Competing Headlines

Take One

Anti-LGBT adoption bill sent to South Dakota governor. (State law allows adoption agencies to discriminate against same-sex couples.)


Liberals Call SD Religious Freedom Adoption Law ‘Anti-LGBT’
. (State law allows religious nonprofits to follow principles of their faith.)

Honorable Mention:

LGBTQ Advocates Fear ‘Religious Freedom’ Bills Moving Forward in States. (Count on NPR online to use scare quotes around a pivotal constitutional right that’s out of favor on the left.)

Take Two

Amid Dramatic Cuts, HIV/AIDS Funding Spared in New Trump Budget. (Despite our best efforts, we really couldn’t spin this as anti-LGBT; a source does say “What’s unknown is how this might affect a whole range of other programs that provide HIV support.”)

GOP health plan’s ‘devastating’ impact on those with HIV. (One way or another, Trump will imperil the HIV-positive.)

Honorable Mention:

Trump budget slashes State Department, USAID funding. (One of the revolving marquee headlines this weekend at Washington Blade online, apparently for no reason other than AID at first glances looks like AIDS.)

32 Comments for “Competing Headlines”

  1. posted by Tom Scharbach on

    The South Dakota adoption law is better than laws proposed by Republicans in other states, for the following reasons:

    (1) Although the law is hawked as “An Act to provide certain protections to faith-based or religious child-placement agencies …” the law is not in and of itself a “religious freedom” law. The actual words of the law protect both “religious belief” and “moral conviction” which need not be religious in nature. In my view, that is a good thing, because religious conscience should not be given preference over non-religious conscience under law.

    (2) Despite the legislative history (which makes clear that the law was motivated primarily by the intent to allow child placement agencies to discriminate against LGBT couples), the law is not specifically targeted at LGBT couples. That’s good thing, in my view. The law permits state-funded child placement agencies to discriminate against homes in which religion and/or a particular religion and/or no religion is practiced, against interfaith and/or interdenominational homes, against single-parent homes, against homes in which the parents are not married, against married couples in which one of the spouses has been divorced, against homes in which one or both parents are disabled, and so on.

    (3) The only limitation on the ability of child placement agencies to discriminate is that the law does not allow child placement agencies to “decline to provide a service on the basis of a person’s race, ethnicity, or national origin”. In my view, that is unfortunate, because it elevates certain religious beliefs and/or moral convctions over others (e.g. the religious belief and/or moral conviction that a child should be raised in the Catholic faith but not the Jewish faith is protected, but the religious belief and/or moral conviction that an African-American child should be raised in by African-American parents rather than white parents is not protected).

    I run laws of this type through a three-part “equal means equal” test. Is the law “religion-neutral”, in that the law protects non-religious conscience as well as religious conscience on an equal footing? Is the law “issue-netural”, in that the law does not favor a particular belief/conviction over other substantially similar beliefs and/or convictions and applies equally to all relevant beliefs and/or convictions? If the law “class-neutral”, in that the law is not targeted at a particular class of citizen?

    The South Dakota law doesn’t pass the “equal means equal” test, but it is better than most being proposed because it meets the “religion-neutral” and “class-neutral” parts of the test. How the law will fare in the courts, given the legislative history and given its preference for some religious beliefs and/or moral convictions over others, I can’t predict.

    Reply
    • posted by John in Chicago on

      So you favor legislation designed specifically to allow discrimination against gay citizens as long as it’s broad enough in the rights that it grants that this fact is obscured (or so the legislators hope). At any rate, and assuming that adoption agencies in South Dakota are at least in part subsidized by the tax payers, the inclusion of religious considerations is clearly unconstitutional. Furthermore, any distinction between religious belief and moral conviction is utterly specious, at least unless a traditional religious text clearly and explicitly enjoins its adherents not to engage in a specific activity and that’s definitely not the case here, if it’s ever true of the absolute moral and ethical hodge-podge known as the Bible. But why the exclusion of religious belief/moral conviction in regard to race and ethnicity, when plenty of religious Americans have always been adamant that God intended to keep the races of mankind separate? Obvious political correctness on the part of the South Dakota legislature and, in effect, an appeal to judges that they become theologians, distinguishing legitimate religious beliefs from the illegitimate. What does it all come down to? It seems to me that libertarians like yourself haven’t a prayer until Americans once again accept an order in which black customers can be denied a seat in a restaurant or until the jurisprudence of this country has become completely incoherent.

      Reply
      • posted by Tom Scharbach on

        So you favor legislation designed specifically to allow discrimination against gay citizens as long as it’s broad enough in the rights that it grants that this fact is obscured (or so the legislators hope).

        Favor? No. The South Dakota law is shitty public policy for all the reasons you state, as well as others. But the question of whether a law is shitty public policy is not the question I was addressing.

        As I’ve made clear many times (at least 50, and closer to 100), I do not have a legal/constitutional problem with “religious freedom” legislation that meets three tests to ensure equal treatment under the law — “religion neutral”, “issue neutral” and “class neutral”. The three tests are discussed in the leading comment, so I won’t explain them again.

        So let’s look at the interplay of the Religious Freedom Act of 1993 with the Civil Rights Act of 1964 with that in mind.

        The Religious Freedom Act of 1993 (which permits religious exemption to law if a law creates a “substantial burden” upon religious exercise unless the government has a “compelling interest” in the purposes of the law and that law is narrowly drawn to reflect the “least restrictive means” of achieving that purpose) would meet the “equal means equal” test but for one thing — RFRA does not allow conscience exemptions that are non-religious in nature, and hence is not “religion-neutral”, favoring religious conscience over moral conscience that is not religion-based. Otherwise RFRA, which is applicable to all federal laws, and does not establish special exemptions based on class, is not objectionable to me on legal/constitutional grounds.

        RFRA, when applied to the Civil Rights Act of 1964, grants exemption for religious objection to the Act’s non-discrimination and public accommodations provisions, permitting discrimination on the basis of race, national origin, ethnicity, gender and so on. I think that is poor public policy, to day the lest, but RFRA does meet the “issue neutral” and “class neutral” tests.

        Legislation granting exemptions to non-discrimination laws leads to results that you might not like, and I don’t like, but that doesn’t address the constitutional issues.

        But why the exclusion of religious belief/moral conviction in regard to race and ethnicity, when plenty of religious Americans have always been adamant that God intended to keep the races of mankind separate?

        In my opinion, the South Dakota law falls flat on its ass, constitutionally, by favoring one religious belief and/or moral conviction over another, as I tried to make clear. And I have no doubt that the South Dakota Republicans who enacted this bill are trying to stay out of political hot water by doing so. But the venality and hypocrisy of the politicians who enacted this legislation is not relevant, in my view. The words of the law are what count.

        It seems to me that libertarians like yourself …

        Good, John, you are going to cause Stephen to stroke right out if you do that again. Doesn’t bother me, but Stephen is getting along in years and I don’t want his head to explode.

        Reply
      • posted by Tom Scharbach on

        Good, John, you are going to cause Stephen to stroke right out …

        Should read “God, John” not “Good, John”. Despite the typo, I don’t want Stephen to stroke out.

        Reply
    • posted by TJ on

      South Dakota should have simply had a blanket exemption for private adoption (with a religious or moral affiliation) agencies and civil rights laws.

      It should have come as part of a bill to add LGBT to SD civil rights laws (they only have limited protection in a few SD cities).

      As it stands now, state law doesn’t deal with LGBT discrimination and hence the adoption agency bill is largely smoke and mirrors.

      Reply
      • posted by Tom Scharbach on

        South Dakota should have simply had a blanket exemption for private adoption (with a religious or moral affiliation) agencies and civil rights laws.

        Why the requirement of a “religious or moral affiliation”? It seems to me that any agency, religious, moral or not, that takes government money to do a job for the government should do the damn job. Period.

        The problem with “faith based” government suppliers is that they are always looking for an out from requirements that all citizens be treated equally when providing services.

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        • posted by TJ on

          The State – in telling a private group to do its damn job – cannot violate the First Amendment.

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          • posted by JohnInCA on

            Generally speaking? Sure.

            But if the state is paying someone to do work on the state’s behalf? Then yeah, the state can attach strings.

      • posted by JohnInCA on

        South Dakota should have simply had a blanket exemption for private adoption
        I might be mistaken on this, but I believe that if an agency is truly private, it doesn’t need any exemption and can discriminate along any lines it wants.

        Where they run into problems is when they’re publicly funded (and thus not really private). That is, they want to discriminate against us using our own dollars.

        Reply
      • posted by Tom Scharbach on

        I might be mistaken on this, but I believe that if an agency is truly private, it doesn’t need any exemption and can discriminate along any lines it wants.

        As a general rule, adoption agencies are required to be licensed by the state, whether or not funded by the state.

        South Dakota seems to follow that legislative schema, separating the licensing process from “participation in a state benefit program”, suggesting that child placement agencies may be licensed without receiving state funding.

        Licensing, of course, entails state-required minimum standards that must be met to obtain/renew a license, so I’m not sure that it makes much difference, because either way the state is sanctioning discrimination if the state permits agencies to disregard state non-discrimination laws.

        Reply
        • posted by JohnInCA on

          Look, I don’t have a problem with a “Jews for Jews” adoption agency. I just have a problem when they use my money to do it.

          And I’m pretty sure that’s how the law is in most (if not all) states. It’s not any law that requires any agency to do placements with gay people, it’s the non-discrimination policy they agree to when they contract with the state.

          Reply
      • posted by Tom Scharbach on

        I don’t have a problem with a “Jews for Jews” adoption agency. I just have a problem when they use my money to do it.

        Most states provide statutory processes for private (that is, direct biological parent to adoptive parent) adoptions, and do not require licensing for private adoptions.

        I provided pro bono legal work for a group arranging private adoptions at no cost to the biological parent for a number of years, so I am familiar with the process in one state, but I think that all states permit private adoptions on a substantially similar basis.

        We operated exactly as you describe, arranging adoptions of children of Jewish women into Jewish families, where the children could be raised as Jews and not lost to the Covenant.

        The state was involved in several ways. Before the adoption could be completed, DCFS met with the adoptive parents, did a home inspection and made a finding that the adoptive parents met state standards for parental fitness. The courts were involved in termination of parental rights (biological father and mother) and in issuing the necessary court orders to legitimize the adoption.

        But state involvement was minimal, and none of the parties involved (the group arranging the adoption, the biological parents, and the adoptive parents) were acting as agents of the state at any point in the process.

        However, once the state is involved in licensing an agency, the agency becomes, in a legal sense, an agent of the government, acting in the stead of the state, and at that point I get off the “right to discriminate at will” boat. I don’t see any reason why a state government should license any adoption agency that discriminates on the basis of religion, race, ethnicity, sexual orientation and so on.

        The picture would be different if a state had a government adoption agency, and did not deputized non-governmental agencies to arrange adoptions. But I don’t know of any states where that is the case.

        But I do understand the point you are making, and I suspect that most Americans would be satisfied if the state drew the discriminate/can’t discriminate line at payment. And that seems to be the line that court decisions have been drawing.

        I don’t think that it is good public policy, but we have a lot of laws that I think are poor public policy.

        Reply
      • posted by Jorge on

        Look, I don’t have a problem with a “Jews for Jews” adoption agency. I just have a problem when they use my money to do it.

        I have the exact opposite opinion. Because society is WASP-, male-, and hetero-normative, I accept the premise that so-called “neutral” policies are highly likely to be discriminatory in effect without a strong antidote. Not that I have any qualms about throwing the melting pot on anybody and everybody, but it must be with an adult’s permission; people should have the right to say no. When it comes to adoption and the termination of parental rights, having whether or not a family is harmed depend on their race, religion, sex, or sexual orientation is unacceptable and illegal. Private and public entities alike are required to take drastic measures to avert discrimination.

        This logically leads to an infinite loop of bad ideas to correct even more bad ideas. I can only agree with disparate impact discrimination law in small doses, but it is the law of the land.

        Reply
  2. posted by Tom Scharbach on

    HIV is not a “gay disease” and programs to prevent/treat HIV infection are not “gay programs”. Reduction in funding to prevent/screen/treat HIV infection are short-sighted in my view, because the rate of HIV infection will increase, creating higher costs in the long run, and screening/treatment will be less available, increasing the death rates, but the funding cuts are in line with conservative “save now, let the grandkids pay up later” political philosophy.

    Reply
  3. posted by TJ on

    leave it to the far right to take a pivotal Constitutional right and piss on it.

    Reply
    • posted by Josh on

      Because religious freedom protections should only apply to what takes place inside a house of worship or the privacy of your home, as some on the left argue.

      Reply
      • posted by TJ on

        I have explained how to protect religious freedom and civil rights. Other people here, have done so as well.

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      • posted by John in Chicago on

        That and the freedom to persuade as many as they can of their rectitude. Nobody on the left seeks to curtail that right of theirs. Thing is, as any idiot ought to be able to recognize, that religious belief is and always has been a jungle of conflicting opinions. Allow religion to infringe upon the “public sqaure” more than it has been allowed so far In this country and the result would inevitably be the dominance of one religious creed over all others and constant social strife as a consequence.

        Reply
  4. posted by Jorge on

    It’s a good thing for the Trump administration that it’s been going on and on and on about cutting costs recently, and all but declared war on the media, or they’d be in some real trouble by the propagandists. At least they have competing headlines.

    HIV is not a “gay disease” and programs to prevent/treat HIV infection are not “gay programs”. Reduction in funding to prevent/screen/treat HIV infection are short-sighted in my view, because the rate of HIV infection will increase, creating higher costs in the long run, and screening/treatment will be less available, increasing the death rates, but the funding cuts are in line with conservative “save now, let the grandkids pay up later” political philosophy.

    Well then, as someone who spends very little in the gay bubble, I have to ask what kind of efforts the federal government is making on prevention in our own country. Because this is probably a good example of something that’s not working. Months, maybe years at a time can pass without me hearing anything about HIV prevention. Maybe the NYC Condom program, but that’s about it. Granted, I’m not the audience that one needs to reach for education. But it might be a good idea to remind the over-24 crowd a few things about risk and vigilance.

    I am very worried about cutting HIV/AIDS funding overseas. Still, we have to expect results eventually–I *would* like to know the progress.

    Reply
    • posted by Jorge on

      Well then, as someone who spends very little in the gay bubble,

      Very little *time* in the gay bubble.

      Reply
  5. posted by Tom Scharbach on

    Because this is probably a good example of something that’s not working.

    I wouldn’t be too quick with that judgment, Jorge. Infection rates seem to be declining, even though rates of testing have increased significantly.

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    • posted by Jorge on

      2002-2011?

      My impression isn’t that old.

      “From 2002-2011, the annual number of HIV diagnoses decreased in persons with infection attributed to injection drug use or to heterosexual contact (Table 1). Diagnoses attributed to male-to-male sexual contact remained stable overall, increasing among males aged 13-24, 45-54, and 55 years or older, and decreasing among males aged 35-44 years (Table 2). The largest change (132.5%; EAPC = 10.5) was observed among males aged 13-24 years.”

      Fine, you win.

      And you also lose. HIV isn’t a “gay disease”? That needs tweaking.

      Reply
    • posted by Tom Scharbach on

      And you also lose. HIV isn’t a “gay disease”? That needs tweaking.

      Yeah, well, HIV/AIDS is God’s way of punishing sodomites, right?

      You might want to take a look at the current global situation, Jorge. I think that it might open your eyes, particularly since you expressed concern about HIV/AIDS overseas.

      I’m old enough to have lived through the 1980’s plague, when friends were dying right, left and center, and religious monsters applauded, because HIV/AIDS vectored primarily though MSM. But the pattern of HIV/AIDS vectoring in the United States and Western Europe is not the whole of the story globally, or even typical — in other areas of the world, the vectors are quite different.

      In Eastern Europe and Russia, for example, which have high rates of infection, over 50% of the new infections occur among drug users, in contrast to 6% among MSM. In North Africa and the Middle East, 50% of the infections vector though sex workers and their clients, 28% through drug users, while only 18% vector through MSM. In other parts of Africa, the pattern is similar, with HIV/AIDS spreading along trucking routes. Global regions show distinct patterns, but I think that it is accurate to say that HIV is not a “gay disease”.

      Reply
  6. posted by Houndentenor on

    This just gets more and more pathetic. It’s like watching a car wreck. I know I shouldn’t be watching but I can’t look away.

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  7. posted by Tom Scharbach on

    This just gets more and more pathetic. It’s like watching a car wreck. I know I shouldn’t be watching but I can’t look away.

    You shouldn’t look away. Hard-core, anti-gay conservative Christians and their political allies are engaged in a full-court press to eviscerate Obergefell, just as hard-core segregationists engaged in a full-court press for a decade after Brown.

    In addition to the anti-equality press at federal and state levels — the ACLU is tracking the state bills and the count keeps growing — conservative Christians are determined to suck at the government teat — vouchers for “Christian Academies” and Catholic parochial schools, “faith-based” child placement and other social services facilities, hospitals and medical facilities that provide substandard/nonstandard health care services — while discriminating and/or refusing to provide services the government pays them to provide. And all of it to be accomplished with a level of hypocrisy that is remarkable, even by conservative/libertarian standards.

    It is a train wreck, to be sure. But it is America’s train wreck, and all Americans are going to be affected by it. Don’t look away, however tempting. Fight instead.

    Reply
    • posted by Lori Heine on

      This is a good point to keep in mind. No one who’s willing to benefit from the government’s largesse, and take the taxpayers’ money, really cares about religious freedom. When they claim that they do, they are lying.

      Reply
    • posted by Jorge on

      You shouldn’t look away. Hard-core, anti-gay conservative Christians and their political allies are engaged in a full-court press to eviscerate Obergefell, just as hard-core segregationists engaged in a full-court press for a decade after Brown.

      It’s important when naming the threats to LGBT rights to have a rank or priority system. In role-playing game terms, you worry more about some of your forces being attacked than others. You want the enemy to attack your “tank”, because almost nothing will happen, while you have time to act or counteract. Your leader or other strategic assets must be defended at all costs or your house of cards falls. Some of your assets are liabilities, so you use them as bait.

      Obergefell? Possibly a tank, though I think it’s bait.

      The budget cuts and immigration enforcement and almost everything else Trump is much the same against the LGBT left.

      Reply
  8. posted by Tom Scharbach on

    It seems to me that libertarians … haven’t a prayer until Americans once again accept an order in which black customers can be denied a seat in a restaurant or until the jurisprudence of this country has become completely incoherent.

    It seems to me that the question is unavoidable, no matter how hard liberals, conservatives and libertarians try to avoid the question.

    If state-sanctioned religious discrimination exemptions on the basis of sexual orientation are permitted, then it follows that state-sanctioned religious discrimination exemptions must be permitted with respect to religion, race, ethnicity and so on, if the principle of equal treatment under the law is to be respected.

    On what possible basis could a state permit a religious exemption for Stephen’s hapless “bakers, florists and photographers” with respect to same-sex marriages but not permit a religious exemption with respect to other religiously objectionable marriages, such as inter-racial, inter-faith, inter-denominational and so on?

    On what possible basis could a religious objection by a Catholic “baker, florist or photographer” to a same-sex marriage be sanctioned, but a religious objection by a Catholic “baker, florist or photographer” to an adulterous remarriage after divorce not be sanctioned?

    The folks pushing the “religious freedom” exemption to non-discrimination laws in the case of same-sex marriage adamantly refuse to discuss the questions involved, because the discussion lays bare the motivation and intent of the “religious freedom” proposals being advanced in state legislatures, which is not to advance religious freedom but to permit discrimination against gays and lesbians, and gays and lesbians alone.

    Reply
    • posted by Jorge on

      Did I get instant-rebutted the last time I asked this question? Let’s find out.

      On what possible basis could a state permit a religious exemption for Stephen’s hapless “bakers, florists and photographers” with respect to same-sex marriages but not permit a religious exemption with respect to other religiously objectionable marriages, such as inter-racial, inter-faith, inter-denominational and so on?

      On what possible basis could a religious objection by a Catholic “baker, florist or photographer” to a same-sex marriage be sanctioned, but a religious objection by a Catholic “baker, florist or photographer” to an adulterous remarriage after divorce not be sanctioned?

      How is this not moot?

      Reply
    • posted by Tom Scharbach on

      You can have all the rebuttal time you want, Jorge, but you have to have something to say for your rebuttal to make a difference.

      Reply
    • posted by TJ on

      It would seem that “religious freedom ” has become a buzzword for “religious favoritism “

      Reply
    • posted by Tom Scharbach on

      It would seem that “religious freedom” has become a buzzword for “religious favoritism”.

      Along the lines of Matthew 6:21 (“For where your treasure is, there your heart will be also.”), the proposed religious freedom legislation (creating a heightened level of protection for religious opposition to same-sex marriage, and that alone) tells us what is most important to conservative Christians. I suspected that for a long time, but now I know.

      Reply

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