho? Eugene Volokh writes:

“I find it hard to see a compelling government interest in barring sexual orientation discrimination by ministers officiating in a chapel. Whatever interests there may be in equal access to jobs, to education, or even in most public accommodations, I don’t see how there would be a “compelling” government interest in preventing discrimination in the provision of ceremonies, especially ceremonies conducted by ministers in chapels.

What if the wedding chapel originally advertised it performed civil as well as religious ceremonies? But now states “ordained ministers will marry you using a traditional, religious ceremony”?

LGBT activists of a progressive bent are making much of the fact that the Hitching Post changed its services following the legalization of same-sex marriage in Idaho. To my way of thinking, it makes no difference. People should be free to marry, including same-sex couples, and the government should not be forcing businesses owners, whether they be ministers or not, to perform services for same-sex weddings. But I’d add with Volokh, “especially ceremonies conducted by ministers in chapels.”

More. An evangelical gay man on why he’s raising money for the defense of Portland-based Christian bakery owners who refused to make a cake for a lesbian couple’s wedding. I don’t share his view that, in this case, “a pastry is not moral approval of a religious ceremony.” Would requiring an anesthesiologist to perform his services at an abortion be ok because he’s not actually killing the fetus? (No, abortions and weddings are not the same thing, but the principle of not compelling behavior that violates religious faith is).

However, raising the defense money as an act of love is a nice gesture.

Furthermore. Walter Olson shares his take at It’s a tangled web with much mischief on the right in an effort to create religious-liberty panic. But some on the left would have no qualms with forcing the ministers to perform their marriage (a shotgun wedding, perhaps?), so no side is looking especially good in all this.

Another Update. Resolution:

The city of Coeur d’Alene, Idaho, said a for-profit wedding chapel owned by two ministers doesn’t have to perform same-sex marriages. … Initially, the city said its anti-discrimination law did apply to the Hitching Post, since it is a commercial business. Earlier this week, Coeur d’Alene city attorney Mike Gridley sent a letter to the Knapps’ attorneys at the Alliance Defending Freedom saying the Hitching Post would have to become a not-for-profit to be exempt. But Gridley said after further review, he determined the ordinance doesn’t specify non-profit or for-profit.

If this looks like a “win” for the anti-gay rightists, it’s only because of over-reach by the city on behalf of its anti-discrimination statute. Deciding to force conservative evangelicals (especially, you know, ordained ministers) to engage in behavior supporting same-sex marriage (especially, you know, performing marriage ceremonies) makes supporters of LGBT legal equality look like modern-day Robespierres.

But you can see the thinking motivating the city and LGBT activists: If we can force religiously conservative bakers and photographers to service gay weddings or be put out of business, why not?

More still. Kathy Trautvetter and Diane DiGeloromo, the lesbian owners of BMP T-shirts, are speaking up on behalf of a conservative Christian t-shirt maker who ran afoul of the state (and progressive LGBT activists) when he declined to print shirts for a gay pride festival that he believed compromised his religious values. DiGeloromo said:

“We feel this really isn’t a gay or straight issue. This is a human issue. No one really should be forced to do something against what they believe in. It’s as simple as that, and we feel likewise. If we were approached by an organization such as the Westboro Baptist Church, I highly doubt we would be doing business with them.”

Seems simple enough.

Through the Looking Glass

A view from Britain:

Berkeley is also seriously considering a tax on sugar-sweetened beverages—aka a ‘soda tax’. A public vote will settle the matter next month, and, in the view of Robert Reich, ‘if a soda tax can’t pass in the most progressive city in America, it can’t pass anywhere’.

Consider that statement for a moment. If you didn’t know what the word ‘progressive’ meant—and you knew nothing about Berkeley—what could you infer from the context? If the sentence was changed to ‘if a soda tax can’t pass in the most oppressive city in America, it can’t pass anywhere’, it would make sense. If words like ‘tax-hungry’, ‘anti-business’, ‘puritanical’ or ‘illiberal’ were substituted for ‘progressive’, it would still read correctly. …

This is what confuses us, America. If a ‘liberal bastion’ —your ‘most progressive city’—is one in which the government effectively fines people for drinking the wrong type of soft drink, what on earth are your illiberal bastions like?

Houston’s Subpoenaed Sermons

This story is all over the conservative blogosphere, but that doesn’t mean it can just be dismissed. As the Houston Chronicle reports:

Houston’s embattled equal rights ordinance took another legal turn this week when it surfaced that city attorneys, in an unusual step, subpoenaed sermons given by local pastors who oppose the law and are tied to the conservative Christian activists that have sued the city.

Opponents of the equal rights ordinance are hoping to force a repeal referendum when they get their day in court in January, claiming City Attorney David Feldman wrongly determined they had not gathered enough valid signatures to qualify for the ballot. City attorneys issued subpoenas last month during the case’s discovery phase, seeking, among other communications, “all speeches, presentations, or sermons related to HERO, the Petition, Mayor Annise Parker, homosexuality, or gender identity prepared by, delivered by, revised by, or approved by you or in your possession.”

Houston, in deeply conservative Texas, is the largest American city with an openly gay or lesbian mayor, and she has championed the anti-discrimination measure. Well and good, but sorry, this looks awful, as if they are trying to embody the charge that the true objective of LGBT activism is to outlaw the expression of disagreement with the LGBT rights agenda, especially by churches.

So why issue subpoenas for the ministers’ sermons? It makes sense, maybe, if you view churches as nothing but political action committees that happen to meet in buildings with stained glass windows—and/or you think (1) only liberal churches should be able to advocate on political issues, and (2) freedom of speech means the right to engage in speech that supports progressive activism.

As Megan McArdle wrote last summer discussing the contraceptive/abortifacient mandate: “The secular left views [religion] as something more like a hobby… That emotional disconnect makes it hard for the two sides to even debate; the emotional tenor quickly spirals into hysteria as one side says “Sacred!” and the other side says, essentially, “Seriously? Model trains?”

Update. Damage control: Houston mayor criticizes city lawyers’ subpoenas of sermons.

More. Walter Olson blogs: Scorched-pew litigation: Houston subpoenas pastors’ sermons:

Massively overbroad discovery demands are among the most common abuses in civil litigation, and it’s hard to get judges or policymakers to take seriously the harm they do. But the City of Houston, represented by litigators at Susman Godfrey, may have tested the limits when it responded to a lawsuit against the city by a church-allied group by subpoenaing the pastors’ sermons along with all their other communications.

Furthermore. Mayor’s decision to drop subpoenas fails to quell criticism. This will be a millstone around her neck, and quite probably the end of any further political aspirations.

The Vatican Rag

Those who are knowledgeable on these matters say the announcements from the Vatican Synod are radical. One document stated: “Without denying the moral problems connected to homosexual unions it has to be noted that there are cases in which mutual aid to the point of sacrifice constitutes a precious support in the life of the partners.”

Rev. James Martin, a Catholic writer with the Jesuit magazine America, told the Washington Post:

“The Synod said that gay people have ‘gifts and talents to offer the Christian community.’ This is something that even a few years ago would have been unthinkable, from even the most open-minded of prelates—that is, a statement of outright praise for the contribution of gays and lesbians, with no caveat and no reflexive mention of sin. … That any church document would praise same-sex ‘partners’ in any way (and even use the word ‘partners’) is astonishing.”

While it’s good to see some forward movement from the Church of Rome, it seems to me that these are baby steps compared to where, say, the Episcopal Church and a few other denominations have gone, in term of celebrating same-sex marriages and ordaining gay clergy, for starters. Still, one can say of the Vatican’s moves, they’re in the right direction.

Update. Yes, very small baby steps: “Amid an outcry from conservatives over the document, organizers of the synod insisted Tuesday that the report was merely a working paper that would be amended and that its value had been overstated by the media.”

More. Andrew Sullivan shared his views, which are much more positive toward the RCC (his church) than mine.

Marriage Equality and the Liberty Movement

While the freedom to marry for gay people is often framed as a victory for big-government progressivism (by both progressives and conservatives), Grover Norquist writes that it’s actually part of a wider trend of increasing liberty—which includes marijuana legalization, gun ownership and home schooling—and that the liberty movement draws from the political left and right (while rejecting aspects of both). As Norquist observes:

The relevant dividing line is not right versus left or Republican versus Democrat but the expansion of individual liberty versus whatever and whosoever stands in the way. …

Thirty years ago there were laws actually criminalizing gays…. Once unthinkable, now gay marriage appears inevitable. Attitudes toward gay Americans have shifted dramatically. Yes, the courts drove some of these changes, but public opinion has also shifted dramatically over the decades.

The drive for gay rights has moved quickly, and yet when some politicians have demanded that gay rights means a Christian florist or minister has to participate in a gay wedding against his religious beliefs, the pendulum appears to stop and may swing back. Why? Because freedom of religion then trumps “you do what I want.” The team that frames its side as “defending and expanding liberty” will win.

Politics as Blood Sport

We’ll see how this pans out. I do know that the anti-gay right and the “progressive” gay left (especially) would do anything—yes, anything—to keep openly gay Republican Carl DeMaio from being elected to Congress from San Diego. And he had been leading in the polls.

DeMaio calls himself a proud gay American, but he earned the everlasting ire of the left when he spearheaded efforts by the San Diego City Council to reform bloated public employee pension obligations. The unions and their LGBT-left allies went bonkers.

As noted here (and I’m not apologizing for citing a Fox News columnist):

One false attack drew the attention of the San Diego Ethics Commission. An anonymous left-wing group funded a SuperPac and sent mailers of DeMaio Photoshopped next to a drag queen to neighborhoods with a majority of elderly and African-American voters, knowing that such a photo would depress support for DeMaio. …

The Victory Fund, which is a group that says it supports any openly gay candidate, first told him that he couldn’t win when he was considering running for mayor in 2008 against the now disgraced former winner of that contest, Bob Filner.

The Victory Fund not only declined to endorse DeMaio, it’s common knowledge in San Diego that it then gave his confidential campaign information to the Democrats and bragged about it. The Human Rights Campaign also has declined to endorse DeMaio in either his mayoral or congressional race.

And this: Screens Smashed, Cords Cut inside DeMaio’s Campaign Office.

And this. “The post on the freshman Democrat’s campaign site referred to DeMaio, a gay Republican, as a ‘Mary.’ … a staff member uploaded the post about a week ago from the liberal website AmericaBlog…”

So unless these allegations are shown to have substance, I’ll remain skeptical.

Saving the GOP from Itself

Back in January, Virginia’s GOP Senate candidate Ed Gillespie told the Washington Times why he opposes same-sex marriage:

“My faith also teaches me that marriage is between one man and one woman. In fact in the Catholic church it’s not just a teaching, it’s a holy sacrament just like communion. I believe that as well.”

On the day that the Supreme Court let stand the 4th Circuit Court of Appeals decision overturning Virginia’s ban on gay marriage and clerks began issuing marriage licenses in the Old Dominion, Gillespie told an interviewer he has “always felt that this is a matter for the states to determine. I don’t believe that the federal government should set policy relative to marriage. I think the states should. And, obviously, given the court’s ruling, it is the law of the land today.”

I realize he’s not saying he supports marriage equality, but the shift in tone is significant. He’s making it clear it is now, for him, a non-issue, Whereas before he felt compelled to run on his opposition to marriage equality citing his religious faith, he is now indicating it has become a done deal.

As I’ve said before on this blog, the best thing that could happen to Republicans would be for the Supreme Court to take marriage off the table, as it’s now done in 11 more states (albeit by ruling not to review appellate decisions that upended state marriage bans).

Opposition to marriage equality only pays off with the GOP’s base of older social conservatives; in general elections, support for the freedom to marry now favors the Democrats. Most GOP candidates and would-be candidates know this and must be relieved that the Supreme Court (as the appeals reach their end) is giving them a pass.

More. Our friend Dale Carpenter (who once blogged here but abandoned us for The Volokh Conspiracy just because they have exponentially more readers) explains why marriage equality will not provoke the unending resistance that abortion has engendered:

I remain convinced that even Americans who fervently oppose same-sex marriage now will see a profound difference between allowing someone to marry another person and allowing someone to abort an unborn child. We aren’t likely to see protests blocking access to marriage-license bureaus or sidewalk counselors trying to talk gay couples out of marrying. Even if you oppose same-sex marriage as a matter of religious belief, you can get along in a nation that allows it in a way that you can’t really ever make peace with what you believe is killing innocent children.

Which is also why Republican politicians (no, not all, but including legitimate conservatives like Ed Gillespie) are going to be willing to let it go.

Furthermore. I just caught up with Jennifer Rubin’s Washington Post column from Oct. 7. She quotes an AP report about the reaction by Wisconsin Gov. Scott Walker, a conservative, public union fighting Republican who is seeking re-election in November and could run for president in 2016 if he prevails:

“For us, it’s over in Wisconsin,” said [Walker], whose state’s appeal was among those the court declined with a two-word order, “certiorari denied” — meaning the lower court’s ruling stands. … “To me, I’d rather be talking in the future now more about our jobs plan and our plan for the future of the state,” Walker said. “I think that’s what matters to the kids. It’s not this issue.”

The column notes that Sen. Ted Cruz (R-Texas), “the favorite of religious conservatives,” responded with a vow to introduce a constitutional amendment designed to prevent “the federal government or the courts from attacking or striking down state marriage laws.” But Cruz and his sort are becoming outliers who pander to a narrowing base. If you’ve lost Scott Walker, it’s over.

Supreme Court’s Go-Slow Approach

The U.S. Supreme Court has now turned away appeals from five states looking to maintain their prohibitions against same-sex marriage, effectively legalizing gay marriages in those states and presumably some others but also leaving the issue unresolved nationally. As Fox News/AP report:

The justices rejected appeals from Indiana, Oklahoma, Utah, Virginia and Wisconsin. The court’s order immediately ends delays on gay marriage in those states. Couples in six other states—Colorado, Kansas, North Carolina, South Carolina, West Virginia and Wyoming—also should be able to get married in short order. Those states would be bound by the same appellate rulings that were put on hold pending the Supreme Court’s review. That would make same-sex marriage legal in 30 states and the District of Columbia.

As Justice Ginsburg signaled recently, it will likely take a split among the circuits before the Supreme Court decides to rule on whether any state can legally ban same-sex marriage. Otherwise, the issue will be allowed to proceed through the remaining circuits.

All in all, significant progress has been achieved and will continue to be made. And better no decision than a bad one. If and when one of the more conservative circuits, such as the 6th (Kentucky, Michigan, Ohio, Tennessee) or 5th (Louisiana, Mississippi, Texas), upholds state bans against marriage equality, the High Court will be forced, presumably, to weigh in. It’s widely believed that Justice Kennedy, always the swing vote between conservatives and liberals, would want to maintain his reputation at the leading judicial voice for equal rights as regards gay Americans. We’ll just have to wait a bit longer.

Trans Accommodations Require Reasonableness

Regarding the Washington Post story A question for schools: Which sports teams should transgender students play on?, one could be blithe and say that social conservatives claim sexual orientation is a choice but gender isn’t (the anti-LGBT Minnesota Child Protection League stated that in terms of school policies there are no “accommodations made for those who believe that gender is a biological and genetic reality, not a social choice”).

Of course the social conservatives have got this wrong: transgender youth and their advocates are not claiming that gender is a choice; the issue is whether to be true to one’s inherent gender when it does not correspond to the body’s physical reality.

But this doesn’t mean there aren’t real issues of what constitutes reasonable accommodation in locker rooms and showers, especially in schools—and the case isn’t helped by incidents such as this one, in which a transwoman who is biologically male asserted a right to change in the women’s locker room at Evergreen State College in Washington and “Angry parents contacted the police after a young girl saw the transgender student naked inside the locker room,” according to local news reports. Reasonableness goes both ways.

Which reminds me of how New York City decided a few years back not to proceed with allowing a private firm to install individual self-cleaning restroom kiosks (popular in European cities) because they would not be large enough to accommodate wheelchairs, with the result that no New Yorker gained the benefit of this service. Or, for that matter, the argument that better no anti-discrimination law for LBGT people than one that would provide an exemption for religious organizations. I could go on, but you get the point.

The New Puritans

Cultural historian Camille Paglia, a very un-politically correct lesbian, to be sure, on why the modern campus cannot comprehend evil:

Despite hysterical propaganda about our “rape culture,” the majority of campus incidents being carelessly described as sexual assault are not felonious rape (involving force or drugs) but oafish hookup melodramas, arising from mixed signals and imprudence on both sides.

Colleges should stick to academics and stop their infantilizing supervision of students’ dating lives, an authoritarian intrusion that borders on violation of civil liberties. Real crimes should be reported to the police, not to haphazard and ill-trained campus grievance committees.

When evil (as in sexual assault) is defined as that which makes you feel bad, in retrospect, then there is no language left to describe, or help defend against, true evil.

In a similar vein, Margaret Wente on the new campus sex puritans:

Sixty years ago, sexual behaviour among the young caused deep alarm among the puritanical religious right. Today, it causes deep alarm among the puritanical progressive left. Like their forebears, they are doing their best to restrict and regulate it.

This weekend, California Governor Jerry Brown signed a bill that makes universities redefine consensual sex. From now on, students must effectively obtain the “affirmative consent” of their partners, which must be “ongoing” every step of the way. Those accused of violating the consent rule will be judged on the preponderance of the evidence. Perpetrators face suspension or expulsion, and universities face heavy penalties for failure to enforce.

The new measure is designed to stem a tidal wave of rape on campus that, in fact, does not exist. (Violent crime, including sexual assault, has been in decline for 20 years.) Even so, universities across North America have set up vast new administrative apparatuses to deal with the crisis. Many of them have also expanded the meaning of “sexual violence” to include anything that makes you feel bad.

Not dissimilar from the way the campus free speech movement of the sixties has morphed into the rule of progressive speech codes that stifle debate which veers away from progressive orthodoxy.

(As I posted recently, gay relationships among students also become embroiled in these star-chamber proceedings—On Campus, Absence of Due Process Extended to Gays.)