Magistrates and Marriage: They’re Not Private Citizens

Win some: Florida Gov. Scott Signs Repeal of Gay-Adoption Ban, Despite Vocal Opposition. Lose some: North Carolina Okays Opt-Out for Officials Who Oppose Same-Sex Marriage.

Interestingly, two GOP governors tried to do the right thing (in North Carolina, the legislature overrode a veto by Gov. Pat McCrory).

The Cato Institute’s David Boaz shared this comment on his Facebook page:

Well, I’m sorry to say that the North Carolina House has NOT recognized its constitutional obligation to offer equal justice to all citizens. Instead it has joined the Senate in overriding the governor’s veto of a bill exempting magistrates (the only civil officers authorized to perform marriages) from performing same-sex marriages if they have a religious objection.

As I said previously, this seems clearly wrong. Private citizens — florists, photographers, caterers — should not be forced to participate in ceremonies that offend them. Marrying couples can find another florist or baker who wants their business. But the government represents all citizens. Officers of the court must serve all citizens. By the way, the mission statement of the NC Magistrates Association is “The mission of the Magistrate is to protect and preserve the rights and liberties of all of the people, as guaranteed by the Constitution and laws of the United States and North Carolina, by providing a fair, independent and accessible forum [for] the just, timely and economical resolution of their legal affairs.” Under the new law they will insert “except the gay ones” after “all of the people.”

I made a similar point in an April post:

There is a key difference between private, self-employed citizens who don’t want to provide creative services to same-sex weddings, and servants of the state.

While some of my friends on the left seem to think everyone is essentially (or should be) treated as a servant of the state, that’s actually not the American way, and shouldn’t be.

But, on the other hand, if government officials can’t perform their duty to treat all citizens equally, citing their own religious convictions, then they should step aside. Separation of church and state is also the American way.

Make It So

Patrick Stewart believes in freedom, especially expressive freedom. In defending a baker’s right not to bake a cake with a pro-gay-marriage message, he explained:

In my view, this particular matter was not about discrimination, but rather personal freedoms and what constitutes them, including the freedom to object. Both equality and freedom of speech are fundamental rights—and this case underscores how we need to ensure one isn’t compromised in the pursuit of the other.

The arguments of progressive LGBT activists that it’s not ok for a religiously conservative baker to refuse to make a cake with a pro-gay-marriage message, but it is ok for a gay baker to refuse to bake a cake with an anti-gay-marriage message, is all too typical of the strained logic that amounts to whatever progressives want, the state should make sure they receive. And if this limits the expressive rights of their opponents, it’s a bonus!

Feminists vs. Transwomen

In the New York Times, feminist Elinor Burkett writes What Makes a Woman?:

For me and many women, feminist and otherwise, one of the difficult parts of witnessing and wanting to rally behind the movement for transgender rights is the language that a growing number of trans individuals insist on, the notions of femininity that they’re articulating….

Many transwomen and transmen embrace psychological distinctions between men and women that some feminist claim are purely cultural and represent patriarchal oppression. I believe there are, speaking generally, innate psychological tendencies between (most) men and (most) women that these feminist reject, although there are also exceptions, which may be more likely (although not exclusively) to be seen among gay men and lesbians (and even here, to be sure, not all gay men are more feminine than straight men, and some are hypermasculine leathermen; likewise, there are “lipstick” and “butch” lesbians), so it gets messy.

More. Like Caitlyn Jenner, women are far more likely than men to prefer frilly underwear. That’s not meant to be flippant; the fact that Jenner appeared on the cover of Vanity Fair in sexy lingerie was one of the transgressions, so to speak, that provoked Burkett’s column. To claim that women don’t generally prefer stereotypically feminine underwear, or if they do to claim it’s because of cultural norms imposed by the patriarchy, is, I think, silly.

That said, despite the general trend, some women don’t prefer frilly underwear and some men do.

Jenner, Republicans, and the Rest of Us

The Washington Post observes:

In the four days since Bruce Jenner came out as a woman named Caitlyn, many Americans have celebrated her transformation as a courageous and even heroic act. But among the social conservatives who are a powerful force within the Republican Party, there is a far darker view. To them, the widespread acceptance of Jenner’s evolution from an Olympic gold medalist whose masculinity was enshrined on a Wheaties box to a shapely woman posing suggestively on the cover of Vanity Fair was a reminder that they are losing the culture wars.

As indeed they are. And it matters not that Jenner herself has said she’s a Republican and, on many issues, a conservative.

Here’s the rub:

Dan Pfeiffer, a former senior adviser to Obama, argued that the electorate has evolved so quickly on gay rights in particular that Republicans risk sounding out of touch whenever they talk about these issues.

“Republican reticence and at times intolerance on LGBT issues is a problem for them because they have become a litmus test for young people,” Pfeiffer said. “Even if they’re conservative on other issues, if you break with them on gay or transgender rights, you look like a candidate of the past.”

But Republicans are in a bind: seem backward and intolerant to most younger (and a growing number of older) Americans, or alienate the religious right that votes heavily in GOP primaries, particularly in the South, and dominates the Iowa caucuses. They’re caught in a vice of their own making.

On the subject of Jenner’s transition, noted economist Deirdre McCloskey, herself a transwoman, makes an important point countering the lazy if perhaps politically expedient view that LGB and T are some sort of continuum (they’re not), writing:

How to stay calm? Stop thinking of gender change as being about sex, sex, sex. Stop believing the locker-room theory that gender changers are gay, and gays want to be women. Whom you love is not same thing as who you are. …

Believe me, I would much rather have realized at age 53 that I was gay…than to go through a dozen operations and a lot of funny and terrifying embarrassments.

Bisexuality is on the Kinsey scale from straight to gay/lesbian, but gender identity is distinct from sexual orientation, and we shouldn’t confuse matters further than they already are by the simplistic idea of an LGBT identity.

Pataki’s Run

It will be interesting to see if former New York Gov. George Pataki’s (very) long shot bid for the GOP presidential nomination gets any traction in New Hampshire or elsewhere. As governor, he was a fiscal conservative who believed in limiting the growth of government and holding taxes in check. He is also probably the most pro-gay inclusion of the serious candidates, at least in terms of his support for anti-discrimination statutes (he has said he opposes gay marriage).

Pataki is staking out a position as a fiscal conservative and social liberal. As the Wall Street Journal reported, as governor he supported “some of the strictest gun-control laws in the U.S. at the time.” He also is moderately pro choice on abortion, and serious about extending business regulation to combat climate change.

Those are all positions that can be debated, but it would be good to see a candidate who was pro gay marriage and pro Second Amendment, and reasonably pro life (at least as concerns late-term partial birth terminations, as, in fact, Pataki seems to be) and skeptical about our ability to effectively regulate climate change and the value of attempting to do so versus the impact on economic vitality. Such as candidate might have brighter prospects among Republicans than Pataki will.

Secret Lives

According to the Raw Story website, former House speaker Dennis Hastert “would be only the latest conservative Christian political figure to be revealed as engaging in a homosexual lifestyle he demonized as a lawmaker.”

I think “engaging in a homosexual lifestyle” may be overstated based on what we know (unattributed allegations of improper sexual misconduct with a student wrestler). Still, the sad litany of socially conservative, gay-marriage opposing GOP (mostly) politicians who have sex with men (or boys) continues.

We don’t know what percentage of men who tell survey takers they’re straight because they’re married to a woman and have children are secretly men who have sex with men. But in the better world to come—with legal equality, same-sex marriage commonplace, and social acceptance the cultural norm—hopefully so many lives won’t be tragically distorted.

More. Right-wing screeds against gay scoutmasters miss the point that it’s the closet cases (often married to women, with kids) who are the danger. The openly gay scoutmaster—or wrestling coach—with a husband is much less likely to abuse teenage boys.

Furthermore. At the Volokh Conspiracy, Orin Kerr blogs:

If I understand the history correctly, in the late 1990s, the President was impeached for lying about a sexual affair by a House of Representatives led by a man who was also then hiding a sexual affair, who was supposed to be replaced by another Congressman who stepped down when forced to reveal that he too was having a sexual affair, which led to the election of a new Speaker of the House who now has been indicted for lying about payments covering up his sexual contact with a boy.

Making the Conservative Case

Sooner or later, U.S. conservatives who are not fanatical zealots will come around on same-sex marriage. But they will do so in response to conservative arguments grounded in morality and concerns for social stability, not progressive contentions—such as those deployed in the failed campaign against California’s Prop. 8, in which political ads called rousinlgy for equal access to multitudinous government benefits. For libertarian-minded conservatives, arguments favoring freedom and recognition of natural rights (not rights to government entitlements) are most resonant.

Conservative arguments have certainly been made over the years, including by writers associated with the Independent Gay Forum, the now disbanded parent of this blog. But it’s good to see the conservative case gaining new prominence.

For example, National Review has published many attacks against same-sex marriage and legal equality for LGBT people. But this week they’ve included a supportive piece by their own managing editor, Jason Lee Steorts, An Equal Chance at Love: Why We Should Recognize Same-Sex Marriage. He writes:

Another way of saying this is that sexual counter-revolutionaries are telling a noble lie. The lie is that it is immoral to think of sex and marriage as anything other than child-directed …

The trouble with noble lies is that sooner or later people see through them. When they do, they tend to have revolutionary overreactions. And when that happens, what is needed is not a complete reversion to the old view, but a synthesis of what was right in that view with what was right in the reaction against it.

In their ideological absolutism, many traditionalists today stand in the way of such a synthesis. Their position on same-sex marriage is tragic, in that they have taken a stand against burgeoning social endorsement of commitment and sexual exclusivity as ends in themselves.

In a kind of concurring opinion, Prof. Jonathan H. Adler of the Case Western University School of Law offers A conservative case for gay marriage at the Volokh Conspiracy blog, noting:

A focus on the interests of children — the actual children who are alive today and who will be born in the years to come — supports a profoundly conservative, and quite Burkean, argument for gay marriage.

Set aside some utopian conception of what marriage is or should be about in the ideal, and instead recognize the way we live now — how and why we marry and how children are brought into this world and the homes in which they are raised. There are hundreds of thousands of children alive today who stand to benefit from being raised in more-stable, two-parent households. Every state allows gay people to raise children — and nearly all allow homosexuals to adopt or serve as foster parents. If this is acceptable (and few would argue that it’s worse for a child to be raised by gay parents than no parents at all) how can it be in the interests of these same children to ensure that they are raised in less optimal conditions?

He concludes:

If the Supreme Court acts as expected, these issues will be moot. But perhaps if conservatives think more about the children, they will feel a little better about the practical implications of such a result.

It won’t convince Justices Scalia, Alito and Thomas, but the well-stated moral logic in these arguments will allow future conservatives to say, with British Prime Minister David Cameron, “Conservatives believe in the ties that bind us. Society is stronger when we make vows to each other and we support each other. I don’t support gay marriage in spite of being a conservative. I support gay marriage because I am a conservative.”

The Old Playbook’s Last Round

Via the Washington Times, Young conservatives push GOP tolerance on gay marriage, other social issues:

“There are a lot of LGBT people out there who are brilliant small business owners, who hold to the principles of limited government, strong families, fiscal conservatism and strong national security—things that we as Republicans love—but they don’t have a place in the Republican Party right now,” said Jerri Ann Henry, the campaign manager for Young Conservatives for the Freedom to Marry. “What’s unfortunate is they also clearly do not have a place in the Democratic Party.”

As the article acknowledges, there isn’t likely to be any real alteration in the GOP’s opposition to same-sex marriage during this election cycle. But in future elections, running on a platform in favor of invalidating hundreds of thousands of marriages, and leaving many of the children of these marriages without the security of two married parents, is going to be viewed as unacceptably extreme beyond the confines of Iowa’s Republican caucuses. And that will have costs. Whether the GOP can change before those costs are exacted remains to be seen.

Ireland: Economic Liberalization Yields Gay Equality

James Peron, writing at the Huffington Post, explains The Seismic Shift in Irish Values, and One Reason It Happened. He writes:

Historically, the more market-oriented the economy, the more the well-being of LGBT people increases. Politicized markets require political power, something sexual minorities rarely have, but depoliticized economies only need an entrepreneur willing to cater to a minority. …

It was the Financial Times that noted the role of material wealth on social liberalism. They wrote, “Ireland’s apparent willingness to embrace gay marriage is therefore as much a product of the Celtic Tiger years as it is a reflection of the decline of the Church’s influence.” With rising prosperity, Irish voters started embracing socially liberal reforms, matching the economically liberal reforms of a few years earlier: deregulation and more individual choice.

Peron comments, “Similar seismic shifts in cultural values occurred in other nations following periods of economic boom. The relative prosperity of the 1950s in America gave way to the social turbulence of the ’60s, which saw the culmination of not only the civil rights movement but the movements for women’s liberation and, of course, gay liberation.”

He concludes:

With the rise of individualism, it becomes harder and harder to damn those “not like us.” There is no “us” anymore, just many individuals, each with different values and priorities. Depoliticized markets ought to terrify [social] conservatives, for in them social change is born.

I’d add that in the U.S., the term “liberalism” has been co-opted by advocates of statist social engineering, but in much of the world “liberalism” still connotes opposition to economic regulation. Perhaps one reason for America’s polarization between the statist left and the social right—both opposed to individual freedom from government—is the Orwellian corruption of our political language.

More. Tweeted British Prime Minister David Cameron, head of Britain’s Conservative Party: “Congratulations to the people of Ireland, after voting for same-sex marriage, making clear you are equal if you are straight or gay.”