Balancing Conflicting Rights Would Require Political Courage. Alas…

9 Comments for “Balancing Conflicting Rights Would Require Political Courage. Alas…”

  1. posted by Jorge on

    “Balancing Conflicting Rights Would Require Political Courage…”

    You can do it *seemingly* without political courage if you have enough weaseley shamelessness. Lindsey Graham is doing it by being both for and against Trump. Mitt Romney and Ted Cruz (yes, I’m naming both) are passable in that area, too.

    Joe Biden also has that trait, being both for and against gay marriage in his history, having apologized to Anita Hill for running a fair hearing, having both encouraged and discouraged black uniformity by condemning violence running in tandem with Black Lives Matter protests and saying “you’re not black” if you don’t know who you’re voting for.

    So no, it does not require the kind of courage that will have you face down crowds of angry people at the drop of a hat. Only that which requires you to look in the mirror, decide what are your real winning and losing conditions, and trade in or out everything else. President-elect Biden’s got it.

    “Alas…”

    Lindsey Graham will never be president, and what you are asking for is a threading of the needle of Grahamian proportions. Biden won’t do it until there is a scandal for which the Fairness for All Act is the perfect solution.

    Reply
  2. posted by Tom Scharbach on

    If an amendment to the Fairness for All Act were introduced that expanded exemptions across the board to all protected classes in each of its provisions (e.g. allowed employers to refuse to hire married women to work outside the home, or allowed adoption agencies to refuse to place children in Christian homes, and so on), that amendment would be described by conservatives as a “poison pill” introduced to make enactment impossible.

    That’s because the point of the Fairness for All Act is to permit special, targeted, government-sanctioned discrimination against gays, lesbians and transgenders, while leaving existing protections in place for all other protected classes. To put it another way, the point of the Act is to continue to treat gays, lesbians and transgenders as separate and distinct from all other citizens, and to provide special, elevated protection for religious beliefs relating to gays, lesbians and transgenders. If the Fairness for All Act put everyone in every protected class on an equal footing, and gave equal protection to all religious beliefs that run contrary to the requirements of the Civil Rights Act of 1964 (that is, provided “fairness for all”), the Act wouldn’t have a snowball’s chance in hell of being enacted.

    The Fairness for All Act, if enacted without an amendment as described, can be justified if and only if: (1) proponents can justify why gays, lesbians and transgenders are less entitled to equal protection under the law than citizens in other protected classes, and (2) proponents can justify why religious beliefs about gays, lesbians and transgenders are more entitled to protection under the law than other religious beliefs.
    That is an impossible task.

    As far as I am concerned, the Fairness for All Act is a throwback to the political debate of a decade ago. We no longer need legislation recognizing same-sex marriage as valid (Obergefell settled that question) and we do not need legislation that includes gays, lesbians and transgenders as a protected class under the Civil Rights Act of 1964 (Bostock settled that question). And so on. Outside of a little clean up, gays, lesbians and transgenders don’t need the Fairness for All Act. The Act is needed only by those who wish to discriminate against us.

    So let’s stop the nonsense and get down to it.

    The real fight, at the federal level, is over the extent of and limitations to religious exemption under employment, housing and public accommodations non-discrimination laws.

    At the federal level, the Civil Rights Act of 1964 (and all other federal non-discrimination laws) is subject to the Religious Freedom Restoration Act of 1993, which provides that “Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.” RFRA provides religious protection across-the-board, without regard to protected class and without elevating one form of religious belief over another. That might or might not be the right thing to do from a policy level, but it is a fact.

    Proponents of the Equality Act want to remove RFRA exemptions from operation of the Civil Rights Act of 1964, reinstating the Employment Division test to non-discrimination laws. That would put non-discrimination laws under Employment Division, which held that laws of general applicability need have a “rational basis” but not more, regardless of burdens placed on religious exercise. Again, that might or might not be the right thing to do, but it is worth a discussion.

    Proponents of the Fairness for All Act want to maintain RFRA exemptions from operation of the Civil Rights Act of 1964 (and other federal non-discrimination laws), except in the case of operation of federal non-discrimination laws with respect to gays, lesbians and transgenders, where Sherbert/Yoder protections (embodied in the RFRA), while removing the “substantial burden” test altogether in that instance. It seems to me that is abhorrent. If we are going to protect religious exemption in the case of non-discrimination laws, we should do whatever we do across-the-board.

    That’s the nub of it, and we should be having a discussion about the extent of and limitations to religious exemption to non-discrimination laws across-the-board. That discussion, it seems to me, might be useful.

    Reply
    • posted by Jorge on

      So let’s stop the nonsense and get down to it.

      (including Aunt Lindsey)

      There is a saying that you can’t cure an abused dog (or person) with love. That is, where a kindhearted person (often a woman) falls into the trap of believing that because an aggressive person or animal was abused when they were young, if they just show enough love, they can remove that person’s or animal’s bloodlust.

      I think your posts are proof of that folly with respect to the relationship between right-wing religion and gays.

      I don’t mix declarations of war with calls for unity and cooperation. I will show you no mercy.

      When you have a political faction that has so much hatred for people of religious conviction that they want to force a religious order to subsidize abortifacients,

      that they would rather jail someone than wait one day to help her figure out how to make a new law work best for everyone in the long run

      that they would rather ruin someone’s business and livelihood rather than simply be told “no” and go somewhere else

      then what we are dealing with is far from the principle of equality. It is proof that the principles of equality have become nothing more than a naked power grab to the people who claim to be fighting for them.

      When you recognize that the G, L, B, T community and its advocates have failed to escape from the primal barbarism they point to as their own lived experience, you recognize why a simple Yes-No decision in their favor is insufficient to maintain the civil rights of all. It is a resolved dispute without a rule to order the parties’ conduct. Chaos moves in to fill the vacuum, or more precisely, the group that is most aggressive wins.

      (Not even when that Yes-No decision brings one’s attention to legislation?)

      What is the principle that limits the power of gays, lesbians, bisexuals, and transgenders? What stops a winner-take-all impulse from operating?

      Not the status quo.

      That’s the nub of it, and we should be having a discussion about the extent of and limitations to religious exemption to non-discrimination laws across-the-board.

      Forget it! Blacks are not trying to destroy religion.
      Latinos are not trying to destroy religion.
      Whites are not trying to destroy religion.

      Women are, and gays are. Tell them to stop, and there will be no problem to solve.

      Reply
      • posted by Kosh III on

        You reap what you sow.

        Certain religionists have waged war against gay pp and women’s rights, now that they failed to destroy gays and women’s rights they complain when they get even a teeny tiny taste of the poisonous propaganda they have promilgated.

        Reply
        • posted by Jorge on

          I think that argument is disingenuous.

          When Old Testament God said that your children and your children’s children will suffer for your wrongdoings…

          Well, at least Old Testament God was honest.

          Reply
  3. posted by Tom Scharbach on

    Lindsey Graham will never be president …

    People (including Aunt Lindsey) said that about Donald Trump not too many years ago. I think that Aunt Lindsey should go for it!

    Reply
  4. posted by Tom Scharbach on

    Proponents of the Fairness for All Act want to maintain RFRA exemptions from operation of the Civil Rights Act of 1964 (and other federal non-discrimination laws), except in the case of operation of federal non-discrimination laws with respect to gays, lesbians and transgenders, where Sherbert/Yoder protections (embodied in the RFRA), while removing the “substantial burden” test altogether in that instance.

    As I look at this, I think that I should/could have worded it more clearly:

    Proponents of the Fairness for All Act want to maintain RFRA exemptions from operation of the Civil Rights Act of 1964 (and other federal non-discrimination laws), except in the case of operation of federal non-discrimination laws with respect to gays, lesbians and transgenders, where additional protection over and above Sherbert/Yoder protections (embodied in the RFRA), would be accomplished by removing the “substantial burden” test altogether in that instance.

    Reply
  5. posted by Tom Scharbach on

    President Biden signed an Executive Order yesterday ordering federal departments and agencies to review, in consultation with the Attorney General, “all existing orders, regulations, guidance documents, policies, programs, or other agency actions” to ensure compliance with Bostock, and to prepare a plan to bring agency actions into compliance.

    Reply
  6. posted by Tom Scharbach on

    What is the principle that limits the power of gays, lesbians, bisexuals, and transgenders? What stops a winner-take-all impulse from operating? Not the status quo.

    The status quo does not stop gays, lesbians, bisexuals and transgenders from “winner-take-all impulse[s]”, any more than the status quo stops Christians from dominion theology impulses. Impulses, which are emotions, can’t be controlled from outside. Inner reflection (sometimes supplemented by meds) is needed to shape/control impulses.

    What can be controlled to some extent, and is controlled somewhat by the status quo, are actions, private and governmental.

    Private actions are controlled, in general, by criminal prosecution after-the-fact and civil lawsuits filed both before-the-fact (e.g. restraining orders) and after-the-fact (suits for damages). Both, to some extent, serve to dampen action based on impulse.

    Government actions (that is, laws, regulations and practices) are controlled, however imperfectly, by the political need to acquire a legislative majority in order to enact laws and by court review of laws enacted to ensure compliance with the Constitution, which limits government authority.

    The question we need to hammer out as a nation right now, with respect to non-discrimination laws, are two: (1) what is the proper balance between “free exercise” and “equal protection” in the context of non-discrimination laws, and (2) can gays, lesbians and transgenders between treated as a class, differently under non-discrimination laws than other protected classes.

    Both are difficult questions, and neither side, it seems to me, is likely to be fully satisfied with whatever balance is eventually worked out. Ranting won’t help the process.

    Reply

Leave a Comment