Author Archives: Stephen H. Miller

Pandering and Ploys

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In his recent Wall Street Journal op-ed, How the GOP Can Avoid Becoming the Pan Am Party, Andy Puzder, CEO of CKE Restaurants, wrote:

Gay rights is another issue in which Republicans risk alienating potential conservative voters, particularly younger ones. It is reasonable to believe that the states and the people should determine what constitutes marriage, not five justices. But the Supreme Court ruled last month in Obergefell v. Hodges—and it’s over.

There has been talk of a constitutional amendment to overturn the decision, and candidates should drop it. That would require a two-thirds vote in both houses of Congress and ratification by 38 of the states. The chances of that happening are nil. More than 35 states had already legalized same-sex marriage before Obergefell, and Pew Research found in June that 57% of Americans and 73% of millennials favored it. It’s counterproductive for Republicans to look like social Neanderthals to a majority of Americans and a supermajority of young voters. There are better issues for the GOP—religious liberty, for instance.

Wisconsin Gov. Scott Walker obviously disagrees, and last week doubled down on his courting of evangelicals in Iowa (where he leads in the polls) and the Deep South by condemning the Boy Scouts of America’s recent moves toward allowing openly gay scoutmasters. Walker said the Boy Scout’s current exclusionary policy “protected children and advanced Scout values.” Two days later, following an uproar over equating gay adults and pedophiles, Walker tried to, well, walk that back somewhat, but not very convincingly.

Jeb Bush had a better week, as he continues to try finding a course that recognizes reality without further alienating the GOP’s socially conservative base:

He added that in the wake of the Supreme Court decision to legalize same-sex marriage nationwide, the country must work to carefully balance the rights of those seeking to marry and the religious beliefs of those who oppose those unions.

Citing the frequently-used example by religious freedom advocates, Bush said that in the case of a florist approached by a gay couple, “you should be obligated to sell them flowers, doing otherwise would be discriminatory.” But he said that the objecting florist should not be required to participate in the wedding, a fine line that he hopes will appeal to all sides of the debate.

When the employee followed up to ask specifically whether he would support anti-discrimination laws for LGBT Americans for their housing and employment—the next target for gay rights marriage advocates—Bush said he would at the state level.

The state-level ploy isn’t going to win many adherents on either side, but at least he’s trying to find a consensus on anti-discrimination and religious liberty that might be an alternative to the outraged polarization that dominates the argument today.

More. David Lampo, who serves on the national board of the Log Cabin Republicans, explains Yes, Governor Huckabee, Gay Rights Are Civil Rights. Posted on the conservative Daily Caller site, not the liberal echo chamber.

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The EEOC’s LGB Fiat

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The Equal Employment Opportunity Commission (EEOC) has ruled, 3 to 2, that Title VII of the Civil Rights Act of 1964 bars sexual orientation-based employment discrimination as a form of sex discrimination, which Chris Geidner at BuzzFeed called “a groundbreaking decision to advance legal protections for gay, lesbian, and bisexual workers.”

The EEOC’s ruling deals with sexual orientation (lesbian, gay, bisexual); the agency had previously found that discrimination on the basis of gender identity, transitioning, or transgender status was covered by the civil rights statute as sex discrimination, and has sued employers on that premise.

But as Walter Olson of the Cato Institute has noted in a series of posts, including here, courts have built a record of knocking down the EEOC on its stretchy interpretations of law. (Geidner’s article claims the contrary, but Olson’s evidence seems persuasive.)

To the extent that an employer could, say, fire a lesbian employee based on provable bias but not fire any of the heterosexual women it employs, the claim of anti-female animus (the basis of what has generally been deemed sex discrimination under the statute) would seem difficult to prove. Still, it will be interesting to see how this plays out, and it could even end up before the Supreme Court.

More. From libertarians who strongly support same-sex marriage. Walter Olson blogs: EEOC: Let Us Imagineer ENDA For You. And from Scott Shackford at Reason.com: EEOC Attempts to Administratively Implement Protections Against Anti-Gay Discrimination.

From our comments, Craig123 writes:

You can support nondiscrimination and still think the EEOC sholudn’t be stretching the law beyond its limits, because if (as is widespread under this administration) the law means anything that a federal agency says it means, some day an administration you don’t like is going to come in and declare, by fiat, that all the laws you like don’t actually say what they say.

These are valid concerns not to be lightly dismissed or, per some, vilified. It’s also possible that the EEOC’s ruling, if it stands, would be less offensive to individual liberty than the broad federal statute activists now demand, applying the race-discrimination standard to sexual orientation regarding employment and public accommodations (which, for them, includes providing creative services in support of same-sex weddings, with no religious exemptions).

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Our Real Enemies

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The Washington Post ran an op-ed on July 13, An International War on LGBT People, by editorial page editor Fred Hiatt, that recounts how “while 25 countries and territories now allow gay marriage, 75 nations treat homosexual behavior as a crime. In 10 countries, it is punishable by death—and even where it is not, just being gay is often fatal.”

It’s an old story, as:

authoritarian governments fan hatreds to distract people from their failures and keep themselves in power. The Islamic State kills and tortures gay people—but the virulently anti-Islamist military dictators in Egypt have been persecuting gay men and lesbians as well. Russian President Vladimir Putin… turned to homophobia and “traditional values” to safeguard his grip on the Kremlin. Like dictators from Uganda to Uzbekistan, Putin defends his bigotry as a rampart against permissive “Western values.”

The Wall Street Journal had a similar op-ed on June 26, Love Among the Ruins, by the paper’s associate book review editor Bari Weiss, who took aim at the “moral relativism [that] has become its own, perverse form of nativism among those who stake their identity on being universalist and progressive,” and asked:

How else to understand those who have dedicated their lives to creating safe spaces for transgender people, yet issue no news releases about gender apartheid in an entire region of the world? How else to justify that at the gay-pride celebrations this weekend in Manhattan there is unlikely to be much mention of the gay men recently thrown off buildings in Syria and Iraq, their still-warm bodies desecrated by mobs?

She concluded, “You can’t get married if you’re dead.”

More. Last year, David Boaz noted, in Authoritarian Governments Use Old Smears to Tear Down Their Opponents, that dictators use homophobia as they previously (and often still) used antisemitism, to attack free-market capitalism that is the foundation of classical liberalism (the language gets a bit confusing because he uses “liberal” in its original, limited-government sense, not the way it’s been co-opted by the American left). Boaz wrote:

All of these epithets—homosexual, Jewish, bourgeoisie, and more recently, “American”—have been staples of illiberal rhetoric for centuries. Liberals–advocates of democracy, free speech, religious freedom, and market freedoms—have been tarred as “cosmopolitan” and somehow alien to the people, the Volk, the faithful, the fatherland, the heartland.

Furthermore. Alexander McCobin writes The gay rights battle is not over for libertarians, explaining that “There is both a need and an opportunity to help end state-sponsored discrimination against homosexuals across the globe. The US libertarians and LGBT rights movements should be involved in accomplishing such a worthy goal.”

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Illiberal Liberals Endanger Everyone’s Rights

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IGF sometimes guest blogger Walter Olson has penned a piece over at Richocet explaining why Oregon’s “cease and desist” order is “not a result liberals should applaud.” Excerpt:

Even more remarkably, the state agency had demanded damages from the Kleins over the very fact of media coverage sympathetic to their cause, which was said to have inflicted further trauma on their adversaries’ eggshell psyches. While [the Commissioner of the Oregon Bureau of Labor and Industries, Brad Avakian] declined to grant a separate award of damages under this heading, he still declared the Kleins’ statements in their own defense “unlawful.”

The implication is clear enough: if locked in a legal battle with Oregon authorities, you may not have a legal right to rally your supporters with statements like “This fight is not over” and “We will continue to stay strong.”

Some day the attempt to strip opponents of progressivism of their fundamental rights is going to come back and be used against progressives themselves, who will then deny they had ever advocated such a position.

More. This gay baker shows that authoritarian zealots don’t represent all LGBT people.

Furthermore. Eugene Volokh of The Volokh Conspiracy shows that Raw Story got it wrong by claiming that the bakers were fined for publishing the home address of the lesbian couple that brought the complaint. In a separate post, Volokh elaborates:

I think that Walter Olson (Ricochet), who is a supporter of same-sex marriage, and Ken White (Popehat) are right to criticize this part of the commissioner’s ruling [barring speech that shows an intent to discriminate]…. The bakers may rightly worry that, given the commissioner’s relatively broad understanding of what constitutes a statement of intent to discriminate, the commissioner (and the courts) will read his order equally broadly.

More from Walter Olson here on misreporting of fact by bloggers on the left and right, whose misstatements are then sent zooming around the internet.

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Support for Liberty Grows

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Despite steadily increasing support for same-sex marriage equality, “the percentage of people who agree that wedding service providers should be required to serve same-sex couples has fallen to 38% from 52% in 2013,” a 14-point drop in two years, according to the 2015 State of the First Amendment study by the Newseum and USA Today.

Correspondingly, “Americans’ support for the First Amendment rebounded strongly over the past year,” specifically, three-quarters of Americans say the First Amendment, protecting freedom of speech, of the press, and of religion “does not go too far,” a jump from 57% last year.

This rise in support for expressive and religious liberty is occurring as LGBT activists gear up to switch from fighting for marriage equality to fighting to deny the right of religious dissent. This trend is exemplified by Evan Wolfson, founder and president of Freedom to Marry, who has come out strongly against religious exemptions for businesses in the proposed federal Employee Non-Discrimination Act (ENDA), a position he seems to be doubling down on after the marriage victory.

Even those with whom we strongly disagree about gay rights and equality have fundamental rights as Americans that must be protected, or else we will all suffer from the results when the state, backed by progressive activists, declares their freedoms denied.

More. In response to those who defend using the state to destroy small businesses that don’t toe the correct line, commenter Craig123 quotes Marx (facetiously, I think), who warned progressives that “The petite bourgeoisie is the most reactionary of classes” and thus must be pulled up by its roots. Given that other commenters have in prior posts charged this blog with “homocon idiocy” while themselves spouting the anti-capitalist anarcho-syndicalist ideas of Noam Chomsky (replacing corrupt private ownership with workers councils and all that), you get a sense of what some of them, in their fervid dreams, are really after—if only those outmoded individual rights can be put asunder.

Furthermore. Why I Support ‘No Gays Allowed’ (via the Huffington Post, and penned by C.J. Prince, executive director of North Jersey Pride, in case you thought it was by some self-loathing “homocon”). She writes that “As a strong supporter of freedom of speech and freedom of religion”:

I do not want to order a wedding cake from a bakery owned by a guy who thinks I’m going to hell. I have no desire to purchase bouquets from a florist who pickets Pride parades. …

If you don’t support my freedom to marry, have the guts to come out about it. Exercise your constitutional right to free speech, and I’ll support that. Then I’ll exercise my capitalist right to shop from your competitor—and to proudly put my money where my allies are.

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Fissures and Alliances

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At the conservative Washington Examiner, Philip Klein predicts Social Conservatives and Libertarians Will Get Married:

Perhaps fiercer than any of these fights is the long-standing conflict between social conservatives and libertarians. But when the Supreme Court legalized same-sex marriage last month, they created an opening for a wedding between these two groups, which could benefit the Republican Party ahead of the 2016 election. . . .

But as the dust settles on the Supreme Court decision legalizing gay marriage, it’s becoming clearer that the debate over the issue is going to shift to one of religious freedom. And on that issue, there’s much more of an opening for libertarians and social conservatives to get along. . . .

But with gay marriage legal, the cultural debate has been moving to issues such as: Should a religiously observant baker or photographer be forced to participate in gay weddings? Or, should a Catholic Church be forced to perform gay marriages?

Whatever their differences on the underlying issue of homosexuality and gay marriage, it will be hard for many libertarians to justify any sort of government coercion forcing individuals to violate their deeply held beliefs. As a result, they’ll find themselves increasingly — and begrudgingly — on the same side as social conservatives on many of the looming debates.

Over at the libertarian Reason.com, Scott Shackford strikes a similar note, in Is This Where Libertarians and the Gay Community Part Ways?:

But just because libertarians and gay citizens were aligned in the pursuit of ending government mistreatment, that doesn’t mean other goals line up. Libertarians draw that bright, hard line between government behavior and private behavior. Others often do not, and what many gay activists see as justice and equality in the private sector, libertarians see as inappropriate government coercion.

Highlighting some of these contentions, William McGurn in the Wall Street Journal (A Win on Marriage: Now Protect Faith) addresses whether, for instance, religiously affiliated schools should be denied tax-exempt status for refusing to extend campus housing benefits given to opposite-sex married couples to same-sex spouses:

As part of a reasonable compromise that includes solid antidiscrimination provisions in education and housing, supporters of same-sex marriage should accept legislative language that prohibits the federal government from withholding or withdrawing tax exemptions from institutions solely on the basis of their opposition to Obergefell.

Underlying these specific issues—and others that will be even harder to resolve—is an urgent question: How can people with fundamentally different views peacefully coexist within the same political community? Except when confronted by pure evil, a generous pluralism is almost always the best course, as is magnanimity in victory.

I think most LGBT people, as opposed to LGBT activists and ideologues (whether beltway professionals, regional zealots, or correct-line-upholding blog commenters) are fine with live and let live, and don’t particularly wish to find and punish the tiny number of small service providers that have religious objections to gay weddings, or force religious schools to violate their faith principles. But activists need a mission. If they are intent on declaring religious freedom and dissent unacceptable hate behavior that must be rectified by the state, then this will, indeed, be a cause unacceptable to those who respect individual liberty.

More. Progressives clap and cheer dictates such as this awful ruling. Worse, not only were the bakers fined $135,000 for refusing to bake a wedding cake for a lesbian wedding, but the government has ordered them to “cease and desist” from speaking publicly about not being willing to bake cakes for same-sex weddings based on their religious beliefs, or face further fines. This is why defenders of individual rights and liberty are now at odds with the LGBT left.

Furthermore. More about the “cease and desist” order which is directed at preventing the bakery (now reduced to an online business) or, by extension, others, from stating that their services do not include same-sex weddings. Along with the extreme damages levied against the Kleins, it represents a further assault on their First Amendment rights.

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Polygamy Steps Up

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Now on the horizon:

  • The AP reports that “A Montana man said Wednesday that he was inspired by last week’s U.S. Supreme Court decision legalizing gay marriage to apply for a marriage license so that he can legally wed his second wife.”
  • A commentary in Politico by Fredrik deBoer aruges “It’s Time to Legalize Polygamy, with the subhead: “Why group marriage is the next horizon of social liberalism.”
  • Jonathan Rauch responds (also in Politico) No, Polygamy Isn’t the Next Gay Marriage.
  • Similarly, Cathy Young writes at Time Polygamy Is Not Next.
  • In response, a commentary in by Charles C.W. Cooke at National Review asks Is Polygamy on the Right Side of History?, contending that Rauch and Young are naïve if they think that the polygamous marriage movement isn’t going to ride the same emotional appeal as same-sex marriage.

That’s a lot of focus in the week following the Supreme Court’s landmark gay marriage ruling!

While there are far fewer polygamy advocates than gay people who wanted to marry, it’s clear that the polyamorous are now making the same kinds of arguments that advocates of same-sex marriage equality advanced. I have no idea how this will play out, but the debate is clearly gaining prominence.

More. The Washington Post chimes in with Is polygamy next in the marriage debate?:

Chief Justice John G. Roberts’s dissenting opinion raised the question of whether the court’s rationale could be used to legalize plural marriage down the road.

“Although the majority randomly inserts the adjective ‘two’ in various places, it offers no reason at all why the two-person element of the core definition of marriage may be preserved while the man-woman element may not,” Roberts wrote. “Indeed, from the standpoint of history and tradition, a leap from opposite-sex marriage to same-sex marriage is much greater than one from a two-person union to plural unions, which have deep roots in some cultures around the world.”

Some are now using Roberts’s arguments to revisit the idea of legalized polygamy.

Well, Roberts seems to have opened the door.

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Outsiders No More?

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Via the New York Times, Historic Day for Gays, but Twinge of Loss for an Outsider Culture:

“There is something wonderful about being part of an oppressed community,” [gay historian Eric Marcus] said. But he warned against too much nostalgia. The most vocal gay rights activists may have celebrated being outsiders, but the vast majority of gay people just wanted “what everyone else had,” he said — the ability to fall in love, have families, pursue their careers and “just live their lives.”

I think the overwhelming majority of gay people are happy to trade outsider culture and community for legal equality and social inclusion. But the conflict between those who would celebrate transgressiveness and those who aspire to assimilation goes back a long way, and one of the milestones in favor of assimilation and inclusion was our friend Bruce Bawer’s seminal A Place at the Table.

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A New Day

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A friend remarked that his facebook feed looks like an explosion in a skittles factory (rainbow hues all round). In the aftermath of an historic day, there has been much, much said. I’ll simply point out that our good friend Jonathan Rauch has posted The Supreme Court weds gay marriage to family values and also a look back Here’s how 9 predictions about gay marriage turned out. Both are worth reading.

And because I’m a compulsive GOP watcher, I’ll also note that the Wall Street Journal offers a roundup of responses from GOP presidential wanabees. Jeb Bush comes out best: “I believe the Supreme Court should have allowed the states to make this decision,” but “I also believe that we should love our neighbor and respect others, including those making lifetime commitments. In a country as diverse as ours, good people who have opposing views should be able to live side by side. It is now crucial that as a country we protect religious freedom and the right of conscience and also not discriminate.”

Scott Walker, shamefully, doubled down on his call for an anti-gay-marriage constitutional amendment.

More. Some addition thoughts from Andrew Sullivan, shared with the New York Times. From one of the first and strongest intellectual advocates of same-sex marriage (along with Jonathan Rauch and Bruce Bawer), two points that go against the grain of the current LGBT progressive narrative but are spot on:

The movement succeeded because it made a conservative argument as much as a liberal one. It was crucial to be able to make it in a way that didn’t pigeonhole it as a left-wing issue — in fact, for the first 15 years or so, it was seen as a right-wing issue, particularly in the gay community. It was important to reach out to people like moderate Catholics, who could see what was truly conservative and reformist about this, as opposed to radical and revolutionary. …

I think the main issue now will be protection of religious liberty. Many of us have no problem allowing religious institutions to run their own organizations as they see fit, as long as they are sincere and in good faith. I don’t think they have anything to fear. What we need to express at this point is magnanimity. We’ve got to let people who genuinely find [same-sex marriage] disconcerting the space and time to deal with it. That’s what I would caution and urge.

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Victory for Marriage!

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Truly an historic day.

A 5-4 decision, with the majority opinion by Justice Kennedy. Chief Justice Roberts joined the dissenters (Scalia, Alito, Thomas).

Holding: Fourteenth Amendment requires a state to license a marriage between two people of the same sex. Sixth Circuit is reversed.

Here’s the opinion. Excerpt:

The history of marriage is one of both continuity and change. Changes, such as the decline of arranged marriages and the abandonment of the law of coverture, have worked deep transformations in the structure of marriage, affecting aspects of marriage once viewed as essential. These new insights have strengthened, not weakened, the institution. Changed understandings of marriage are characteristic of a Nation where new dimensions of freedom become apparent to new generations.

This dynamic can be seen in the Nation’s experience with gay and lesbian rights. …

The fundamental liberties protected by the Fourteenth Amendment’s Due Process clause extend to certain personal choices central to individual dignity and autonomy, including intimate choices defining personal identity and beliefs. … Courts must exercise reasoned judgment in identifying interests of the person so fundamental that the State must accord them its respect. History and tradition guide and discipline the inquiry but do not set its outer boundaries. When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.

Justice Kennedy concludes:

No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. … [The challengers] ask for equal dignity in the eyes of the law. The Constitution grants them that right.

More. OK, enough celebrating. Let the political acrimony begin. From The Hill

That partisan divide could complicate the calculus for Republicans ahead of the 2016 election. Hillary Clinton, the current Democratic front-runner, has already incorporated the issue into her campaign, which she launched with a video that included a brief appearance by a same-sex couple.

But every GOP candidate has spoken out against granting a national right to same-sex marriage, so all eyes will be on how the party reconciles that stance with the court decision.

The party and its presidential contenders will have to decide whether to punt on the issue and remove it from the electoral conversation, or to dig in and fight back with a proposal for a constitutional amendment to overrule the court, as Sen. Ted Cruz (Texas) and Gov. Scott Walker (Wis.) have supported.

By November 2016, a GOP nominee who campaigns in favor of voiding hundreds of thousands of legal marriages and leaving the children of these unions with far fewer family protections is going to seem very extreme, I suspect.

Furthermore. Andrew Sullivan: It Is Accomplished. He recalls:

Much of the gay left was deeply suspicious of this conservative-sounding reform; two thirds of the country were opposed; the religious right saw in the issue a unique opportunity for political leverage – and over time, they put state constitutional amendments against marriage equality on the ballot in countless states, and won every time. Our allies deserted us. The Clintons embraced the Defense of Marriage Act, and their Justice Department declared that DOMA was in no way unconstitutional the morning some of us were testifying against it on Capitol Hill. For his part, president George W. Bush subsequently went even further and embraced the Federal Marriage Amendment to permanently ensure second-class citizenship for gay people in America. Those were dark, dark days.

He concludes, “Know hope.”

And this. The front page of the New York Times for Saturday, June 27.

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