Via the Washington Post, 2016 could be a very difficult year for LGBT activists:
Less than eight months after the Supreme Court legalized same-sex marriage nationwide, LGBT advocates are on the defensive, playing whack-a-mole with a massive number of bills in state legislatures they say are meant to peel back LGBT rights…. Religious exemption and bathroom bills are leading many of those legislatures’ agendas….
Among the litany of horrors listed in this article, which draws on the Washington-based Human Rights Campaign as its primary source: state-level proposed legislation allowing clergyman not to perform same-sex weddings (a right they already have), allowing religious exemptions for small businesses that don’t want to provide services to same-sex weddings, and allowing schools and businesses to maintain shared same-sex restrooms (often with private facilities for those who identify as, but have not transitioned to, the opposite sex).
If these efforts are the nightmare scenario being used by the Human Rights Campaign to drum up support and fundraising, then things look pretty good for LGBT people.
Now, it’s not that some of these proposals aren’t offensive political posturing (while others, I’d argue, simply reaffirm constitutional liberties). But the one area that could truly be rights-denying would be state attempts to allow government officials to refuse to provide marriage licences to same-sex couples. However, that’s not being seriously considered; what we see instead are a few state proposals to allow individual officials to excuse themselves from issuing licences as long as the office itself makes licences available to all couples.
As I’ve noted before, government officials are responsible for following the law of the land, even when doing so is at odds with their own religious beliefs. They are public servants, not private, self-employed service providers. So codifying these opt-outs can be constitutionally dubious, although one might think informal arrangements or reassignments within county and state offices handling these issues might suffice.
More. Not mentioned in the article, which appeared prior to Justice Scalia’s passing, are some GOP presidential contenders (most emphatically Ted Cruz and Marco Rubio) pledges to appoint justices who would roll back the Supreme Court’s historic ruling in favor of marriage equality nationally. In that event, each state would be able to approve or deny the rights of same-sex couples to wed. Legal experts and Court-watchers think overturning Obergefell is highly unlikely—opponents of unrestricted legal abortion nationally have been trying to overturn Roe v. Wade for decades. But it shouldn’t be dismissed as impossible and is a legitimate reason for those supporting equality under the law to oppose such candidates.
Yet even here, “let the states decide” is a noticeable advancement over advocating to amend the Constitution to ban same-sex marriage across the nation.
21 Comments for “What Success Looks Like”
posted by Tom Scharbach on
Less than eight months after the Supreme Court legalized same-sex marriage nationwide, LGBT advocates are on the defensive, playing whack-a-mole with a massive number of bills in state legislatures they say are meant to peel back LGBT rights …
We all knew this would happen. It is called “massive resistance”. We’ll be fighting these battles for years, and it is just part of the bargain. Conservative Christians and other anti-equality forces are not going to give up, and anyone who thought they would is a fool.
Legal experts and Court-watchers think overturning Obergefell is highly unlikely—social conservatives have been trying to overturn Roe v. Wade <for decades. But it shouldn’t be dismissed as impossible and is a legitimate reason for those supporting equality under the law to oppose such candidates.
So why is Paul Singer pumping money into Rubio’s campaign, since Rubio has issued statement after statement about his intent to appoint Justices who will overturn Obergefell? And why aren’t homocons calling out Singer, supposedly the great white hope for pro-equality Republicans, for doing something that stupid and anti-equality?
I don’t think that Obergefell will be overturned, for the simple reason that Obergefell expands human rights, and is backed by a solid majority of Americans at this point.
But the math is there, and it is stark.
Using Rubio as an example, if he is elected and serves two terms, he is almost certain to nominate either three (Justices Breyer, Ginsburg and Kennedy) or (if the Republicans make good on their promise to block President Obama’s nominee to replace Justice Scalia)) four Justices.
Justices Breyer, Ginsburg and Kennedy provided three of the five votes for Obergefell. Justice Scalia, of course, voted against the majority, as did Chief Justice Roberts and Justices Alito and Thomas.
If Rubio, in turn, is successful in nominating Justices who are commited to overturning Obergefell, the votes will, sooner or later, be in place to do so. Only Justices Kagan and Sotomayor will be left from the Obergefell majority, with seven (Chief Justice Roberts, Justices Alito and Thomas, and four to-be-named Justices) in opposition.
I’m not joyful about Justice Scalia’s death, but I am glad to see that his death has precipitated a focus on the Court, and I hope that the Court will become a front-and-center issue in the coming campaign. It is about time that Americans woke up to the importance of Court appointments, and the increasingly partisan nature of nominations and appointments.
posted by Jorge on
Bathroom bills? No quotation marks?
Among the litany of horrors listed in this article…
“a [Georgia] Republican lawmaker wondered out loud whether gay children and teens really do need protection from bullying… LGBT advocates who heard this face-palmed.”
As did I.
“They say this is exactly the kind of careless sentiment that has helped foster a confusing patchwork of state laws that make LGBT Americans feel like second-class citizens in many states.”
Uh, okay, the LGBT advocates have their heads up their collective asses on that one. Oh, but I forgot, the Supreme Court has decided that having a fragile ego hurt is an unconstitutional injury. Maybe it’s a good thing the Senate is acting like a junta.
“HRC is watching a litany of religious exemption bills… LGBT advocates argue they only serve to poke holes in civil rights protections, furthering discrimination.”
It must be a really arcane and complicated argument if it can’t fit in the article. Or maybe it’s just a pathetic one.
“There are a few, not mutually exclusive theories on why 2016 is shaping up to be so difficult for LGBT advocates.”
I’ll give a passing grade to its explanation. If it went into more detail it would be either accused of giving a one-sided analysis, or have to fill up the entire article.
“Still, they’re not giving up hope. Warbelow believes educating voters on how little legal protections LGBT Americans have at the state and federal level can win people over to their side. “It’s both about shifting the laws, but also shifting attitudes to crate a more inclusive society,” she said.”
Hmm, too much emphasis on “legal protection,” not enough emphasis on legal redress, if you ask me. In other words, you need to explain why people should actually care about the lack of LGBT legal protections. Do something to counter the attitude of that state senator who said we can overcome bullying and come out stronger for it.
I otherwise largely agree with Mr. Miller.
We all knew this would happen. It is called “massive resistance”. We’ll be fighting these battles for years, and it is just part of the bargain. Conservative Christians and other anti-equality forces are not going to give up, and anyone who thought they would is a fool.
Bathroom bills, religious exemption laws, and pledging to appoint Justices who will overturn Obergefell are massive resistance? Oh, please. In these mewling goals you can see the truth of the matter about the so-called backlash: a squishy Rick Santorum cannot lead a reactionary revolution.
posted by Tom Scharbach on
Tom: We all knew this would happen. It is called “massive resistance”. We’ll be fighting these battles for years, and it is just part of the bargain. Conservative Christians and other anti-equality forces are not going to give up, and anyone who thought they would is a fool.
Jorge: Bathroom bills, religious exemption laws, and pledging to appoint Justices who will overturn Obergefell are massive resistance? Oh, please. In these mewling goals you can see the truth of the matter about the so-called backlash: a squishy Rick Santorum cannot lead a reactionary revolution.
I put “massive resistance” in quotes for a reason – it is an historical allusion. Think about it.
posted by Houndentenor on
You make it sound like sending marriage equality back to the states is no big deal. What that really means, however, is that a woman married to another woman from Boston who goes on a business trip to Dallas and then has a medical emergency is not married in Texas and her wife has no legal standing during that medical emergency. This isn’t some minor bit of trivia. This was the reality for gay couples (would you like specific stories because we all know someone who faced something like this or worse) before Obergefell.
And yes, Republicans tried to overturn Roe for decades but their lack of success wasn’t for lack of trying. They learned their lesson from more libertarian appointments like Souter and O’Connor and went for right wing Catholics exclusively from then on. Many abortion cases were 5-4 with strongly worded dissents. Why discount that. And the same is true of Romer, Lawrence and Obergefell. The denial on the part of gay Republicans is truly bizarre. Yes, those decisions were made because candidates they campaigned against won and appointed justices that voted for the rights of women and homosexuals. That could easily not have happened.
posted by Tom Scharbach on
Now, it’s not that some of these proposals aren’t offensive political posturing …
Of course, and that’s all they are for the most part.
What need is there for a law that exempts clergy from peforming same-sex weddings (already a constitutionally protected right that isn’t seriously questioned) other than to make a negative statement about the constitutional right of gays and lesbians to marry? What need is there for a law that exempts “small businesses that don’t want to provide services to same-sex weddings” from doing so under public accommodations laws in states where no law mandates that they must? Why concoct a law that exempts “small businesses that don’t want to provide services to same-sex weddings” from doing so under public accommodations laws when a “small business exemption” (as we have in employment and housing non-discrimination laws) would achieve the purpose without entangling the government in the constitutionally dubious practice of sanctioning one religious belief but not others? Why are the proposed bills laser-focused on same-sex marriages, when other forms of marriage (inter-racial, inter-religion, inter-denomination, remarriage after divorce) are objectionable to just about as many? And so on.
Start looking into the proposed bills, and it quickly becomes apparent that the bills are about making a statement of animus toward gays and lesbians rather than obtaining a practical result. The legislative history of the proposed bills (legislative hearings, statements in committee and in legislative debates) lays bare the animus, as does the laser focus of the bills on gays and lesbians, the blatant disregard for “equal means equal” and the uselessness of many of the proposed bills.
It would probably be more effective for conservative Christians to introduce annual legislative resolutions denouncing gays and lesbians as anti-God, anti-Christian, anti-Family, and anti-American, with ruffles and flourishes about abominations, disordered and perverted sex drives, sinfullness and so on. Tony Perkins, Brian Brown and Bryan Fisher could do the drafting. The resolutions would achieve the same practical result as most of the proposed bills, avoid long and expensive fights with the LGBT and business communities, require no implementation costs, and save the government the cost of protracted lawsuits.
[G]overnment officials … are public servants, not private, self-employed service providers. So codifying these opt-outs can be constitutionally dubious.
I quietly note that most of the proposed bills, which single out gays and lesbians for government-sanctioned discrimination not applied to other citizens, and specifically the so-called “religious freedom” bills, are constitutionally dubious under both the First Amendment and the Equal Protection precedent set by Lawrence, Romer, Windsor and Obergefell. If any make it into law, protracted litigation will follow.
Legal experts and Court-watchers think overturning Obergefell is highly unlikely — opponents of unrestricted legal abortion nationally have been trying to overturn Roe v. Wade for decades.
Roe v. Wade remains intact, as Houndentenor pointed out, because Justices Souter and O’Connor refused to joint the “originalists” in the cases that came before the Court. Both are now gone from the Court. Does anyone seriously doubt that a Court composed along the lines proposed by Senators Cruz and Rubio would overturn Roe, or so limit it as to effectively overturn it, given the opportunity? I don’t.
posted by Houndentenor on
No one can make any clergy person perform any wedding. Many will not perform interfaith marriages and no one makes them. No court would even hear such a case. It’s nonsense designed to play on anti-gay bigotry among right-right know-nothings to raise money and get out the vote. It’s revolting but it’s common among the GOP in most of the country.
posted by Tom Jefferson IIi on
— state-level proposed legislation allowing clergyman not to perform same-sex weddings
Does the law also allow clergymen (or women) not to perform any other sort of traditional, one man, one woman wedding that violates the creed of the applicable church, temple, mosque, etc?
—allowing religious exemptions for small businesses that don’t want to provide services to same-sex weddings,
Again, would this all for a small business owner to discriminate against opposite sex weddings? Also, are these exceptions a part of a larger civil rights bill, or are people tying to get exemptions for rules that do not exist?
—Now, it’s not that some of these proposals aren’t offensive political posturing..
Depending on how my above questions are answered, they may ALL be political posturing.
–opponents of unrestricted legal abortion
First off all, I had more then a few gay conservatives tell me that gay rights and abortion rights should be kept separate issues. If that be the case….
Second off all, VERY, VERY few Americans believe that abortion should always be illegal (and by “illegal” actual mean trying the women as murders) or always be legal (“on demand” is the bumper sticker slogan some have chosen to peddle).
Roe v. Wade (1973) and the more recent/relevant cases that do not get mentioned as much (harder to squeeze the case name onto a billboard) do not say that abortion has to always be illegal or legal.
Quite a few restrictions on abortion are entirely Constitutional. They may be good or bad policy, that is another matter, but the only time that abortion restrictions run into serious problems with the U.S. S. Court is when someone tries to ban early trimester abortions or impose a later ban that does not take into account the life/health of the mother.
BTW, if elected officials were the only folks responsible for abortion law, their would be quite a bit of widespread political chaos (setting aside the dispute over which legislative body would get to decide).
I am not sure that the American two-party system would be able to survive the chaos, and most of the justices have — despite many differences — placed a VERY high degree of value in preserving political stability and the American two-party system.
posted by Lori Heine on
This is what right-wing identity politics looks like. Social conservatism is the right-wing, mirror-image of gripe-group leftism. An increasing number of Americans see this, which I think is part of the reason that more and more people are declaring themselves independents.
Personally, I still say that it’s possible to overreact against the social right’s crusade for “religious freedom.” It’s basically a temper-tantrum by the kids who are losing the game. Will it do some damage? That depends on how hard it will be for future, saner generations to undo it.
My objection to “religious freedom” is not against the actual thing itself. It is against the Orwellian doublespeak version of it propounded by the religious right. As an Episcopalian, of course I think religious freedom is important. But my church is proving itself willing to go to great lengths to stand up for full equality in the church itself. Is our religious freedom to be honored and protected under the social conservatives’ scheme? I think not.
Special carve-outs do not meet the test of “equal means equal” that Tom S. often describes. I agree that we need to see past the rhetoric.
posted by Jorge on
I put “massive resistance” in quotes for a reason – it is an historical allusion. Think about it.
I’m not sure that will change much.
What that really means, however, is that a woman married to another woman from Boston who goes on a business trip to Dallas and then has a medical emergency is not married in Texas and her wife has no legal standing during that medical emergency.
Wouldn’t the 1990s federal HIPAA (Health Information Portability and Accountability Act) do something about that? Your health insurance from New York would tell Texas you’re married.
(BUZZ!)
Wouldn’t the Affordable Health Care Act do something about it? The federal regulations would require Little Sisters of the Poor in Texas to honor advance directives in New York identifying your spouse as the next of kin.
(BUZZ!)
Wouldn’t principles of Family Court jurisdiction apply, in which you would file a suit in the state in which you last resided for six months? Thus you file for a New York power of attorney during your spouse’s hospitalization in Texas, and it applies until your spouse has been hospitalized for six months. You then transfer the spouse to New York before the period expires.
(BUZZ!)
Wouldn’t federalizing civil unions take care of all that?
(Ding! Ding! Ding!)
(would you like specific stories because we all know someone who faced something like this or worse) before Obergefell.)
Speak for yourself. I don’t run in gay social circles. I only touch some of the activist ones.
What need is there for a law that exempts clergy from peforming same-sex weddings (already a constitutionally protected right that isn’t seriously questioned) other than to make a negative statement about the constitutional right of gays and lesbians to marry?
Shoring up the foundation when buildings are crumbling around you. Lots of things that I wouldn’t have seriously questioned in the past five years suddenly are no longer considered rights, even by the courts.
What need is there for a law that exempts “small businesses that don’t want to provide services to same-sex weddings” from doing so under public accommodations laws in states where no law mandates that they must?
If I recall, the city of Houston once passed a law mandating that medium-sized businesses publicly accommodate G, L, B, and T consumers according to the interpretations of a city agency. Each succeeding year, the size limit of the business was to decrease, all the way down to 15, which is not that large at all. It caused a huge bit of discomfort over bathroom politics and wound up being repealed. Other states might want to avoid such discomfort. I’m told there’s a Senator in Georgia who doesn’t want to talk much about gay bullying, and I can attest there’s a governor in New York who doesn’t want to talk much about conscientious objections.
As for Roe v. Wade, the decision itself seems to me to be premised on a rather simple concept: the rights to sexual privacy and medical privacy, and the authority to protect human life, must be measured based on supporting facts that are provable.
(There’s also a heavy dose of contemporary-mindedness in the Roe decision.)
That way of thinking underlies much of the reasoning in the two gay marriage decisions as well.
These days the opposition to Roe doesn’t carry the same disdain toward the separation of sexual privacy and state except from the most stridently conservative quarters. It attacks Roe’s actual weakness.
posted by JohnInCA on
That a lot of “buzz” over something that actually happened, time and again. You may think you have a laundry list of reasons it shouldn’t happen. But it did.
And “federalizing civil unions” is no more of a serious solution then civil unions were to start with. For one thing, 20+ state constitutional amendments banned civil unions. So even with congressional action, you would still have had to overturn those amendments in an Obergefel-like ruling. It’s almost like it was never really about “marriage”.
posted by Doug on
“Lots of things that I wouldn’t have seriously questioned in the past five years suddenly are no longer considered rights, even by the courts.”
Please provide examples.
posted by Tom Scharbach on
Tom: What need is there for a law that exempts clergy from peforming same-sex weddings (already a constitutionally protected right that isn’t seriously questioned) other than to make a negative statement about the constitutional right of gays and lesbians to marry?
Jorge: Shoring up the foundation when buildings are crumbling around you.
How does a law that does nothing shore up anything?
posted by Tom Scharbach on
Tom: I put “massive resistance” in quotes for a reason – it is an historical allusion. Think about it.
Jorge: I’m not sure that will change much.
In terms of long-term substantive result, you are probably right. The original “massive resistance” didn’t stop school desegregation, either. Slowed it down, created a lot of political turmoil, and made a lot of lawyers rich fighting the lawsuits back and forth, sure, but in the end, Brown v. Board and subsequent prevailed.
But the bills aren’t intended to obtain substantive results, when you get right down to it. The bills are political theater, intended to reinforce the conservative Christian message that gays and lesbians are anti-God, anti-Christian, anti-Family, anti-American and so on, and keep same-sex marriage alive as a political wedge issue as long as possible.
I have no doubt at all that conservative Christians will achieve that goal.
posted by Tom Scharbach on
A side note: The Washington Post has a fascinating article summarizing differences in polling among Republican demographics since December. The Post article suggests that Trump has largely won over the more moderate demographics of the party despite the concerted effort by the Republican “establishment” (most recently, South Carolina Governor Nikki Haley) to embrace Rubio and the candidate of choice. We’ll have to see how this works out after the SEC primaries, of course, but the Quinnipiac polling suggests that the “establishment” effort has not been working, and may not, even after Bush and Kasich fade from the political scene.
posted by Jorge on
How does a law that does nothing shore up anything?
If by your standards it does nothing, then it is no cause for opposition.
…
Please provide examples.
I already gave one non-specific example, as I have already said my piece about New York Governor Cuomo by now. If you’re familiar with my beef on that and the way things have turned out, I think your impressions of that example alone would be a better indicator of what more there is to discuss.
posted by Tom Scharbach on
Tom: How does a law that does nothing shore up anything?
Jorge: If by your standards it does nothing, then it is no cause for opposition.
That’s absurd. Enacting meaningless, purposeless laws breeds disrespect for the law. That is more than enough reason to oppose them.
posted by Jorge on
I think you tend to go a little farther than that, Tom. We are not regularly graced with Tom S. posts arguing against disrespect for the law as an institution.
You tend to argue against disrespect for specific laws, specific legal and constitutional principles. You often assert a principle of “equal means equal”. I tend to argue that in doing so you engage in a misnomer. I believe the principle as you define it is not basic or fundamental to either individual or societal well being. This is not a meaningless, purposeless contest.
So to return to your original question, either the law does nothing, or the law shores up a good principle by breeding a disrespect for a bad principle.
posted by Tom Scharbach on
I think you tend to go a little farther than that, Tom. We are not regularly graced with Tom S. posts arguing against disrespect for the law as an institution.
I’ve written quite a number of comments on that topic over my years on IGF, mostly in the context of laws that offend the principle of “equal means equal”. My view is that specific laws that are unjust foster disrespect to the law in general, as do laws that serve no purpose.
You often assert a principle of “equal means equal”. I tend to argue that in doing so you engage in a misnomer.
If you want to understand my thinking about “equal means equal” and the proper role of government, take a second and read over this excerpt from an analysis that I wrote over a decade ago:
You may not consider any or all of them important or essential to a just society, as I do.
I believe the principle as you define it is not basic or fundamental to either individual or societal well being.
It is not my role to change your thinking, but instead to state as clearly and consistently as I can what I believe, and give the reasons why I believe what I do. You can make of it what you will.
posted by Doug on
Your statement was “lots of things” and then you say one non-specific example. Still waiting for lots of examples.
posted by Jorge on
Your statement was “lots of things” and then you say one non-specific example. Still waiting for lots of examples.
Not quite. I did say my point before you asked. It is worth an evaluation.
Doug, we’re barely on speaking terms, figuratively speaking (and they’re pretty bad speaking terms). There is no reason for me to speak of things in a manner and time of your choosing if you have so little to say.
posted by Jorge on
The Post article suggests that Trump has largely won over the more moderate demographics of the party despite the concerted effort by the Republican “establishment” (most recently, South Carolina Governor Nikki Haley) to embrace Rubio and the candidate of choice.
I’ll admit to being much more confused over what’s happening in the Democratic primary.
“This increase came despite Trump still being the candidate who the largest number of Republicans find unacceptable.”
I am sure that number would be even greater if you included right-leaning independents. It’s an irrelevant theoretical, but it will create some bite in the general election.