Author Archives: Stephen Henry Miller

Supreme Court’s Go-Slow Approach

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The U.S. Supreme Court has now turned away appeals from five states looking to maintain their prohibitions against same-sex marriage, effectively legalizing gay marriages in those states and presumably some others but also leaving the issue unresolved nationally. As Fox News/AP report:

The justices rejected appeals from Indiana, Oklahoma, Utah, Virginia and Wisconsin. The court’s order immediately ends delays on gay marriage in those states. Couples in six other states—Colorado, Kansas, North Carolina, South Carolina, West Virginia and Wyoming—also should be able to get married in short order. Those states would be bound by the same appellate rulings that were put on hold pending the Supreme Court’s review. That would make same-sex marriage legal in 30 states and the District of Columbia.

As Justice Ginsburg signaled recently, it will likely take a split among the circuits before the Supreme Court decides to rule on whether any state can legally ban same-sex marriage. Otherwise, the issue will be allowed to proceed through the remaining circuits.

All in all, significant progress has been achieved and will continue to be made. And better no decision than a bad one. If and when one of the more conservative circuits, such as the 6th (Kentucky, Michigan, Ohio, Tennessee) or 5th (Louisiana, Mississippi, Texas), upholds state bans against marriage equality, the High Court will be forced, presumably, to weigh in. It’s widely believed that Justice Kennedy, always the swing vote between conservatives and liberals, would want to maintain his reputation at the leading judicial voice for equal rights as regards gay Americans. We’ll just have to wait a bit longer.

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Trans Accommodations Require Reasonableness

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Regarding the Washington Post story A question for schools: Which sports teams should transgender students play on?, one could be blithe and say that social conservatives claim sexual orientation is a choice but gender isn’t (the anti-LGBT Minnesota Child Protection League stated that in terms of school policies there are no “accommodations made for those who believe that gender is a biological and genetic reality, not a social choice”).

Of course the social conservatives have got this wrong: transgender youth and their advocates are not claiming that gender is a choice; the issue is whether to be true to one’s inherent gender when it does not correspond to the body’s physical reality.

But this doesn’t mean there aren’t real issues of what constitutes reasonable accommodation in locker rooms and showers, especially in schools—and the case isn’t helped by incidents such as this one, in which a transwoman who is biologically male asserted a right to change in the women’s locker room at Evergreen State College in Washington and “Angry parents contacted the police after a young girl saw the transgender student naked inside the locker room,” according to local news reports. Reasonableness goes both ways.

Which reminds me of how New York City decided a few years back not to proceed with allowing a private firm to install individual self-cleaning restroom kiosks (popular in European cities) because they would not be large enough to accommodate wheelchairs, with the result that no New Yorker gained the benefit of this service. Or, for that matter, the argument that better no anti-discrimination law for LBGT people than one that would provide an exemption for religious organizations. I could go on, but you get the point.

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The New Puritans

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Cultural historian Camille Paglia, a very un-politically correct lesbian, to be sure, on why the modern campus cannot comprehend evil:

Despite hysterical propaganda about our “rape culture,” the majority of campus incidents being carelessly described as sexual assault are not felonious rape (involving force or drugs) but oafish hookup melodramas, arising from mixed signals and imprudence on both sides.

Colleges should stick to academics and stop their infantilizing supervision of students’ dating lives, an authoritarian intrusion that borders on violation of civil liberties. Real crimes should be reported to the police, not to haphazard and ill-trained campus grievance committees.

When evil (as in sexual assault) is defined as that which makes you feel bad, in retrospect, then there is no language left to describe, or help defend against, true evil.

In a similar vein, Margaret Wente on the new campus sex puritans:

Sixty years ago, sexual behaviour among the young caused deep alarm among the puritanical religious right. Today, it causes deep alarm among the puritanical progressive left. Like their forebears, they are doing their best to restrict and regulate it.

This weekend, California Governor Jerry Brown signed a bill that makes universities redefine consensual sex. From now on, students must effectively obtain the “affirmative consent” of their partners, which must be “ongoing” every step of the way. Those accused of violating the consent rule will be judged on the preponderance of the evidence. Perpetrators face suspension or expulsion, and universities face heavy penalties for failure to enforce.

The new measure is designed to stem a tidal wave of rape on campus that, in fact, does not exist. (Violent crime, including sexual assault, has been in decline for 20 years.) Even so, universities across North America have set up vast new administrative apparatuses to deal with the crisis. Many of them have also expanded the meaning of “sexual violence” to include anything that makes you feel bad.

Not dissimilar from the way the campus free speech movement of the sixties has morphed into the rule of progressive speech codes that stifle debate which veers away from progressive orthodoxy.

(As I posted recently, gay relationships among students also become embroiled in these star-chamber proceedings—On Campus, Absence of Due Process Extended to Gays.)

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Anti-Gay Groups Favor Democrats to Pro-Gay Republicans

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The anti-gay, marriage-restricting activists at the National Organization for Marriage, Family Research Council Action, and CitizenLink “will mount a concerted effort to urge voters to refuse to cast ballots” for Republican House candidates Carl DeMaio in California and Richard Tisei in Massachusetts and Republican Senate candidate Monica Wehby in Oregon, reports Buzzfeed, citing a letter sent to Republican congressional and campaign leaders last week.

As someonet tweeted me, these groups are now in effect campaigning for Democrats to win in these races.

Like some “progressive” LGBT activists, their worst nightmare is gay and pro-gay Republicans being elected.

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Let’s Go to the Stats

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Pew Research takes a look at public opinion in the U.S. regarding homosexuality as sin, same-sex marriage, and requiring businesses to provide services to gay weddings.

The big news is that support for same-sex marriage has fallen from 54% last year to 50%. Says Pew:

It is too early to know whether this is an anomaly or the beginning of a reversal or leveling off of the growth in support for same-sex marriage widely observed in polls over the past decade.

This was noted, accurately, by the Wall Street Journal’s law blog, and for ideological purposes by by the National Organization for Marriage.

But for me, a more troubling finding is that 50 percent of all Americans consider homosexuality to be a sin, up from 45 percent last year. This mini-backlash (if that’s what it is) may be related to judicial victories for marriage equality in appellate courts, the Supreme Court’s overturning of the Defense of Marriage Act, and perhaps to local rulings that small business owners must bake cakes and photograph gay weddings even if they have religious objections to these assignments and would prefer to let their competitors take these gigs.

In other words, some of the backlash may be an inevitable result of progress toward equality under the law, and some may be self-inflicted by activists who would violate others liberty in order to compel ideological conformity.

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Marriage Politics

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“[S]everal forces, political as well as demographic, may converge to render a presidential candidacy by [Rob] Portman, the Ohio Republican U.S. senator, as at least nominally viable,” writes Stephen Koff, Washington bureau chief for Cleveland’s Plain Dealer. About a potential run by Portman, one of a handful of GOP congressmembers who support marriage equality, Koff observes:

Key to this is the fact that a Portman candidacy could align with a U.S. Supreme Court decision that would end the legal and constitutional fight over same-sex marriage. Such a ruling could come by next summer, well before the Republican voters go to the first 2016 caucuses and primaries. …

Patrick Egan, a New York University political scientist who has studied public opinion and gay and lesbian issues in politics, said, “My sense is that in their heart of hearts, Republican Party leaders would very much like to see the issue of gay marriage taken off the political agenda for 2016 and beyond.”

A credible run by Portman would signal a profound shift in the GOP. However, as Koff noted, that would be predicated on a Supreme Court ruling that takes marriage off the political table. But last week, liberal Supreme Court Justice Ruth Bader Ginsburg said that if the appellate circuits keep finding a constitutional right to same-sex marriage (albeit in decisions that are invariably stayed), then there is “no need for us to rush.”

That could mean several years delay as each of the circuits address the issue. So, ironically, supporters of marriage equality (as opposed to those who would like to keep the issue brewing as a culture war hot point, for political mobilization purposes), should be hoping that the Sixth Circuit (covering Kentucky, Michigan, Ohio and Tennessee) breaks ranks and upholds state bans on same-sex marriage, as law professor and IGF contributing author Dale Carpenter writes it seems poised to do. That would create a split among the circuits that would dramatically hasten the Supreme Court’s ruling on the matter.

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ENDA Is Passé

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Openly gay Rep. Jared Polis (D-Colo.) hopes to get half the members of the House to sign a discharge petition that would force a vote on a revised Employee Non-Discrimination Act (ENDA). The reformulated ENDA would limit the current bill’s exemption for religious organizations, including religiously affiliated private schools and charities. The narrowed exemption might apply only to ministerial positions, which would be a deal-killer for many/most of ENDA’s current House GOP co-sponsors, and I suspect also some Democrats. And although ENDA already was passed in the Senate, with revised language it would stall there as well during reconciliation.

The dilemma: Without a sharply curtailed exemption, many LGBT activists have announced they will no longer support ENDA.

In short, ENDA still is likely to be on a road going nowhere, although the discharge petition endeavor will try to mobilize LGBT voters in the midterms (it’s also supported by openly gay GOP congressional candidates Carl DeMaio and Richard Tisei).

Despite these efforts, ENDA increasingly seems like inside beltway baseball for politicos and activists; it’s no longer generating any real interest among gay voters, whose passion is directed toward marriage equality.

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Dinner with Log Cabin Republicans

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Tonight I attended the Log Cabin Republicans’ Annual Spirit of Lincoln dinner in Washington, D.C. Guests of honor I spotted at the reception or dinner included Rep. Paul Ryan (R-Wisc.) and Sen. Pat Toomey (R-Pa.), along with openly gay congressional candidates Carl DeMaio (Calif) and Richard Tisei (Mass.) I chatted with tax activist Grover Norquist (always affable) and journalist friend James Kirchick. Texas Log Cabin folks at my table entertained with tales of battling against their hidebound state party.

Tom Wahl, Jr., the chairman of the Liberty Education Forum, spoke of working to change opposition to gay legal equality in the deep south and elsewhere, Republican to Republican—a campaign I believe will be more effective than a more highly publicized effort being undertaken by an LGBT progressive organization.

The first keynoter was supply-side economist Larry Kudlow, who talked about Reagan’s embrace of big-tent Republicanism, and why we need to make the case that unshackling American enterprise from excessive taxation and regulation is good for middle and working class Americans. He called for passage of the Employee Non-Discrimination Act (I wonder if he knows many leading LGBT activists are now against ENDA because of its exemption for religious organizations). Then Mary Cheney spoke movingly about the necessity for marriage equality, and why we will not have true equality for LGBT Americans until both parties are onboard, and signs that this is now happening thanks to the efforts of Log Cabin Republicans and others working within the GOP.

Giving credence to Cheney’s view, in the Washington Examiner Carmen Fowler LaBerge, who “advocates on social issues from a Christian conservative position” announced “I’ll probably get myself in trouble — but I’m going to do it anyway: I think there’s a growing consensus that the culture war on marriage has been lost.” Other articles have noted that “culture war” issues are now working in Democrats’ favor.

What can’t go on forever won’t, and the GOP’s opposition to full legal equality for gay people, including the freedom to marry, is one of those things.

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Other Than That, the Story Was Accurate

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A Michel Lind hit piece at Salon against libertarian investor Peter Thiel suggests, among other very bad things, that he’s anti-gay. Lind writes:

Peter Thiel wouldn’t be on any publication’s list of leading “public intellectuals” if he were a failed investor who worked in obscurity at a law firm or investment bank and, in his spare time, wrote defenses of anti-gay slurs and denunciations of female suffrage and endorsements of seasteading for the libertarian intellectual ghetto.

The evidence for the anti-gay charge? Lind quotes from a Fortune article:

In 1995 he and Sacks published a book called The Diversity Myth, in which they argued that in the campus context, “those persons complaining about oppression are generally not the ones to have experienced it firsthand.” In one disturbing passage they come to the defense of a law student friend who in 1992 had shouted an antigay slur outside the cottage of a gay resident fellow as a protest against campus speech codes. The authors argue that the law student’s near-universal execration afterward, official and unofficial, was disproportionate to his offense.

What Lind somehow fails to mention is that Thiel has long been openly gay, a rarity in the top echelons of Silicon Valley. In fact, this very morning on CNBC he was asked, as an openly gay man, about the lack of openly gay CEOs in America (he said times were changing and we’d be seeing more). But that wouldn’t fit into Lind’s, or Salon’s, anti-business, anti-libertarian, anti-anti-left narrative.

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