Author Archives: Stephen Henry Miller

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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Waiting, Waiting…

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In the meantime, the Washington Post looks at, in quite a reversal, How kids became the strongest argument for same-sex marriage:

As the Supreme Court prepares to hand down what may be a historic decision on whether gay couples have a constitutional right to marry, the children of these couples have been at the heart of the debate. Gay rights activists have turned old arguments on their heads, putting the more than 210,000 American children being raised in same-sex-couple households at the core of their closing arguments.

Advocates have seized on the words of Justice Anthony M. Kennedy, who in striking down the federal Defense of Marriage Act two years ago wrote that the law “humiliates tens of thousands of children” being raised by gay parents. Taking the cue, groups have put these children’s stories front and center in campaign ads, on rally stages and in legal briefs.

Save the children.

More. David Boaz reminds that Libertarians Have Long Led the Way on Marriage.

While on the libertarian angle (yes, I know it’s a tangent), there’s this: gay Libertarian Party members denied a booth and barred from attending Washington State’s 25th anniversary Capital City Pride festival (held in Olympia) for supporting Second Amendment rights.

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GOP Shows Signs of Change and Resistance

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The Cato Institute’s David Boaz argues that the GOP’s gay marriage silence speaks louder than words:

Republican candidates and their advisers know that opposition to same-sex marriage remains strong in their base, but that more than two-thirds of young voters support it. Campaigning against gay marriage is a good way to make the Democratic advantage among young people permanent.

Sometimes social change happens when people announce a change of heart. Sometimes you know it’s happening when one side tries to change the subject. That sound you don’t hear right now, of major Republican candidates making gay marriage a key issue in their campaigns? That’s the sound of social change happening.

A counter argument might point out that Ted Cruz introduced legislation to establish a constitutional amendment shielding states that define marriage as between one woman and one man from legal action, and Scott Walker indicated he would support the amendment if the Supreme Court rules in favor of marriage equality. Also, there’s no doubt about the opposition to same-sex marriage by Mike Huckabee and Rick Santorum.

But that may be missing the forest for the trees. Given the likelihood of a Supreme Court decision in favor of marriage equality, the fact that the GOP leading contenders have not made the campaign against same-sex marriage central to their efforts is a sign of progress.

One point that should be addressed in the debate over whether the GOP is actually changing is the meme repeated by the LGBT left that voicing support for religious liberty is nothing but code for anti-gay discrimination. For instance, the Washington Blade reports as evidence, in their view, that Bush is “doubling down on opposition to anti-gay marriage” the following:

“This conscience should also be respected in people of faith who want to take a stand for traditional marriage,” Bush said [at the Faith & Freedom Coalition conference in D.C.]. “In a country like ours, we should recognize the power of a man and a woman loving their children with all their heart and soul as a good thing, as something that is positive and helpful for children to live a successful life.”

The phrase “traditional marriage” is often used by conservatives and especially by Bush to mean opposition to same-sex marriage.

And yet….

Bush didn’t articulate any policy measure by which he would seek to oppose same-sex marriage. He hasn’t yet spoken this campaign cycle on whether he’d back a U.S. constitutional amendment banning same-sex marriage — an idea that GOP hopefuls Ted Cruz, Bobby Jindal and Scott Walker have endorsed.

Hardly seemed like “doubling down”; more like tossing the religious right a bone.

Elsewhere the Blade informs us:

Bush didn’t mention LGBT issues during his [campaign annoucement] speech per se, but criticized Clinton for what he said was her failure to stand up for religious freedom, which many observers read as code for anti-LGBT discrimination.

“These have been rough years for religious charities and their right of conscience, and the leading Democratic candidate basically hinted at more trouble to come,” Bush said. “Secretary Clinton insists that when the progressive agenda encounters religious beliefs to their contrary, those beliefs quote, ‘have to be changed.’ That’s what she said. That’s what she said, and I guess we should at least thank her for the warning.”

If you believe that the future of LGBT Americans lies in ensuring no religious exemptions from anti-discrimination law for religiously affiliated charities and schools, and that independent small vendors with religious-conscience objections must be forced to rectify their thinking by accepting gigs celebrating same-sex weddings or else suffer exorbitant fines and be driven out of business by the state, then I suppose religious freedom would be something you would favor stamping out.

More. John Ward writes, perceptively, at Yahoo! Politics:

Bush has done the most work, by far, of any 2016 Republican presidential candidate to lay out an intellectual framework from which to argue that a compromise can be reached between the LGBT community and religious conservatives. “I think we’re a big enough country and a tolerant enough country to allow for both to exist. I don’t believe we should discriminate against people,” Bush said in New Hampshire. “But I certainly don’t think we should push aside the big and caring hearts that people — when they act on their faith — to be able to make a difference in the lives of people.” …

On the question of gay marriage, Bush has said he personally believes marriage is between a man and a woman and that he does not think gay marriage is a constitutional right. But … Bush’s communications director is openly gay, and some of his closest aides are supporters of gay marriage.

For these and other reasons, Christian conservatives have so far tended to be lukewarm about Bush. But if he continues to make a robust defense of their point of view in the debate over religious freedom, that could change, especially if other Republicans steer clear of the issue except when it’s the focus of controversy and they’re put on the spot.

The religious right is pulling back to a defensive position around freedom of conscience for religious conservatives. The progressive left feels it’s now occupying the commanding heights and is rejecting what were recently seen as common-sense compromises (i.e., religious exemptions from anti-discrimination laws).

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Transgender/Transracial?

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The Rachel Dolezal cisracial/transracial meme isn’t doing the fight for transgender acceptance and equality any favors. While some social conservatives are warning of a slippery slope and suggesting that transracialism will allow self-identification with other races in a way that opens an entitlement floodgate, some progressives seem to be, gingerly, starting to question whether the appropriate social justice warrior position might be to defend transracial identity:

MSNBC’s Melissa Harris-Perry entertained the notion on her show today with kind of a huge question. “Is it possible that she might actually be black?”

While not wanting to make the transgender comparison, Harris-Perry questioned whether one can be “cisblack and transblack,” and whether there’s a way to describe “the achievement of blackness despite one’s parentage.”

Alyson Hobbs, who literally wrote the book on “racial passing,” said there’s “certainly a chance that she identifies as a black woman and there could be authenticity to that.”

Here’s a wrap-up of others willing to entertain the idea that racial self-identification can be more “authentic” than one’s birth race.
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The DeMaio Lie

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What some of us could see all along; the smear campaign against openly gay San Diego congressional candidate Carol DeMaio a Republican, was all a lie, and one that cost him the election (he had been leading in the polls against his Democratic opponent before the smear was unleashed; he lost by a razor-thin margin). So, in a campaign characterized by the LGBT left’s vehement opposition to DeMaio, partisan dirty tricks cost us an openly gay GOP congressman.

As I’ve said before, because it’s true, the worst nightmare of LGBT progressives is that the GOP should become less anti-gay.

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Magistrates and Marriage: They’re Not Private Citizens

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Win some: Florida Gov. Scott Signs Repeal of Gay-Adoption Ban, Despite Vocal Opposition. Lose some: North Carolina Okays Opt-Out for Officials Who Oppose Same-Sex Marriage.

Interestingly, two GOP governors tried to do the right thing (in North Carolina, the legislature overrode a veto by Gov. Pat McCrory).

The Cato Institute’s David Boaz shared this comment on his Facebook page:

Well, I’m sorry to say that the North Carolina House has NOT recognized its constitutional obligation to offer equal justice to all citizens. Instead it has joined the Senate in overriding the governor’s veto of a bill exempting magistrates (the only civil officers authorized to perform marriages) from performing same-sex marriages if they have a religious objection.

As I said previously, this seems clearly wrong. Private citizens — florists, photographers, caterers — should not be forced to participate in ceremonies that offend them. Marrying couples can find another florist or baker who wants their business. But the government represents all citizens. Officers of the court must serve all citizens. By the way, the mission statement of the NC Magistrates Association is “The mission of the Magistrate is to protect and preserve the rights and liberties of all of the people, as guaranteed by the Constitution and laws of the United States and North Carolina, by providing a fair, independent and accessible forum [for] the just, timely and economical resolution of their legal affairs.” Under the new law they will insert “except the gay ones” after “all of the people.”

I made a similar point in an April post:

There is a key difference between private, self-employed citizens who don’t want to provide creative services to same-sex weddings, and servants of the state.

While some of my friends on the left seem to think everyone is essentially (or should be) treated as a servant of the state, that’s actually not the American way, and shouldn’t be.

But, on the other hand, if government officials can’t perform their duty to treat all citizens equally, citing their own religious convictions, then they should step aside. Separation of church and state is also the American way.

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Make It So

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Patrick Stewart believes in freedom, especially expressive freedom. In defending a baker’s right not to bake a cake with a pro-gay-marriage message, he explained:

In my view, this particular matter was not about discrimination, but rather personal freedoms and what constitutes them, including the freedom to object. Both equality and freedom of speech are fundamental rights—and this case underscores how we need to ensure one isn’t compromised in the pursuit of the other.

The arguments of progressive LGBT activists that it’s not ok for a religiously conservative baker to refuse to make a cake with a pro-gay-marriage message, but it is ok for a gay baker to refuse to bake a cake with an anti-gay-marriage message, is all too typical of the strained logic that amounts to whatever progressives want, the state should make sure they receive. And if this limits the expressive rights of their opponents, it’s a bonus!

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Feminists vs. Transwomen

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In the New York Times, feminist Elinor Burkett writes What Makes a Woman?:

For me and many women, feminist and otherwise, one of the difficult parts of witnessing and wanting to rally behind the movement for transgender rights is the language that a growing number of trans individuals insist on, the notions of femininity that they’re articulating….

Many transwomen and transmen embrace psychological distinctions between men and women that some feminist claim are purely cultural and represent patriarchal oppression. I believe there are, speaking generally, innate psychological tendencies between (most) men and (most) women that these feminist reject, although there are also exceptions, which may be more likely (although not exclusively) to be seen among gay men and lesbians (and even here, to be sure, not all gay men are more feminine than straight men, and some are hypermasculine leathermen; likewise, there are “lipstick” and “butch” lesbians), so it gets messy.

More. Like Caitlyn Jenner, women are far more likely than men to prefer frilly underwear. That’s not meant to be flippant; the fact that Jenner appeared on the cover of Vanity Fair in sexy lingerie was one of the transgressions, so to speak, that provoked Burkett’s column. To claim that women don’t generally prefer stereotypically feminine underwear, or if they do to claim it’s because of cultural norms imposed by the patriarchy, is, I think, silly.

That said, despite the general trend, some women don’t prefer frilly underwear and some men do.

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