Andrew Sullivan’s looks at what’s likely to following the achievement of all of the gay-rights movement’s original nondiscrimination goals.
There are political matters on which Sullivan and I disagree, but also many on which he is spot on. And in looking forward, it’s hard to disagree with what’s coming for LGBTQ+ activism. As Sullivan writes:
If current trends are any indication, [the Human Rights Campaign and similar groups] will simply merge into the broader intersectional left and become as concerned with, say, the rights of immigrants or racial minorities as they are with gay rights. In the political climate on the left at the moment, singling out gays as a separate category is increasingly impermissible.
7 Comments for “What’s Next?”
posted by Tom Scharbach on
Sullivan could well be right in the long run, but I would quietly remind Sullivan and others ready to declare “Mission Accomplished” that we have a long way to go before “equal means equal” is a fact rather than a goal, particularly when it comes to the transgender community.
I can’t help but think that this is yet another example of conservative homosexuals declaring “Mission Accomplished” prematurely, as were the “Mission Accomplished” declarations loudly proclaimed by conservative homosexuals after other major decisions like Lawrence and Obergefell, declarations quickly followed on by “Hey, you won! Why don’t you shit up and sit down already?”
posted by Kosh III on
A giant victory but not total. Sullivan needs to get out more and not just to gay enclaves in blue states.
Trump allows children to suffer because he’s opposed to adoption by gays. Tennessee just followed suit forbidding gays to adopt.
Plenty of hatred still out there, especially in conservative, regressive Grand Old Posterior controlled areas.
posted by Jorge on
And what will be the cure for such hatred?
It’s either going to be more “matters” marches, more Twitter warfare, or more laws (especially at the executive level). Not a very bad rotation to have if you ask me. The politics will get very local.
posted by Tom Scharbach on
Compromise, anyone? (Not if NYT readers’ comments are any indication.) But Jonathan Rauch and Peter Wehner make strong arguments in favor of the Fairness for All Act, noting that: “For LGBT Americans, locking in religious groups’ support for nondiscrimination protections would be a political game-changer.”
In 2005, Jon Rauch authored “Gay Marriage: Why It Is Good for Gays, Good for Straights, and Good for America“, accurately described on IGF as “A compelling case for the freedom to marry, confronting social conservatives on their own turf.”
Four years later, Jon Rauch reneged, co-authoring a 2009 NYT OpEd with David Blankenhorn that proposed a “grand compromise” in which marriage would be reserved for straights but gays/lesbians would be allowed to enter into marriage-equivalent civil unions.
How quickly Rauch abandoned equal treatment under the law for gays and lesbians to appease conservative Christians. Nobody listened to him then — thank G-d — and gays and lesbians won both the hearts and minds of the American people and the right to marry.
Now Rauch is at it again.
In the wake of a major Supreme Court decision advancing “equal means equal” by ruling that the Civil Rights Act of 1964 protects gays, lesbians and transgenders, Rauch has joined forces with Peter Wehner to propose that gays, lesbians and transgenders “compromise” by subjecting themselves to the “Fairness for All Act”, legislation that singles out gays, lesbians and transgenders for lesser protections than other classes protected by the Civil Rights Act of 1964, providing religious organizations and service providers with the ability to discriminate based on sexual orientation and gender identity in situations where those organizations and providers are explicitly prohibited under current federal law from discriminating based on other protected characteristics.
Just as was the case in 2009, Rauch abandons equal treatment under the law to appease conservative Christians.
Rauch may have principles, but “equal means equal” is not among them. The first time he reneged on “equal means equal”, it might have been a mistake. The second time around, it becomes a pattern. Gays and lesbians didn’t listen to him in 2009, and won’t now.
As to Christians, RFRA (described by Justice Gorsuch in Bostock as a “super-statute”) either applies to the Civil Rights Act of 1964, or it does not. But if it applies, it applies to all.
posted by Tom Scharbach on
“For LGBT Americans, locking in religious groups’ support for nondiscrimination protections would be a political game-changer.”
I suspect that Rauch is making the same mistake in the case of the Fairness for All Act that he made when he and David Blankenhorn proposed the “grand compromise” on marriage equality in 2009. He assumed, then, that conservative Christians who comprise 40% of the Republican base would buy into the “grand compromise”. None did, or showed any willingness to do so.
I suspect that this is also true of Rauch’s proposed airness for All Act compromise.
I spent an hour or so this morning checking statements from the various conservative Christian organizations that are usually considered to be influential in the Republican base, and I did not find a single favorable statement about the Act. Instead, I found almost uniform rejection of the Act among those organizations.
I won’t go through all of the statements, but instead offer up a Family Research Council official statement on the Act, titled “The Unfairness of the “Fairness for All Act“. It is one of many, but perhaps the most explicit.
The thrust of the document, which details how the Fairness For All Act would harm “Family-Owned Businesses”, “Women and Girls”, “Children”, “Teachers and Students”, the “Medical Community” and “All Americans”, comes down to this:
In short, the Fairness For All Act is unacceptable to conservative Christians because it supports any rights for gays, lesbians and transgenders, no matter how limited and compromised.
I’m on record supporting the Sherbert/Yoder standard, embodied in RFRA, as the appropriate standard to protect Free Exercise in cases of laws of general application. That standard is, of course, higher than the “rational basis” standard articulated by Justice Scalia in Employment Division, and that standard (which requires a showing of “substantial burden”) is considered to be to high a bar by most conservative Christians.
Be that as it may, I think that Stephen and others who are casting gays and lesbians in the role of spoilers for the “grand compromise” are either ignorant of conservative Christian opposition to the Fairness for All Act or willfully using gays, lesbians and transgenders as cannon fodder in the continued culture war over “equal means equal”.
And I think that, however typical of conservative homosexuals aligned with conservative Christians, sucks.
posted by Another Steve on
The Fairness for All Act does not revoke or reduce existing civil rights or anti-discrimination protections for anyone; it adds major protections that LGBTQ people currently do not enjoy. Nonetheless, because it contains some protections for people with deeply held religious views on same-sex marriage and gender reassignment, it’s being rejected as “bigotry.”
Tom Scharbach repeats, like a mantra, that “equal means equal,” as if nothing can ever be allowed to compromise that principal, even if it the state must force people to violate deeply held religious beliefs in order to keep their shops or small businesses. It’s as if those rights –yes, religious liberty (progressives, cover your eyes and block your ears) exist only within a private home or house of worship—and even with the latter, some progressives want sermons vetted by local authorities to ensure they don’t contain dangerous “hate speech,” meaning views that criticize the morality of same-sex marriage and gender transition.
Kurt Vonnegut wrote a frightening story about what happens when state-enforced “equal means equal” becomes the sole dogma. It’s called “Harrison Bergeron” (https://www.sparknotes.com/short-stories/harrison-bergeron/summary/).
posted by Tom Scharbach on
Tom Scharbach repeats, like a mantra, that “equal means equal,” as if nothing can ever be allowed to compromise that principal, even if it the state must force people to violate deeply held religious beliefs in order to keep their shops or small businesses.
“Equal means equal” is a shorthand for the core principle in the American social compact that all American citizens should be entitled to the rights and benefits of citizenship, on the one hand, and the burdens of citizenship, on the other, on an equal footing, absent a compelling reason, based on the common good, why the government should discriminate between citizens, granting greater/lesser rights and benefits, or imposing greater/lesser burdens, under the law. I do not suggest that “nothing can ever be allowed to compromise that principal [sic]”. But I do suggest that the principle should be compromised if and only if there is a compelling reason to do so. It seems to me that a compelling reason is lacking in this instance.
The Fairness for All Act does not revoke or reduce existing civil rights or anti-discrimination protections for anyone; it adds major protections that LGBTQ people currently do not enjoy. Nonetheless, because it contains some protections for people with deeply held religious views on same-sex marriage and gender reassignment, it’s being rejected as “bigotry”.
The Fairness for All Act adds major protections for LGBT citizens (or would have, had Bostock not been decided), as you suggest. However, as you also note, it adds those protections with limitations related to religious beliefs that are not applicable to anyone other than gays, lesbians and transgenders. As presently conceived, (1) none of the limitations are applicable to citizens in any other protected class under the Civil Rights Act of 1964, and (2) no other religious beliefs that are or might be applicable to the Civil Rights Act of 1964 are similarly protected.
Let me illustrate the problems with this by comparing two situations:
(a) An employer who, based on sincerely held religious beliefs, refuses to employ gays, lesbians and transgenders, on the grounds that employing gays, lesbians and transgenders sanctions sexual practices and relationships offensive to the sincerely held religious beliefs; and
(b) An employer who, based on sincerely held religious beliefs, refuses to employ married women, on the grounds that employing married women is offensive to the sincerely held religious beliefs that married women should be homemakers, sustaining the marriage and raising children if children are born to the marriage.
Both religious beliefs (the belief that homosexuality is morally unacceptable and the belief that the place for married women is in the home, not the workplace) are common among conservative Christians. But only the former is protected by the Fairness for All Act; the latter is not. Why and on what basis?
In looking at those situations, trying to find the basis for the one but not the other, we can come at it from two directions, but the two directions are nothing more than two sides of the same coin.
We can come from the direction of asking why gays, lesbians and transgenders are less worthy of protection under the Civil Rights Act of 1964 than married women, which is to ask the question: “What compelling reason, based on the common good, does the government have to sanction religiously-based employment discrimination against gays, lesbians and trangenders but not married women?” That, in turn, requires us to find and articulate a reason why gays, lesbians and transgenders are less worthy of protection under the Civil Rights Act of 1964 than married women.
We can come instead from the direction of asking why the religious belief that homosexuality is morally unacceptable is more worthy of government protection than the religious belief that the place of married women is in the home, not the workplace. That is to ask the question: “What compelling reason, based on the common good, does the government have to protect the religious belief that homosexuality is morally unacceptable, but not the religious belief that the place of married women is in the home, not the workplace?” As is the case with the question of why gays, lesbians and transgenders are less worthy of equal protection than marriage women, that requires use to find and articulate a reason why the latter religious belief is less worth of protection than the former.
I don’t think that either question can be answered in a way that is consistent with and meets the requirements of equal protection under the law. And that, it seems to me, is where the house of cards underlying the Fairness for All Act collapses.
If the Fairness for All Act — like RFRA — established a standard for religious exemption to the Civil Rights Act of 1964, and applied that standard, whatever it was, to all protected classes and to all religious beliefs on an equal footing, I would not have a problem with the constitutional “equal means equal” question, although I would argue that RFRA protection is sufficient, because the Sherbert/Yoder standard is well established and well understood. As presently drafted, however, the Fairness for All Act does treat classes differently, and — absent Congress articulating a clear and compelling reason why this must be so — the Act is, in my view, unconstitutional on its face.
But I would suggest to you, and to other conservative homosexuals, that the Fairness for All Act is dead in the water, Jon Rauch’s latest “grand compromise” proposal notwithstanding. Bostock has been decided, and the Civil Rights Act of 1964 protects gays, lesbians and transgenders, subject (most likely) to RFRA. The only purpose of the Fairness for All Act at this point is to single out gays, lesbians and transgenders for special, government sanctioned, discrimination.
The proposed “grand compromise” has no basis; conservative Christian groups, reacting to the Fairness for All Act, have made it clear enough that the Act is unacceptable to them notwithstanding the fact that the Fairness for All Act broadens their ability to discriminate (because, unlike RFRA, no showing of a “substantial burden” need be made). Gays, lesbians and transgenders have to interest in assisting conservative Christians in their efforts remove the “substantial burden” test and single them out for special discrimination. At this point, the Fairness for All Act is a non-starter, good only for the purpose of allowing conservative homosexuals to depict left/liberal gays, lesbians and transgenders as unreasonable. It is nonsense.