IGF CultureWatch

Writing in the New York Daily News, Akhil Reed Amar, who teaches constitutional law at Yale, argues that “gun lovers should invoke a landmark gay-rights case where the court’s liberals won out,” namely Lawrence vs. Texas. Writing at the Reason magazine blog, Damon W. Root comments on Amar’s column and points to the relevance of a Cato Institute amicus brief filed in Lawrence that states: “America’s founding generation established our government to protect rather than invade fundamental liberties, including personal security, the sanctity of the home, and interpersonal relations.”

Root adds that Lawrence and the Supreme Court’s ruling supporting gun ownership in District of Columbia v. Heller “each represent a major victory for the libertarian approach, with individual liberty triumphing over intrusive government in both cases.”

More. “Instapundit” Glenn Reynolds blogs: “Over the years I’ve often said that in my ideal world, happily married gay couples would have closets full of assault weapons.” The first part hasn’t gone over so well with social conservatives.

The Washington Post reports that:

an Annapolis company whose old-fashioned trolleys are iconic in the city’s wedding scene has abandoned the nuptial industry rather than serve same-sex couples. The owner of Discover Annapolis Tours said he decided to walk away from $50,000 in annual revenue instead of compromising his Christian convictions when same-sex marriages become legal in Maryland in less than a week. And he has urged prospective clients to lobby state lawmakers for a religious exemption for wedding vendors.

“As long as he doesn’t discriminate against other people, he’s free to do whatever he wants to do, including withdrawing his business from the industry,” said Equality Maryland executive director Carrie Evans, oblivious to the Orwellian overtones of her statement.

The situation is similar to that of a religiously conservative photographer who refused a request to photograph a lesbian wedding; her case is now before the New Mexico Supreme Court.

In each of these cases, the vendor is not refusing to serve gay people who come into their shops, for instance; they’re refusing to provide their services for same-sex weddings, which they feel violate their religious beliefs. There is a difference here that is not minimal.

LGBT progressive activists don’t have a problem with forcing wedding vendors whose religious convictions oppose same-sex marriage to either violate their personal beliefs or go out of business. But it smacks of progressive authoritarianism. We want the right to marry; forcing private businesses to serve us is another matter entirely, and another agenda. It erodes liberty in favor of state coercion for progressive ends.

Along similar lines, progressives cheer that private businesses will now be forced by the state to provide their employees with free “morning after” abortofacient drugs, despite their owners’ religious objections.

Eventually, it might dawn on these champions of governmental coercion that granting the state power to force private business owners to violate deeply held beliefs may come back and bite them when a different regime, with a different ideology, is in power.

Let’s be clear; the government should treat all citizens as equal under the law, and government marriage clerks that refuse to perform same-sex weddings shouldn’t hold their jobs. But private businesses are not agencies of the state, not quite yet, though increasingly that, too, seems part of the progressive playbook.

More. From a letter published in the Washington Post:

Why in the world would two people who are about to celebrate their marriage—surely one of the more joyful events of their lives—want to use a vendor who is unhappy about providing a service that they are paying for?

Why, indeed. Until you grasp that it’s all about force, coercion, and the use of state power to bring all who might dissent from the progressive worldview to heel.

On the passing of failed Supreme Court nominee Robert Bork (who was, infamously, “borked“) we recall that he denounced “the radical redefinition of marriage” to include same-sex couples and backed a federal constitutional amendment to prevent any state from recognizing same-sex marriage. He also said lots of other bad stuff about the “normalization of homosexuality” and “the libertarian virus.” After Bork’s borking, President Reagan nominated conservative jurist Anthony Kennedy, who turned out to be a stalwart supporter of gay legal equality, penning decisions overturning the sodomy laws that Bork defended, and holding that states could not use anti-gay animus as a justification for denying constitutional rights to gay people.

The court will shortly rule on the constitutionality of the anti-gay Defense of Marriage Act. Now, former House Speaker Newt Gingrich has announced a change of heart on the issue of marriage equality, from virulent opposition to resigned acceptance. And thus progress is made.

More. Former Nebraska Sen. Chuck Hagel, a Republican, has retracted homophobic comments he made 14 years ago, as his hopes to be nominated as Secretary of State dim. Barney Frank is unforgiving (but we should all forget Frank’s shameful role in the Fannie Mae/Freddie Mac meltdown, and all his other personal and political scandals).

If we don’t let people (that is, Republicans) evolve on gay issues, then why should they evolve? But the last thing progressive Democrats want to see is a GOP that could actually compete for gay votes.

Still more. The Log Cabin Republicans also are wrong to oppose Hagel based on now-recanted anti-gay views. If they want to oppose him because of foreign policy disagreements, fine. But to tell Republicans it doesn’t matter if they evolve is directly counter to the group’s mission.

Furthermore. Glenn Greenwald finds the LCR ad suspicious, for several reasons.

And more still. James Kirchick argues that not to evolve until a Cabinet post is dangled in front of you, and then to do so half-heartedly, is not to evolve at all. It’s about the best argument in support of LCR’s position, but I tend to agree that the opposition to Hagel has more to do with his perceived weakness on support for Israel and opposition to Iran (and his positions are certainly open to debate), then on gay matters. And if that’s the case, then LCR has been played. I hope it doesn’t indicated what the post-R. Clarke Copper leadership will be like.

Walter Olson takes the GOP’s social conservatives to task for their erroneous belief that opposing equality for gay people will attract anti-gay black and Hispanic voters:

Suppose the party were to drop its odd view of minority voters as motivated mostly by (and in favor of) social conservatism. It might instead choose to appeal to them on the same grounds as other citizens; that is, by emphasizing questions of fiscal soundness, better grasp of national defense and the needs of small business, and other historic themes from the long-past Nixon-Eisenhower era when Republicans used to do better with the minority vote. Alternatively (or in addition), it might resolve to listen to what minorities actually say about why they view the parties the way they do, perhaps with a special ear to the voices of younger voters who might be more open to rethinking old political habits.

But that would take some fresh thinking. One thing is for sure, we’re unlikely to see it from the likes of anti-gay Sen. Jim DeMint, newly appointed head of the socially conservative Heritage Foundation, which was instrumental in getting the annual Conservative Political Action Conference (CPAC) to ban GoProud, a gay conservative group.

An interesting new study looks at the genetic link to homosexuality and explains why identical twins do not always have the same sexual orientation:

Long thought to have some sort of hereditary link, a group of scientists suggested Tuesday that homosexuality is linked to epi-marks—extra layers of information that control how certain genes are expressed. These epi-marks are usually, but not always, “erased” between generations. In homosexuals, these epi-marks aren’t erased—they’re passed from father-to-daughter or mother-to-son, explains William Rice, an evolutionary biologist at the University of California Santa Barbara and lead author of the study.

Another nail in the coffin of the “it’s a choice” crowd, whether religious fundamentalists on the right or queer theorists on the left.

The U.S. Supreme Court has agreed to hear challenges to the anti-gay Defense of Marriage Act (DOMA), which bars the federal government from recognizing state-sanctioned same-sex marriages. That was expected. What wasn’t so clear was whether the high court would also hear the challenge to California’s Proposition 8, through which voters amended the Golden State’s constitution to nullify same-sex marriage, which the legislature had authorized. Had the court not heard that challenge, an appellate court ruling against Prop 8 would have been upheld by default and California’s same-sex couples would have again been able to marry (which is why many had preferred the court take a pass on this one).

It is widely anticipated, and hoped, that the Supreme Court will recognize that the DOMA provision banning federal recognition is unconstitutional, treating gay couples as second-class citizens, and doing so on the basis of anti-gay animus. Moreover, while the court might now uphold Prop 8 and deny Californians marriage equality, there is at least the possibility that the court, through its Prop 8 decision, could declare that all states must allow same-sex marriage as a matter of equal protection under the law. Would that provoke a backlash that could strengthen the anti-gay contingent of the GOP? Probably. There is a sound argument that it would be better in the long run to let marriage equality advance through the states (as Jonathan Rauch argues here). There is also an argument that equal means equal. These are indeed interesting times.

More. Walter Olson expects the Supremes to punt.

Furthermore. James Taranto argues that constitutional law favors striking down the DOMA provisions, but upholding Prop. 8. If the court agrees, another California vote on same-sex marriage is likely, and more likely this time to favor marriage equality.

More still. Conservative infighting: Rod Dreher vs. Glenn Beck. And similar infighting within the British Conservative Party (more on that here).

Roger Simon, at PJ Media, tries to tell social conservatives some truths:

But first, a heavy dose of reality: Unlike abortion, where public opinion is going in the social conservative direction for various reasons (including sonograms), on gay marriage, it’s the fourth quarter, the score is about 80-0 and you’re on the your own five yard line with two minutes to go.

De facto gay marriages have existed in significant numbers in every one of our major cities and a lot of our suburbs for decades. Every year, the vote in favor of legalizing same-sex marriage is greater, recently winning in several states, and is likely to increase since the young vastly favor it. If you don’t think it’s going to be a fait accompli in the Western world in twenty-five years (probably considerably sooner), you’re living in cloud-cuckoo-land.

But see the blowback below Simon’s column from his commenters. Many are those who will not hear.

A large number of social conservatives seem unable to to move beyond the fabled “Reagan Coalition” of the 80s that brought together economic libertarians and the religious right. It was electorally successful through the Bush years, but those days are no more, at least in terms of the political acceptability of anti-gay animus. And so, the question posed in the heading.

More. Walter Olson writes in a Washington Post op-ed:

Despite the GOP’s historic identification with individual liberty and with getting the government’s nose out of citizens’ business, no one expects it to endorse same-sex marriage anytime soon. But one plausible path would be a GOP call for leaving the issue to the states, with New York going one way, for instance, and Texas another. That would probably capture a consensus among a broad range of active Republicans, fit reasonably well with the party’s other ideological stands and still distinguish its position from the Democratic Party’s support for same-sex marriage in its 2012 platform.

The GOP has left itself little room to maneuver. When some in the Romney campaign took an interest in the “leave it to the states” position this fall, they discovered that the candidate, like several of his former rivals for the nomination, had already signed a pledge circulated by the National Organization for Marriage committing him to support a constitutional amendment to ban same-sex marriage. Although many national polls now show support for marriage equality, the national Republican platform continues to endorse the same deeply out-of-touch proposal.

If and when the party’s leadership changes its mind, a whole lot of suburban Republicans will be murmuring under their breath, “About time.”

Political strategist Reed Galen, who was John McCain’s deputy campaign manager, writes at Real Clear Politics:

For those of us that grew up in an urban or suburban setting, friends of other ethnic or religious backgrounds were a given. The idea that a political party has steered itself (or allowed itself to be led) down a path that excludes, actively or passively, those who simply look different or lead dissimilar lives is ridiculous.

These positions also shine a klieg light on the GOP’s cognitive dissonance that’s been incubating for a generation. Republicans can’t be the party of smaller government, individual self-determination and self-reliance and also hold impenetrable positions on social issues ranging from abortion and gay marriage to assisted suicide and capital punishment.

More. Jim Geraghty writes at National Review that Republicans need to confront why their party is less popular than its conservative economic ideas (which a majority of Americans say they support, as long as they’re not attached to Republican candidates). Among his examples of how the party alienates voters it should seek to include:

It seems to be a knee-jerk, not-really-in-jest comparison when some conservatives discuss the issue of gay marriage: If two men or two women can get married, why not a man and an animal? … At a recent conservative gathering, one well-known pundit exclaimed, “Why can’t I marry my cat?”

Now, think about how this argument sounds to any gay or lesbian [person] or to anyone who loves them — to their mothers, fathers, brothers, and friends. It takes a consensual relationship that more and more Americans see practiced by their friends, neighbors, and relatives and equates it with criminal acts, among the most reviled in our society. Put another way, if some jerk in a bar came up and compared your relationship to your spouse to bestiality, you would probably be sorely tempted to knock his teeth out.

What’s significant is that this ran in National Review. It’s a sign of the times.

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Those who are libertarian-minded can take heart from this election analysis by the head of the highly regarded Pew Research Center, who writes:

…on balance, Americans remain moderate—holding a mix of liberal and conservative views. They generally believe that small government is better and that ObamaCare is bad. But the exit poll shows that 59% believe abortion should be legal, 65% support a pathway to citizenship for illegal immigrants, and a surprising plurality support legalizing same-sex marriage in their states. Threading the ideological needle with this electorate is vital for the Republicans in the future—and for the Democrats, too.

Democrats run the risk of over-reaching (again) if they think the election was a vindication for bigger and bigger “progressive” government.

More. A similar analysis, via the L.A. Times, “Has America gone from center-right to center libertarian?“:

the majority of the country remains slightly right of center when it comes to supporting lower spending, decreased debt and smaller government. But America appears to have shifted left of center in allowing more liberal policies on drugs and the institution of marriage. So, left on social issues and right on economics.

But that’s not the message being heard by the Obama administration, congressional Democrats and progressive activists, nor by many Republican officeholders and social conservative activists.

Furthermore. Waltor Olson has further analysis of how, in Maryland, GOP support was crucial for victory in the marriage referendum:

Republicans voted for Question 6 [in favor of marriage equality] in serious numbers around all the state’s major centers of population: in the Baltimore and Annapolis areas, in the suburbs of Washington, D.C., and in Frederick. And while the trend showed itself everywhere from small farm towns to blue-collar suburbs, it appears to have been strongest in the best-educated and most economically successful Republican communities. …

This spring, President Obama famously announced that his views on same-sex marriage had evolved. Faster than almost anyone seems to have predicted, views appear to be evolving among educated Republican voters in states like Maryland, as well. When will the leadership of the GOP get around to evolving, too?

More still. David Lampo writes, “Stop damning Republicans and start talking to them”:

It is time for gay rights leaders and supporters to embrace pro-gay Republicans and work with them to develop a long-term strategy that brings the message of freedom and social tolerance to every Republican leader and candidate and does not allow the religious right to frame these issues to their fellow Republicans through the lens of bigotry and intolerance. Only then can a strong, truly bipartisan movement for gay rights blossom.

Well, LGBT movement leaders could start by not working overtime to defeat leading gay-supportive Republican officeholders, like soon-to-be former Sen. Scott Brown. Alas, a “strong, truly bipartisan movement for gay rights” is the last thing these party hacks want.

Via the L.A. Times: “Voters in Colorado and Washington easily passed ballot initiatives — 55% to 45% in each state — to legalize the possession and sale of marijuana. … What transpired in Colorado and Washington were disciplined efforts that forged alliances between liberals and tea party conservatives, often using public health arguments to advance their cause.”

In those states, drug legalization activists recognized that small government (or even anti-government) tea party activists could be allies in seeking to protect individual liberty against an overreaching state, even in areas in which the government has been overreaching for decades.

We don’t see this tactic in the fight for marriage equality, however. One reason is that the government power issue is not as clear cut – we want to stop the federal government from telling states they can’t recognize same-sex marriages, and from actively discriminating against same-sex couples. On the other hand, some gay marriage advocates clearly would like the federal government to tell states they must recognize same-sex marriage, which may be defensible as a civil rights matter but is less likely to resonate among tea party conservatives.

Still, I and others of a libertarian bent have long sought more dialogue among tea party people and the gay-equality movement. A big reason that this has not occurred is that many progressive LGBT activists have joined with their compatriots on the left in thoroughly demonizing tea party types and conflating them with the religious right (of which there is some overlap, but not nearly to the extent that progressives have portrayed). In other words, if your political agenda as an LGBT activist is bigger and more intrusive government, economic redistribution to favored political classes, and higher taxes on wealth producers (that is, the Tammy Baldwin/Elizabeth Warren dream world), then seeking to work with libertarians in the tea party movement is going to be a non-starter from the get go.

More. Have tea party voters helped elect anti-gay religious rightists? Yes, but that’s not to say that they voted for them because of their socially conservative positions; they often seem to do so despite those positions because they see the conservatives as better on economic liberty, size-of-government issues. The current left/right partisan divide doesn’t present a clear pro-liberty option, forcing supporters of limited government to pick their poison.

Furthermore. Former Clinton advisor David Mixner, citing analysis by the Cato Institute’s Walter Olson, notes that Republican crossover votes were a key factor in the Maryland gay marriage victory, and that “in some very key counties it was clear that those who voted for Mitt Romney overwhelmingly also ended up supporting marriage equality.”

Progress is possible when Repubicans aren’t simply written off. But that requires gay alliances to break free from the control of Democratic party operatives whose goal is to turn them into party front (and fundraising) groups.

Still more thoughts on the future of the GOP from David Boaz. And from a “lonely college Republican.”

A GOP strategist asks, “Why should we sign a suicide pact with the National Organization for Marriage?”