IGF CultureWatch

The Supreme Court heard arguments this week in Hobby Lobby vs. Sebelius, on whether business owners can be mandated by the Affordable Care Act to pay for employees’ contraceptives that involve abortifacients such as the “morning after” bill, which take effect after fertilization and are viewed by the business owners as a form of abortion. The Obama administration has steadfastly refused to allow limited religious exemptions for business owners in this dicey area.

The New York Times reports:

“The questioning was sometimes technical but often unusually blunt and direct…. By the end of the argument, there seemed to be a tentative consensus that the two companies, both controlled by religious families, could be allowed to claim rights under the relevant law, the Religious Freedom Restoration Act of 1993, without opening the floodgates to objections from major public corporations.”

Scotusblog observed:

“Chief Justice Roberts wondered why, if a corporation could bring a claim of race discrimination, why couldn’t it bring a claim of religious discrimination? And, seeming to look for a way to rule narrowly for corporations, he suggested that the case might be decided by finding such protection only for corporations that are owned by a tightly limited group of shareholders.”

The upcoming ruling will impact cases heading toward the high court dealing with the right of religiously conservative small business owners to refuse assignments that involve servicing same-sex weddings, particularly expressive services such as creating floral arrangements or designing cakes with two grooms or brides atop. Progressives argue against religious exemptions here as well, citing the beloved slippery slope (first we fail to compel business owners to provide a service they feel violates their faith, next we’ll have anti-gay segregation).

Also on display at the Court during the contraception case arguments, the fear that allowing individuals to make faith-based choices will erode centralized authority: “So one religious group could opt out of this and another religious group could opt out of that and everything would be piecemeal and nothing would be uniform,” liberal Justice Elena Kagan fretted.

But other justices noted the difference between a small, independent business and large corporations. Ultimately, resolving the issue of self-employed florists and bakers might involve making a similar distinction.

From The Atlantic, Republicans Are Driving the Momentum for Gay Marriage: “From politicians and donors to the party rank and file, a change of heart in the GOP is a major factor in the issue’s increasing public acceptance.”

The headline might overstate things a bit, but there is a definite change in the grassroots. As I’ve said before, the party is no longer monotone on the issue (unlike the carping of LGBT Democrats who might have nothing to get them up in the morning if not their hatred of all things Republican).

Speaking of which, the level of Democratic mendacity in the party’s attacks on openly gay GOP congressional candidate Carl DeMaio is reaching new heights, which is hopefully a sign of desperation. I’ve written about DeMaio often before, most recently in Gay Republicans Who Might Win Drive LGBT Democrats Berserk.

A hat tip to Walter Olson, who pointed me to this development at World Vision International, the evangelical overseas charity, announcing it will now hire Christians in same-sex marriages (but expects all unmarried employees to abstain from sex outside of marriage).

Walter noted it’s a sign that same-sex marriage is rapidly being integrated into sectors of American culture heretofore unrelentingly resistant. Progressive secularists will scuff and demean this change among those they view as benighted, but those of us who want equal treatment, and not to force our worldview on others, should cheer.

More. Rachel Held Evans writes On the World Vision Reaction: Some Bad News, Some Good News, and Some Ideas:

The good news—and I want those of you who are discouraged to hear this—is that things are changing. As loud as these legalistic voices may seem right now, you will notice that they are often the same voices, over and over again. What I hear every day on the road and in my office is something different. It’s a freedom song, and it’s coming from thousands of pastors, writers, parents, teachers, and Christ-followers from all walks of life from all around the country and world. My desk is cluttered with books arguing for a more compassionate and inclusive way forward. Where I once scoured the internet for articles in support of women’s equality and LGBT equality, they are now plentiful, overwhelming. Letters detailing changed hearts and minds clog up my inbox. Things are changing. Hearts are softening. People are listening to their gay and lesbian brothers and sisters and engaging Scripture in fresh, yet faithful, ways.

Furthermore. World Vision reversed its decision after an uproar for the religious literalist establishment. But you can’t hold back the changing attitudes among younger evangelicals; you can only delay the inevitable.

A GOP strategist wed his partner in one of Michigan’s first same-sex marriages, notes MLive.com, which also reports “Republican President Ronald Reagan in 1988 appointed U.S. District Judge Bernard Friedman, who on Friday struck down Michigan’s constitutional amendment defining marriage as between one man and one woman.”

Alas, but as expected, the ruling has now been stayed pending appeal.

Loyal Democrats will soon comment that Michigan’s GOP Gov. Rick Snyder and Attorney General Bill Schuette are leading the appeal. But the GOP is no longer monotone, as disturbing as that prospect is to ideological partisans on both sides.

More. In another decision in favor of equality under the law, Friedman previously struck down the University of Michigan Law School’s use of race-based preferences (a ruling that was subsequently overturned), as noted in this backgrounder in the Detroit Free Press.

While the immediate tendency would be to say “good riddance,” I take my hat off to GetEQUAL for noting the passing of Fred Phelps Sr. with uncommon grace:

There will always be those who are so in pain themselves that they feel compelled to inflict pain on others. We re-commit ourselves today to loving those who hate us. We re-commit ourselves today to seeing the humanity in those who cannot or will not see it in us. And we re-commit ourselves today to working toward an America that is free of that pain — an America in which LGBTQ folks can live and love openly.

In all, Phelps helped expose visceral anti-gay prejudice, often (though not always) grounded in a gross distortion of religious principles, for all its ugly nastiness, which others usually conceal behind for more polite facades. For that, we can all be thankful.

The trap, however, is viewing all disagreements about gay rights matters as if our opponents were all crypto Fred Phelpses. Some conservatives have real concerns about social stability amidst social change — I think they’re wrong in this instance, but they’re not “haters.” And certainly, issues such as using the state to force expressive service providers to do our bidding can cast certain LGBT activists and their supporters in the role of the mean-spirited bully. GetEQUAL’s reminder to recognize the humanity of our opponents would serve us, and them, far better.

The Christian Science Monitor reports:

“Iconic Irish beer brand Guinness made waves after it pulled its sponsorship from New York City’s St. Patrick’s Day parade on Sunday, because the parade excludes LGBT groups. This move came just days after Boston Beer Co., the parent company of Sam Adams, announced it would pull its sponsorship from the Boston St. Patrick’s Day parade. Heineken pulled its sponsorship for New York parade for the same reason”

Here’s why:

“[LGBT economic power] isn’t the overarching driver – it is generational,” says [Bob Witeck, president of Witeck Communications, a marketing group focused on the LGBT demographic]. “What corporations see are the large numbers of younger consumers who are very passionate about human rights and nondiscrimination. Sending a message that anyone is not welcome is wrong.”

On the other hand:

“There are mixed feelings about marketing alcohol to the LGBT community. Studies suggest the LGBT community has higher rates of substance abuse issues than other demographics. Some say heavy marketing efforts by beer and liquor brands have played a role.”

More. How corporate America, acting in its own competitive interest, advances social and legal equality:

The rapid rise in public acceptance of gay marriage also has its roots in the workplace, says Lee Badgett, the director of the Center for Public Policy & Administration at the University of Massachusetts/Amherst. … “Many of the arguments were first tested in the corporate context before they made it out to the broader public,” she says. … “Even if corporations didn’t go into this with the intention of creating social change, in the process they created social change,” says Ms. Badgett.

In a Wall Street Journal op-ed also posted on the Cato Institute’s website, Eugene Volokh and Ilya Shapiro write:

We support the extension of marriage to same-sex couples. Yet too many who agree with us on that issue think little of subverting the liberties of those who oppose gay marriage. Increasingly, legislative and judicial actions sacrifice individual rights at the altar of antidiscrimination law.

The crux of the argument:

Of course, a couple that is told by a photographer that she does not want to photograph their commitment ceremony may understandably be offended. But avoiding offense is not a valid reason for restricting or compelling speech.

The Supreme Court’s ruling in Wooley guarantees the right of photographers, writers, actors, painters, actors, and singers to decide which commissions, roles or gigs they take, and which they reject. But the ruling does not necessarily apply to others who do not engage in constitutionally protected speech. The U.S. Supreme Court can rule in favor of Elane Photography on freedom-of-speech grounds without affecting how antidiscrimination law covers caterers, hotels, limousine drivers, and the like. That’s a separate issue that mostly implicates state religious-freedom laws in the more than two-dozen states that have them.

The First Amendment secures an important right to which all speakers are entitled—whether religious or secular, liberal or conservative, pro- or anti-gay-marriage. A commitment to legal equality can’t justify the restriction of that right.

Which won’t, of course, convince those on the LGBT left who view individual liberty and expressive freedom as subversive and anti-progressive doctrines that mustn’t be tolerated (see comments soon to be posted below).

More. And then there’s this look at the shape of things to come from the U.K., complicated, admittedly, but the fact that that the Church of England is, in fact, the state church in England. State churches are an unholy abomination, but so is suing a church in court to perform your wedding.

Furthermore. Will Saletan at Slate, on the broader issue, writes: “For the last couple of weeks, I’ve been defending people who oppose gay marriage. That feels pretty strange, since I’ve advocated gay marriage for more than 20 years.” He concludes:

“We’re not the losers in this fight anymore. We’re the winners. Our task now is to win the right way, not by dismissing our opponents as bigots and haters, but by persuading them that marriage is just as good for gays as it is for straights. We don’t have to shove our answer down their throats. They will come around to it—they’re coming around to it already—because it’s true.”

The Washington Blade ran an op-ed by a Joe Racalto, who was an advisor to former Massachusetts Rep. Barney Frank, denouncing the Gay & Lesbian Victory Fund for endorsing openly gay GOP congressional candidate Richard Tisei, a former Massachusetts state senator who has a good chance of winning his race against Democratic Rep. John Tierney in the Bay State.

The Victory Fund, which also endorsed former University of New Hampshire dean Dan Innis (he faces former Republican congressman Frank Guinta in a GOP primary), supports openly gay candidates who can run competitive races, support measures advancing LGBT rights, and are deemed sufficiently pro-choice on abortion.

The Victory Fund declined to endorse former San Diego councilmember Carl DeMaio, despite the fact that (as the Washington Post noted, “DeMaio has perhaps the best chance at winning a seat in Congress, among the three.” Critics contend that DeMaio, who released a campaign video in which he holds hands with his partner, Johnathan Hale, at an LGBT pride parade, has been insufficiently supportive of gay rights legislation and accepted support from Republicans who opposed marriage equality in California when he ran for San Diego mayor. (DeMaio is fiercely opposed by the anti-gay National Organization for Marriage.)

Others point out that DeMaio infuriated government employee unions by championing public pension reform in San Diego, and that it’s one thing to support moderate gay Republicans, but endorsing a gay Republican who is actually a conservative (or “Homocon“) who takes on the unions on behalf of taxpayers is just too much to expect.

In any event, several comments on the Blade’s website take op-ed author Racalto and his online fans to task for decrying the Victory Fund’s modest effort at bipartisanship. For instance, Log Cabin Republican David Lampo writes:

“It doesn’t occur to you that elected gay Republicans talking to the leadership and fellow members might result in the party changing its stance? Wasn’t that part of the process of changing the Democratic Party? Republicans will hold the House for the foreseeable future, and yet you would rather have a Democrat in those two seats rather than pro-gay Republicans who can help change the terms of the debate in the party. Amazing.”

The LGBT movement is, to a large extent, controlled by the Democratic party through its operatives who cycle from working for Democratic officeholders and administrations (or for the party itself), to leadership positions with the major LGBT political lobbies, and back again. Changing the GOP’s opposition to gay equality would be bad for the Democratic party, so of course they oppose it.

The Victory Fund’s limited foray into supporting two of three openly gay Republicans running for Congress is a small step in the right direction. Their refusal to support DeMaio shows they still have a ways to go, and the overheated response by Democratic loyalists shows why they’ll need to show a lot more spine if they don’t want to be pushed back into being just another party auxiliary like the Human Rights Campaign.

More. From the comments, Craig123 observes, “it does explain why [LGBT progressives] seem more concerned about defeating gay or gay-supportive Republicans than in defeating actual homophobes.” Indeed.

And Elliott adds his take that openly gay and gay-supportive Republicans “are running in swing districts that a Democrat could win, whereas the ‘phobes are usually running in safely Republican districts.” Which also explains why LGBT Democrats have boots on the ground campaigning in these “winnable” (for Democrats) races—even though a Democratic win means forestalling change in the GOP.

Furthermore. Pew Research Center finds that 61% of young Republicans (under age 30) now favor same-sex marriage. LGBT progressives put hands over eyes and declare the GOP will never change, so no sense working to elect openly gay and gay-supportive GOP candidates to advance and reflect that change, which can never happen.

Still more. And this, related very much to the above: Oregon GOP vote backs gay marriage.

Although not quite a wind, at least yet. The New York Times reports:

Evoking Ronald Reagan and Barry Goldwater, a group of Western-state Republicans plans to enter the battle in favor of same-sex marriage on Tuesday, urging a federal appeals court to declare gay marriage bans in Utah and Oklahoma unconstitutional.

The most prominent of the approximately 20 signers of the brief are former Senator Alan K. Simpson of Wyoming, a longtime supporter of gay rights, and former Senator Nancy L. Kassebaum of Kansas, who said last year that she had reconsidered her former opposition to same-sex marriage. …

Last month, a New York Times/CBS News poll found a rapid shift in Republican attitudes nationwide. Forty percent of Republicans said same-sex marriage should be legal, up from 33 percent last May and only 24 percent in September 2012.

There’s a slow but steadily advancing change in attitude among Republicans, especially the rank and file. The strength of the religious right bloc continues to be the key break on a sea change. It’s the main force of reaction against sane social policies in the GOP, just as government employee unions are the main force of reaction against sane economic (and public education) policies in the Democratic party.

More. Overall, support for marriage equality hits another high. In the 33 states that prohibit same-sex marriage, 53 percent of those polled support allowing it. But 6 in 10 evangelical Protestants oppose same-sex marriage.

Furthermore. Chart: 11 years of opinion change.

The previous thread on religious exemptions to anti-discrimination laws has gotten way too long, so I’m opening a new post. I don’t always agree with Andrew Sullivan, but he’s got this one absolutely right:

I favor maximal liberty in these cases. The idea that you should respond to a hurtful refusal to bake a wedding cake by suing the bakers is a real stretch to me.

Yes, they may simply be homophobic, rather than attached to a coherent religious worldview. But so what? There are plenty of non-homophobic bakers in Arizona. If we decide that our only response to discrimination is a lawsuit, we gays are ratcheting up a culture war we would do better to leave alone. We run the risk of becoming just as intolerant as the anti-gay bigots, if we seek to coerce people into tolerance. If we value our freedom as gay people in living our lives the way we wish, we should defend that same freedom to sincere religious believers and also, yes, to bigots and haters. You do not conquer intolerance with intolerance. As a gay Christian, I’m particularly horrified by the attempt to force anyone to do anything they really feel violates their conscience, sense of self, or even just comfort.

More. And Julian Sanchez blogs, thoughtfully:

Unlike most of my friends, I do not find it self evident that the “liberty interest” invoked by religious bigots is some kind of absurd sham worthy of mention only in derisive scare quotes. And I find it a bit disturbing that many of them seem to assume that if any anti-discrimination laws protecting any class of Americans have ever been justified, the weight of that interest has effectively been reduced to zero, and may be ignored for all future purposes. Having decided it was OK to forbid motels from turning away African Americans in 1964, in other words, many seem to take it as already settled that there’s no possible objection to compelling a photographer to work a gay wedding…

The point is that treating private discrimination as either a categorical wrong committed by troglodytes with no liberty interests meriting consideration or an utterly inviolable right of conscience, divorced from either historical context or practical consequence, seems like a stupid way to approach the issue. If there are still enough hardcore bigots to justify restricting their expressive association in the economic domain—or in subsets of that domain—then I hope their numbers soon dwindle to the point where those restrictions become unnecessary. But at some point, I would hope we can at least agree in principle, they become a sufficiently irrelevant minority that we are not entitled to inflict legal penalties strictly as a means of signaling our superior enlightenment and symbolic disapproval.

And another fine commentary, of the likes which you won’t see in the LGBT lockstep media. Ross Douthat writes in the New York Times:

But there’s another possibility, in which the oft-invoked analogy between opposition to gay marriage and support for segregation in the 1960s South is pushed to its logical public-policy conclusion. In this scenario, the unwilling photographer or caterer would be treated like the proprietor of a segregated lunch counter, and face fines or lose his business — which is the intent of recent legal actions against a wedding photographer in New Mexico, a florist in Washington State, and a baker in Colorado. …

In the past, this constant-pressure scenario has seemed the less-likely one, since Americans are better at agreeing to disagree than the culture war would suggest. But it feels a little bit more likely after last week’s “debate” in Arizona, over a bill that was designed to clarify whether existing religious freedom protections can be invoked by defendants like the florist or the photographer.

If you don’t recognize my description of the bill, then you probably followed the press coverage, which was mendacious and hysterical — evincing no familiarity with the legal issues, and endlessly parroting the line that the bill would institute “Jim Crow” for gays.

For a great many on the LGBT left, individual freedom of conscience is now a despised notion, and no one dare question the view that forcing religiously conservative business owners (who are self-employed, in the above examples) to provide services that celebrate gay weddings is anything but a wonderful progressive thing. I can’t think of anything that better highlights the authoritarianism that lurks not far beneath the surface of the leftwing “progressive,” bigger and more controlling government is always better, worldview.

Furthermore. As Sheldon Richman writes: “If we are truly to embrace freedom of association, logically we must also embrace freedom of nonassociation. The test of one’s commitment to freedom of association, like freedom of speech, is whether one sticks by it even when the content repulses.”