The traditionalist and libertarian wings of the conservative movement have long disagreed on the issue of gay marriage, but an ideologically diverse panel at the Conservative Political Action Conference on Thursday was able to find common cause amid the fault lines. …
Townhall.com’s Guy Benson and the Cato Institute’s Ilya Shapiro, both of whom support same-sex marriage, broke with liberals on whether dissenters should be forced to accommodate same-sex weddings such as by baking cakes, taking pictures or performing ceremonies.
At Townhall.com, Matt Vespa writes: CPAC’s Marriage Equality Panel, Something That Could Never Happen At A Progressive Conference:
Benson aptly noted that a panel such as this could never have been conducted at a left wing conference without boos, hissing, and other disruptive shenanigans.
And video here.
This “common ground” won’t please LGBT progressives, and many on the right support efforts by Ted Cruz and, to a slightly lesser extent, Marco Rubio, to roll back marriage equality. But the tenor and tone at CPAC is still progress, as is the fact that CPAC accepted the Log Cabin Republicans among the many official co-sponsors with a booth, which in years past was denied to both Log Cabin and the now-defunct GoProud at the behest of anti-gay conservatives at the Heritage Foundation and like-minded groups.
More. John Kasich tells businesses why they shouldn’t discriminate against gay people. It sidesteps the constitutional, and moral, issue of forcing independent business providers to engage in expressive behavior regarding same-sex weddings that violates their religious convictions, which may put me and fellow libertarians to the right of Kasich. Not that Kasich’s position will appease frothing-at-the-mouth Dan Savage.
21 Comments for “CPAC 2016: Progress on the Right”
posted by Doug on
‘ which may put me and fellow libertarians’. How can you be a libertarian, Stephen, when you only want to allow discriminate against the LGBT community and not others?
posted by Lori Heine on
As a libertarian, I can find nothing whatsoever wrong with what Kasich said. It’s called reasoning with people and using persuasion. Libertarians are all for it, and we’re trying to get people to rely on it more often instead of coercion.
He wasn’t “sidestepping” anything.
posted by Tom Scharbach on
The argument you put forth, yet again, and the counter-arguments that most of the rest of us put forth (e.g. religion-neutral, issue-neutral, class-neutral) have become routine. So I would like to look at the question from a different direction, the changes that the proposed laws will make with respect to protection of religious freedom in the United States.
Religious freedom is protected, first and foremost, but the First Amendment. The amendment has two clauses protecting religious freedom, the “establishment” clause and the “free exercise” clause.
The “establishment” clause prohibits the government from setting up an official church, such as The Church of England, or requiring citizens to pay taxes to support churches (as is the practice in Germany), or financially supporting parochial schools (as is the case in Canada), or requiring a religious test for public office (as was common during the colonial period), or permitting the government to impose school-sanctioned public prayer in public schools, among other things.
The “free exercise” clause, which is at issue in the “baker, florist and photographer” controversy, prohibits the goverment from “prohibiting the free exercise [of religion]“.
Five major cases and one federal law define the parameters of government interference with “free exercise” at this point:
Reynolds v. United States (1878), in which a Mormon asserted religious duty as a defense against a criminal charge of bigamy, distinquished between the right to hold a religious belief, which is absolute, and the right to act on a religious belief, which is not absolute: “Freedom of religion means freedom to hold an opinion or belief, but not to take action in violation of social duties or subversive to good order.” The Court upheld the right of the government to regulate some religious practice (e.g. bigamy, human sacrifice, suttee, and so on). To rule otherside, the Court opined “would be to make the professed doctrines of religious belief superior to the law of the land, and in effect permit every citizen to become a law unto himself. Government would exist only in name under such circumstances.”
Sherbert v. Verner (1963, Justice Brennan) held that the government may enact a law imposing a “substantially burden” (that is, require an individual to forego a religious practice, whether by imposing a penalty or withholding a benefit) on an individual’s “free exercise” if and only if (1) the government has a “compelling interest” that justifies the infringement, and (2) the law is “narrowly tailored” (that is, no alternative form of regulation can avoid the infringement) the government’s interest.
Yoder v. Wisconsin (1972, unanimous), extended the Sherbert test to laws that were “neutral on its face”, and clarified the “substantial burden” leg of the Sherbert test, requiring evidence of true and objective religious practices, instead of an individual creating personal standards on a whim.
Employment Division v. Smith (1990, Justice Scalia) narrowed the “compelling interest” test, holding that no such interest was required regarding a neutral law of general applicability that happens to affect a religious practice, as opposed to a law that targets a particular religious practice (which continues to require a “compelling interest”).
In direct response to Employment Division, Congress passed the Religious Freedom Restoration Act (RFRA) in 1993, seeking to restore the “compelling interest” test:
The operative language of RFRA essentially restates the Sherbert/Yoder test: “Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability, except [that] Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person (1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling governmental interest.”
City of Boerne v. Flores (1997, Justice Kennedy), struck down the provisions of RFRA that forced state and local governments to provide protections exceeding those required by Employment Division, on the grounds that while the Congress could enforce the Supreme Court’s interpretation of a constitutional right, the Congress could not impose its own interpretation on states and localities. Accordingly, state and local government need not demonstrate a “compelling interest” with respect to laws of general application unless state law so provides, but the federal government must do so. A number of states have enacted RFRA-like laws reinstating the “compelling interest” test in those states.
A number of “baker, florist and photographer” cases have been heard in state and federal court, at various levels, in recent years. The cases have applied the “compelling interest” test, or not, depending on the laws of the state, but in none of the cases have the complaining business owners been able to establish that the public accommodations laws in question created a “substantial burden” on the business owner’s “free exercise” of religion.
So that’s the state of the law at present, stated in broad terms.
I have not looked at all of the proposed laws, but I have looked at the federal-level First Amendment Defense Act and quite a number of the proposed state laws. What the proposed laws seem to have in common is that the proposed law eliminate the “substantial burden” requirement from the Sherbert/Yoder test in the case of same-sex marriage (and in that case alone), as is evident in the operative language of the FADA:\
We can debate (and have debated) the wisdom of laws that target gays and lesbians, but no one else, for government-sanctioned special discrimination in the case of same-sex marriage, but I would like to focus attention on the means being used to do so, that is to enact laws that eliminate the “substantial burden” requirement from the Sherbert/Yoder test.
I think that this is both wrongheaded and dangerous. The proposed laws, it seems to me, reduce “religious freedom” to personal opinion, and “in effect permit every citizen to become a law unto himself”, to echo the warning expressed in the Reynolds decision.
posted by Tom Scharbach on
John Kasich tells businesses why they shouldn’t discriminate against gay people. It sidesteps the constitutional, and moral, issue of forcing independent business providers to engage in expressive behavior regarding same-sex weddings that violates their religious convictions, which may put me and fellow libertarians to the right of Kasich.
Kasich, it seems to me, is clearly distinguishing between religious organizations, on the one hand, and businesses serving the public, on the other, and coming out against the plethora of proposed “religious freedom” laws purporting to protect such businesses under the guise of “religious freedom”:
If I’m right in my interpretation of his remarks, that does align you with the conservative Christian wing of the Republican Party in this respect, and distances Kasich from that wing.
posted by Houndentenor on
Again, if libertarians want to make a case against public accommodations laws that affect privately owned businesses, then they should make that case. But a special carve-out for one particular religion to discriminate against one particular minority is not acceptable. Moreover, to want that special privilege for Christians who are still fighting against the rights of that minority is especially illogical.
posted by Mike in Houston on
As Lori has pointed out ad nauseum, Stephen’s arguments are not “libertarian” any more than the trumped up “religious liberty” nonsense which is nothing more than a smokescreen for LGBT discrimination without consequence. (you know — the good old days when America was “great”)
posted by Tom Scharbach on
Well, I do wonder, from time to time, whether the Republican-aligned “libertarians” like Stephen would be as enthusiastic in their support of a conservative Muslim who refused to serve the kafir on religious grounds, or an Orthodox Jew who refused to rent a room to Gentiles on religious grounds.
I do know of an instance of the latter, an Orthodox Jew who keeps a small establishment for use by Orthodox Jews in a tourist area of Wisconsin. Because the units have kitchen facilities, the owner will rent the units only to observant Jews who agree to follow kashrut in the unit. The establishment is small enough to fall under the threshold for public accommodations laws governing lodging. I gather that his establishment is one of several in Wisconsin, all of which fall under the threshold. All serve a niche market, and are clear about the rules.
I wonder, though, if Stephen and his fellow “libertarians” who are pounding the drum so loudly on behalf of conservative Christians who don’t want to serve gays and lesbians would come to the defense of such establishments should one be found to be at or over the threshold.
I doubt it. My guess is that we would hear a very loud silence, as we do with respect to small business owners who would just as soon not provide services, “expressive” or otherwise, to inter-religious, inter-denominational or inter-race marriages, or remarriages after divorce. But my thoughts are unkind.
posted by Tom Scharbach on
Well, I do wonder, from time to time, whether the Republican-aligned “libertarians” like Stephen would be as enthusiastic in their support of several small establishments I know about for use by Orthodox Jews in tourist areas of Wisconsin.
The establishment rents units with cooking facilities. Because the units have kitchen facilities, the owners will rent the units only to observant Jews who agree to follow kashrut in the kitchen. The establishments are small enough to fall under the regulatory threshold for public accommodations laws governing lodging. But the owners do, without question, discriminate on the basis of religious practice, and, at least arguably, on the basis of religion itself.
Would Stephen and his fellow “libertarians” (who are pounding the drum so loudly on behalf of conservative Christians who don’t want to serve gays and lesbians) do likewise in defense of this establishment should the establishments be found to be at subject to public accommodation laws?
My guess is that we would hear a very loud silence, as we do with respect to small business owners who would just as soon not provide services, “expressive” or otherwise, to inter-religious, inter-denominational or inter-race marriages, or remarriages after divorce.
But my thoughts are unkind.
posted by Lori Heine on
The same thing is being repeatedly asserted, again and again. Yet it is ONLY being asserted–and never proved.
HOW is this ONLY a special carve-out for anti-gay religious conservatives?
Religious groups that want to feed the homeless, or bring them in off of the streets in perilous weather, are ALSO being deprived of their religious freedom. I ruffled somebody else’s feathers about this the other day, and she became so micro-aggressed that she had to seek safe space and would not continue the discussion.
Chefs, who work in restaurants, are being cited by municipalities for trying to feed the homeless. The cities don’t have a leg to stand on when they try to claim that these chefs are not competent to do this. If they couldn’t prepare food under sanitary conditions, they’d be standing in the breadline themselves–because they wouldn’t have jobs.
If we broaden the discussion on religious freedom, those who can think of no higher use for it than behaving like little snots and snubbing gays will be put to shame. Eventually they’ll shut the hell up and go away.
I prefer this method of dealing with them to always seizing a club and hammering them over the head with it. Invoking Selma in 1955 does nothing but toss a smoke-bomb into the discussion.
posted by Michael Morrison on
Government should be neutral, you say, yet somehow there is also a “compelling interest”?
Government has only one reason even to exist, and that is to protect the rights of the people it supposedly governs.
“Rights” are inherent, or they are not rights. Therefore, no one has a “right” to the life, liberty, or property of any other person.
Therefore, freedom of choice is a right, and does not violate any right of any other person.
Mis-called progressives get so het up when anyone tries to impose a religious opinion by law, but joins in when the call is for imposing a mis-called “progressive” opinion by law.
posted by Tom Scharbach on
The same thing is being repeatedly asserted, again and again. Yet it is ONLY being asserted–and never proved. HOW is this ONLY a special carve-out for anti-gay religious conservatives?
If it looks like a duck, walks like a duck, and quacks like a duck, it is a duck.
Look at the First Amendment Defense Act, as an example: “Notwithstanding any other provision of law, the Federal Government shall not take any discriminatory action against a person, wholly or partially on the basis that such person believes or acts in accordance with a religious belief or moral conviction that marriage is or should be recognized as the union of one man and one woman, or that sexual relations are properly reserved to such a marriage.”
The FADA protects “religious freedom” only in the case of opposition to same-sex marriage and eliminates the Sherbert/Yoder “substantial burden” requirement for exemption. FADA, accordingly, creates double layers of special discrimination against gays and lesbians, permitting special, government-sanctioned discrimination in the case of same-sex marriage but in no other case, and elminating the “sustantial burden” requirement in the federal RFRA in the case of same-sex marriage but in no other case.
Can you think of any reason to set up special discrimination and eliminate the “burden” requirement in the case of opposition to same-sex marriage and in no other case except “a special carve-out for anti-gay religious conservatives”? I can’t, unless you count shameless pandering to the conservative Christian Republican base as a reason.
If we broaden the discussion on religious freedom, those who can think of no higher use for it than behaving like little snots and snubbing gays will be put to shame. Eventually they’ll shut the hell up and go away.
I doubt that “they’ll shut the hell up and go away” under any circumstances, and neither they nor the politicians who pander to them have shown any interest whatsoever in broadening the discussion of religious freedom beyond protecting opposition to same-sex marriage.
If think you and I are beating a dead horse, Lori, in our calls to broaden the discussion.
posted by Lori Heine on
You have not explained how this overreach is going to be passively accepted by the courts, and by the majority of people in this country.
All you’re doing is repeating, over and over, that this is what social conservatives are attempting to do.
I do not agree that they will get away with it. And I see religious freedom as too important for the discussion to be clamped down into a simple and inarticulate “no, no, no!”
The left is doing exactly what the social right hoped that they would do. The effective way of dealing with them is to call their bluff.
posted by Tom Jefferson 3rd on
CPAC has not been especially kind to gay Republicans and their straight allies. So, in that sense, it’s nice to see a panelist conservative back gay marriage.
The fact that David Boaz backs gay marriage should not be surprising. He has done so since the 1990s, as a libertarian party supporter. It is noteworthy mainly because of a internal conflict within the Cato Institute.
I think that you can find plenty of progressives and centrists who believe we should protect religious freedom and civil rights.
posted by Kosh III on
This progressive green is pleased to see any progress on equality even if it is the tiniest of baby steps. Cruz can go frak himself.
Still, if you are offering a service to the public you should offer to ALL the public.
posted by Mike in Houston on
I applaud the progress — welcome to 1992.
posted by JohnInCA on
According to my 30-second google search, both Shapiro and Benson live in Washington D.C., where they’ll never have to witness or be subject to the policies and laws they’re endorsing.
So to retreat to the old refrain: where are the gay Republicans who actually live in Republican/conservative states/cities?
But hey, if “tolerance” is supposed to mean “I won’t say or do anything when you discriminate against me†”, and suddenly “tolerance” is a virtue on the right, then maybe they should extend some of that “tolerance” to people that discriminate against Christianity?
________
†And remember, going online and complaining about the place on social media is terribly mean and double-plus ungood.
posted by Tom Scharbach on
So to retreat to the old refrain: where are the gay Republicans who actually live in Republican/conservative states/cities?
Keeping very, very quiet, at least in Republican circles, would be my guess.
posted by Tom Scharbach on
Beyond bizzare: A new LCR attack ad is spewing doubt about Trump’s allegiance to Republican orthodoxy on marriage equality in order to help sink him.
I wonder if CPAC didn’t rub off on LCR, rather than the other way around.
posted by Tom Jefferson 3rd on
I was at a LGBT Midwest conference some years back, and their were some interesting breakout sessions with folk who were Republicans, Libertarian, Green or none of the above.
I’m not saying that all gay conferences have such political or party diversity, or that people in the audience are all familiar with tact and manners. However, the picture that Stephen and company want to paint is dishonest and tacky.
posted by JohnInCA on
IIRC, Republican presidential candidates, for the last four elections (2000 – 2012), regularly get between 20% and 30% of the “gay” vote. So while the demographic does overwhelmingly vote Democrat, there’s a sizable minority (or the minority) that does not.
posted by Tom Jefferson 3rd on
If we had more political leadership in America, and a halfway decent mainstream press, we would not have ths BS narrative about how we cant defend religious freedom and civil rights.