Author Archives: Stephen Henry Miller

Out with the Old Intolerance, In with the New

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Some want equality before the law and social inclusion. Others, who feign wanting the same, actually have darker aims and see an opportunity to pursue these by confusing their authoritarian agenda with the cresting fight for liberty.

As Mark Lee writes in the Washington Blade:

The news on the gay civil rights and marriage equality fronts has been nothing short of stupendous of late. Except for the attitudes and behavior of some LGBT people, including many community activists.

Inclination toward ideological hegemony and political retribution of the sort that would make Chairman Mao proud is substitute for an appropriate sense of communal celebration and circumspect congeniality. It seems we’ve become so accustomed to anxiety and alienation that gays don’t know how to be happy. …

Two instances in the past week are clear illustrations.

When generation-spanning Olympian and reality show star Bruce Jenner indicated he’s a conservative Republican, when discussing being transgender in a national television interview, the denunciations and condemnations were swift. Taunts that he’s “self-loathing” or a “traitor” and “despicable” for his political beliefs were emblematic of a lack of tolerance for divergence of thought.

The news that two prominent gay hoteliers, owners of multiple businesses and most of the gay venues on Fire Island, had invited Ted Cruz to a small meet-and-greet to primarily discuss non-gay issues sparked rapid-fire pillory. Lost in the outcry was the fundraising event they had recently hosted for 900 contributors to Hillary Clinton’s campaign. Calls for a boycott of their enterprises ensued and they were reduced to issuing an “apology” to avoid continued harassment….

Why do we remain tolerant of an abhorrent petty mob mentality demanding “groupthink” and pouncing on nonconformists? For all the chatter about a need for “safe spaces” it’s time we create such for one another.

[Added: Subsequently, Reisner revealed:

“In the interest of transparency, I gave Senator Cruz a $2,700 cheque to show my support for his work on behalf of Israel,” Reisner said in a statement [to the New York Times]. “When I realized his donation could be misconstrued as supporting his anti-gay marriage agenda, I asked for the money back. Senator Cruz’s office gave the money back, and I have no intention of giving any money to any politicians who aren’t in support of LGBT issues.”]

More. Via Reason, this cartoon nicely captures the Jenner controversy.

Perhaps a better example to make the point, the Supreme Court arguments, as noted in a Wall Street Journal op-ed, came just four days afer:

in Oregon, an administrative-law judge proposed a $135,000 fine against Aaron and Melissa Klein, proprietors of the Sweet Cakes bakery in Gresham, for the “emotional distress” suffered by a lesbian couple for whom the Kleins, citing their Christian belief that marriage is between a man and a woman, had declined to bake a wedding cake in 2013.

Some have come to think anything that purports to advance “LGBT rights” and that brands itself as “progressive” is by necessity of the light and is thus to be supported without question—especially when the target is religious conservatives and/or Republicans, who themselves can’t possibly have rights worth defending.

Liberal tolerance. Drive them out of business, subject them to penurious fines, and then block their attempts to raise money for their legal defense.

And while you’re at it, attack an unrelated bakery with the same-sounding name:

Though the Smiths are across the country from Sweet Cakes by Melissa, run by husband-and-wife team Melissa and Aaron Klein, their bakery’s strong presence on Twitter has caused it to be the target of “really awful, hateful tweets,” Emily Smith said Thursday.

“People are calling us bigots and say we should rot in hell and are tweeting Bible quotes to us [on Twitter],” said Emily Smith.

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Supreme Arguments

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On the morning of April 28, the U.S. Supreme Court heard arguments in Obergefell v. Hodges, which will determine whether (1) same-sex couples have a right to wed in all 50 states, and (2) whether states must recognize same-sex marriage performed in other states.

There will be much analysis and predicting and guessing, until the decision is issued in June. Since no one knows, it’s at best informed speculation.

This was interesting, from attorney Kevin Russell, via Scotusblog:

There is some reason to wonder whether the Chief might be angling for a compromise in which the states win the first question (i.e., they do not have to permit same-sex marriages to be performed in their states) but lose the second (i.e., they would have to recognize same-sex marriages performed in other states). It’s very hard to read the Chief, but he did ask questions in the second argument expressing some skepticism over the fact that states don’t, in fact, deny recognition to any marriage that does not conform with state law, except same-sex marriages. And, as I mentioned, Justice Scalia asked questions suggesting he might think there was a reason based in the text of Article 4 that would justify ruling for the couples on recognition but not the right to marry. So one could imagine a potential compromise that would effectively allow same sex couples to get married in states that allow it, have their marriages recognized elsewhere, but not have the Court issue a decision that has broad implications for other kinds of sexual orientation discrimination.

But Russell, who has argued 11 merits cases and served as counsel or co-counsel in nearly 50 merits cases before the Supreme Court, also observed:

Kennedy’s relative silence in the second argument may be good evidence that he intends to rule in favor of the couples on the main question — that is, it suggests he will vote to require states to allow same-sex marriages in their own states, which will effectively moot the question of whether they are required to recognize the same-sex marriages performed in other states.

Sexual Orientation Animus or Gender Discrimination?

The Washington Post reported:

[Chief Justice John] Roberts asked a question that neither side had pressed. If a woman wants to marry a man, she can. If a man wants to marry a man, he can’t. Why isn’t that sex discrimination, he wondered.

So perhaps he’s angling for a ruling based on sex discrimination, which might avoid fears of inadvertently opening up marriage to multiple partners. But a question that neither side had pressed?

It hinges on Justice Kennedy, and many remain optimistic he’ll side with the liberals in finding that the 14th Amendment’s equal-protection and due-process guarantees leave no justification for denying marital status to same-sex couples. The fun speculation starts with what if Kennedy is hesitant to go against, in his words, “This definition [that] has been with us for millennia”?

James Taranto, in a column at the Wall Street Journal otherwise fairly unsympathetic to marriage equality, picks up on Chief Justice Roberts query about a ruling based on, in his words, “a straightforward question of sexual discrimination.” Taranto suggests this would, in fact, take care of Justice Sam Alioto’s speculation about opening up marriage, on equal protection grounds, to incestuous and polygamous/polyamorous relationships, noting:

From the premise that men and women are equal before the law, it does not follow that a pair of siblings are the equivalent of a married couple, or that 1+1=4.

If Roberts were to place himself in a position where history would not judge him unkindly, that’s the way he would go.
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[Added: Lawyer friends tell me that that this has to do with the level of equal-protection scrutiny applied during judicial review. The Supreme Court has held gender discrimination to intermediate scrutiny, a notch below the strict scrutiny standard applied to race. Also, by framing a decision in terms of gender discrimination, the court could avoid a ruling with broader implications about sexual orientation discrimination in employment, housing or other contexts.

Put simply, a ruling that overturns state bans against same-sex marriage because government may not discriminate due to animus regarding a couple’s sexual orientation would have wider reach than a decision that overturns state bans because government can’t discriminate on the basis of gender against individuals who want to marry someone of the same sex. For that reason, it’s not what some activists would prefer, and explains why the gender-discrimination argument wasn’t put before the court—and why some conservatives who see a decision legalizing same-sex marriage as inevitable are pushing for using gender discrimination as the basis. But frankly, if it gives us the freedom to marry, I can live with that.

Also, via the New York Times, Gender Bias Issue Could Tip Chief Justice Roberts Into Ruling for Gay Marriage. There’s speculation that behind closed doors Roberts may be offering his support to Kennedy and the liberals if they are willing to go along with a decision on narrower gender-discrimination grounds, because a 6-3 decision would be viewed as more legitimate than a 5-4 ruling.]
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The Wall Street Journal‘s page 1 story picks up on the point where I began this post, that if, again, Justice Kennedy doesn’t swing as far as many expect him to, the likely compromise is to find states must recognize same-sex marriages performed elsewhere:

[Roberts] said it may be “a big step” to find that the 14th Amendment requires all states to perform same sex marriages, but the idea of requiring states to recognize out-of-state marriages under “domestic relations law is pretty straightforward.”

I’m dubious it will come to this “fall back” compromise, but that’s sure looking like the worst case scenario.

And what’s more… Timothy Sandefur parses an Alito absurdity about ancient Greece. And Amy Davidson in the New Yorker on Justice Alito’s Polygamy Perplex.

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Winning in Iowa Means Losing America

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The GOP presidential wannabes who pledged to fight to keep marriage between one man and one woman at the Iowa Faith & Freedom Coalition forum may have boxed themselves in a corner, should the Supreme Court find a constitutional right to same-sex marriage. Campaigning for a constitutional amendment will seem extreme to those outside the hardcore religious right.

But Cruz, Huckabee, Santorum and Jindal seemed to promise to lead an ongoing fight against marriage equality, come hell or high water.

Gov. Scott Walker said: “I still hold out hope that the Supreme Court will rule, as has been the tradition in the past, that the states are the places that get to define what marriage is. If for some reason they don’t … I believe it’s reasonable for the people of America to consider a constitutional amendment that would affirm the ability of states to do just that.”

Marco Rubio reiterated his opposition to same sex marriage, saying: “Marriage as an institution existed before even government itself,” and that “The institution of marriage as between one man and one woman existed even before our laws existed.” But he stopped short of saying how he’d respond if the Supreme Court rules in favor of marriage equality.

And Rand Paul, who has previously tried to appeal to the pastors by stressing his personal opposition to same-sex marriage, didn’t mention the issue at all in his 15-minute presentation, during which he made a powerful appeal to protect constitutional liberties. His libertarian supporters—who are distinct from many (not all) of the tea party people and often at odds with the religious right—didn’t like his unlibertarian marriage comments, and this could be a welcomed recalibration. (Paul also was one of 10 GOP senators who last week supported an LGBT-inclusive measure to protect homeless youth.)

Jeb Bush chose not to attend. That might not play well in the Iowa GOP caucuses, but could serve him best in a general election, should he win the nomination.

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Transgressors, Beware

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Hotel-owning NYC gay business partners Mati Weiderpass and Ian Reisner face an LGBT boycott for meeting with Ted Cruz, primarily to discuss American relations with Israel.

Reisner and Weiderpass said that they disagreed with Cruz on gay marriage and that his appearance at a get-together they hosted “was a step in the right direction toward him having a better understanding” of what they believed.

But the inquisitors smell blood, and they will not be put off.

David Weigel writes, “The irony is that the gay backlash to Cruz’s hosts might engender sympathy with gay marriage opponents,” which has certainly been true of other recent LGBT boycotts (which, unlike the action against Weiderpass and Reisner, at least targeted actual gay marriage opponents, albeit small vendors who rightfully come across as the victims of a bullying mob).

More. And not the mob alone, but authoritarians with state power. Destroying their businesses wasn’t enough, apparently.

I think many have felt cowed into not criticizing progressive LGBT affronts to tolerance and liberty for fear of sowing disunity in the fight for marriage (libertarians, for the most part, are the ones speaking out for both the right to marriage and the right to religious dissent).

I fear that if anything might deter Justice Kennedy from joining with the liberals to find a constitutional right to wed, it’s the unveiling of the authoritarianism driving LGBT progressives as they strive to enforce their vision of ideological and behavioral conformity.

If the court rules the right way in June, I hope more will feel emboldened to speak out in favor of tolerance and mutual respect, even if it means standing up to the mob and its political allies.

Furthermore. Cruz has also taken heat from the religious right over the meeting, showing that zealots on both left and right see any kind of dialog with “the enemy” as anathema.

Final word Reisner offers self-criticism and pledges to toe the correct party line. Note: despite some sloppy misreporting (and malicious misblogging), this meeting was not a fundraiser for Cruz. Should gay people not be allowed to meet conservatives and talk about issues that might unite or divide them? Well, I think we’ve learned the answer.

It’s not only about marriage, of course. You’d better uphold the whole progressive agenda, OR ELSE. From the Daily Beast:

“It’s not a coincidence that Cruz is anti-gay and also anti-social-safety net, anti-reproductive justice, and anti-affirmative action. What extremely fortunate white gay men like Reisner and Weiderpass don’t understand is that it’s all one big package: the classism, the religious conservatism, the social conservatism—these all go together.”

And after the freedom to marriage is secured (hopefully soon), expect that the ongoing morphing of the LGBT rights movement into a full-blown brigade of the progressive left to accelerate.

Real final word. James Kirchick writes, Ted Cruz’s Gay Hosts Shouldn’t Apologize:

So what if two rich gay hoteliers invited Ted Cruz to chat with them at their home? That’s the kind of bridge building we need more of, not less.

And this:

If Obama can meet with the likes of Raul Castro, who heads a regime that threw gay men into concentration camps where they were worked to death, why can’t a couple of gay businessmen have dinner with a politician who opposes same-sex marriage?

Indeed.

Final update, for real Apology revoked.

Added: Subsequently, Reisner revealed:

“In the interest of transparency, I gave Senator Cruz a $2,700 cheque to show my support for his work on behalf of Israel,” Reisner said in a statement [to the New York Times]. “When I realized his donation could be misconstrued as supporting his anti-gay marriage agenda, I asked for the money back. Senator Cruz’s office gave the money back, and I have no intention of giving any money to any politicians who aren’t in support of LGBT issues.”

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Post-Marriage Forecast

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The New York Times looks at the likely aftermath of a June Supreme Court ruling that there is a constitutional right to same-sex marriage:

Still, once the Supreme Court speaks, in a decision widely expected to make same-sex marriage a national right, the opponents’ anger and energies are likely to focus on a more limited issue, what they call protections for conservative religious officials or vendors who want to avoid involvement in same-sex weddings.

Gerald N. Rosenberg, a political scientist and legal scholar at the University of Chicago, said his former predictions of a wider, lasting backlash to marriage rulings had been overtaken by the “sea change in public opinion.”

Such “opt out” proposals may produce political heat, as recently seen in Indiana and Arkansas, where the governors, under pressure from businesses, felt compelled to weaken so-called religious freedom bills. But they will not impede the ability of gay couples to marry, Mr. Rosenberg said.

And this:

Yet whatever resistance strategies are adopted, many legal and political experts who have studied the impact of divisive Supreme Court rulings in the past, and the trajectory of the same-sex marriage movement, say they do not expect a lasting, powerful backlash of the kind that followed decisions on school desegregation and abortion.

Instead, the experience in states where same-sex marriage has already been legalized suggests that public opposition is likely to wither over time.

“As more couples marry, more people will know people who are married,” said Michael J. Klarman, a legal historian at the Harvard Law School and author of a 2012 book on earlier same-sex marriage rulings. “And those who oppose it will find out that the sky doesn’t fall.”

Assuming that the Supreme Court rules the right way, I think that’s correct. Same-sex marriage is not abortion; it is not the taking of life. There will not be mass mobilizations to pass Ted Cruz’s constitutional amendment.

But the debate over whether independent vendors with religious views opposed to participating in same-sex weddings should be forced by the state to do so (at the behest of angry authoritarians) will continue, and it will be ugly. Think witch hunts.

Confusing the matter is a related but different issue: whether civil servants should be able to opt out, and here I think the answer has to be no. 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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Just a Matter of Time

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More evidence that conservative support for same-sex marriage is growing:

A 2014 Pew poll found that 61 percent of Republicans under 30 support gay marriage.

According to Data Science polling, 64 percent of self-identifying Evangelical Millennials support same-sex marriage.

And the most recent survey of incoming freshman at UCLA found that 44.3 percent of students who considered themselves “far right” believed same-sex couples should have the right to legally marry, while 56.6 percent of “conservatives” believed the same.

Which may be why anti-gay-marriage activist Maggie Gallagher, in her latest missive, sounds like an alienated and bitter self-outcast.

More. She’s not alone among social conservative activists, of course. The Heritage Foundation seems to be getting even more anti-gay. Their latest: My Father Was Gay. Why I Oppose Legalizing Same-Sex Marriage.. This sentence, in quotation marks, apparently can be found nowhere on the Internet except in articles by this author:

Statements like this are lies: “Permitting same-sex couples (now also throuples) access to the designation of marriage will not deprive anyone of any rights.”

Heritage, it seems, is on a roll. Now they’re claiming that same-sex marriage will cause 900,000 abortions. Desperation tactics.

Furthermore. Wisconsin Gov. Scott Walker, a likely GOP presidential contender, may not support same-sex marriage, but he attended the reception when his wife’s cousin was married to her partner. The Walker’ then-19-year-old son, Alex, served as a witness and signed his name to the marriage certificate. Generational change.

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Many Lean Libertarian, But Parties Remain Polarized

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Pollster Nate Silver finds that 22% of Americans favor gay marriage and oppose income redistribution, indicating libertarian views. He explains:

Why should views on (for example) gay marriage, taxation, and U.S. policy toward Iran have much of anything to do with one another? The answer is that it suits the Democratic Party and Republican Party’s mutual best interest to articulate clear and opposing positions on these issues and to present their platforms as being intellectually coherent. The two-party system can come under threat (as it potentially now is in the United Kingdom) when views on important issues cut across party lines.

And he adds, “the rigidly partisan views of political elites should not be mistaken for the relatively malleable and diverse ones that American voters hold.”

These voters, aside from the small, diehard Libertarian Party folks, generally fall into the independent camp. They swing to the Democrats when the Republicans seem too socially conservative, and to the Republicans when the Democrats seem to be pushing too much big government spending and intrusiveness. Nevertheless, the left/right partisan polarization seems to be getting worse.

David Boaz, author of The Libertarian Mind, shares more thoughts on Silver’s findings .

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Conversion Therapy Bans: Some Considerations

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Update. Breaking Ranks: From The Right Therapy for LGBT Youth:

[Legislative] Bans could have the unintended consequence of deterring therapists from engaging with children who have questions or even of ensnaring good therapists when they do. … Psychotherapy is inherently private and complex, and for some individuals, sexual orientation and gender identity can and do evolve in the course of legitimate treatment.

That’s not the opinion of right-wing homophobes. It’s from a May 2, 2015 Washington Post op-ed by Stewart Adelson, an assistant clinical professor at Columbia University medical school and principal author of the American Academy of Child and Adolescent Psychiatry’s practice guidelines on LGBT youth, and Kyle Knight, a researcher in the LGBT rights program at Human Rights Watch.

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The White House, in response to an online petition that cites LGBTQ+ youth suicide in calling for a federal ban on all conversion therapy, responded with a statement saying, “While a national ban would require congressional action, we are hopeful that the clarity of the evidence combined with the actions taken by these states will lead to broader action that this Administration would support.”

Over at reason.com, Scott Shackford risks opprobrium, writing:

It’s absurd to say that the transgender experience is all in somebody’s head or that it’s not real, or cling to the idea that it’s a mental illness out of hand. I have known transgender people both before and after their transitions and have seen them leading much happier lives.

But it’s also equally absurd to never push or poke at any individual’s claim to a transgender identity. A gender transition is a huge, huge deal, and therapists need to be able to make sure their clients hammer out their concepts of who they are before they make some very major decisions. A small number of those who pursue surgery to change their sex regret it. …

We should be more concerned that therapists would become afraid to challenge how their patients see themselves out of fear of running afoul of a government regulation telling them how to go about treatment.

The position of LGBT youth is different from that of adults, and there is a necessary role for the state in protecting youth against abusive parents (although this role, too, is often handled badly by government). As regards protecting LGBorT youth, there are some issues to be addressed. The petition states, for instance, “Therapists that engage in the attempt to brainwash or reverse any child’s gender identity or sexual orientation are seriously unethical and legislation is needed to end such practices that are resulting in LGBTQ+ deaths.”

As Shakeford suggests, the matter isn’t always so simple, particularly concerning the need to be certain of a young person’s transgender identity before life-altering changes are made. There is some convincing evidence, for instance, of prepubescent males regarded as “effeminate,” and who then self-identify as transgender, being put on hormonal therapy to stifle male sexual development by obliging parents. There is also evidence that post puberty and into adulthood, many “effeminate”-regarded (and self-regarding) boys, including some of those who had identified as transgender, maturing into gay men who are not, it turns out, transgendered and are most happy to have their male sexuality intact.

From a conservative magazine (the Weekly Standard); and no, I don’t endorse everything here, but I do find this point worth considering:

Critics of puberty blockers, now administered in at least 37 locations in the United States according to Spack, point to the expense, the numerous side-effects associated with Lupron and its pharmaceutical relatives, and the possibility that parents and physicians might be pushing children who would otherwise grow out of their transgender identities into a lifetime of painful and costly surgery, dependence on daily doses of estrogen and other hormones, and the difficulty of finding a place for themselves in a world in which their femininity will always be questioned. On top of that, taking large doses of the hormones of the opposite biological sex almost invariably renders the taker sterile.

One of the leading critics has been Kenneth Zucker, a psychologist and former colleague of Blanchard who heads the gender-identity clinic at Toronto’s Clarke Institute. “One controversy is, how low does one go in starting blockers?” Zucker told the Globe in 2011. “Should you start at 11? At 10? What if someone starts their period at 9?” Zucker prefers a therapy regimen of trying to ease transgender girls into accepting that they will be happier in the long run by accepting their genetic maleness, since most of them will grow up to be gay men anyway.

[Transgender activist] Andrea James, as might be expected, has repeatedly attacked Zucker on her website as promoting “reparative therapy for gender-variant youth”—likening him to the often religiously motivated advocates of “curing” a gay sexual orientation.

Should Zucker’s therapeutic approach be illegal?

Some forms of conversion or reparative therapy are indeed destructive when inflicted on minors. But if conversion therapy should be illegal, when does religious counseling become therapy, and at what point should the state and its social welfare network step in and override parents? Is there a risk that these practices where be driven “underground,” where they might be even more destructive?

These concerns don’t mean that states shouldn’t be scrupulous about how they license potentially harmful and abusive therapeutic practices, or that the federal government shouldn’t weigh in. Or that there are no transgendered youth. It just suggests the issues involved aren’t always so clear cut and that it will be useful to see how these state bans play out, and if they are demonstrated to be protective of at-risk youth.

More. From the comments, “Jesse” writes:

I think here, as elsewhere, the idea that T and L&G are the same issues leads to a number of problems. A very strong argument can be made that sexual orientation is inherent and thus therapeutic approaches are destructive, unscientific and should be banned. But to say that someone who hasn’t gone through puberty can be certain that they are transgender and thus should have their puberty blocked just is not the same thing. …

With so much hostility toward gay youth, I’m not surprised some find it easier to say, I’m transgendered; fix me so I fit in. And if the transgender activists say that counseling to see if maybe they are not transgendered, just gay, should be barred, that’s a problem. Fear of offending transgender activists could actually be putting gay youth at risk.

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Liberty and Religious Accommodation

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James Kirchick asks whether religious-based opposition to same-sex marriage, or specifically, to providing services to a same-sex wedding, is always bigotry, as some blithely assert. He writes:

One reason [New York’s Marriage Equality Act] passed is that the act included a provision that prohibits state courts from penalizing religious institutions for refusing to recognize or sanctify gay marriages or providing services to same-sex weddings.

Should this protection be extended to closely held for-profit family businesses when New Yorkers use them to exercise their religious views? “Yes,” the U.S. Supreme Court seemed to say in the Hobby Lobby case, although that dealt with birth control.

The justices may someday be asked to extend Hobby Lobby to small businesses being pressed on same-sex weddings. In rejecting the idea that a ban on same-sex marriage can be only about prejudice, New York’s high court offered a template.

It led to gay marriage here while protecting religion.

But if you dismiss faith-based opposition to same-sex marriage as “bigotry,” than there is no room for accommodating the small number of service providers who, citing religious convictions, wish not to be forcibly coerced into facilitating same-sex weddings. In this situation, if you look at who is acting like the Grand Inquisitors, it’s not the service providers.

More. Hatefully humorous, and a sign (among many) of the backlash that seems to be brewing and which certain activists seem intent on courting (and no doubt would profit from, in several senses).

As many are coming to realize, with military service and marriage equality won (or nearly so), the fundraising machine needs new enemies. So rev up the culture war against religious dissenters.

Related:

Parody:

“Either you have three friends who are LGBTQ or you pay a penalty equal to the ObamaCare penalty, proportionate to your income. So, if you fail to have ObamaCare and fail to have enough LGBTQ friends, you could pay the ObamaCare.”

Not a parody:

Republican legislators banned from Fargo coffee shop “Unless accompanied by a lesbian, gay, bisexual or transsexual, queer, intersex or asexual person.”

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Libertarians and Religious Freedom

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Christian conservatives aren’t the only defenders of religious free-association laws, according to the Wall Street Journal’s William McGurn, in his column Indiana’s Libertarian Moment (it’s behind a firewall so google “Indiana’s Libertarian Moment” site:wsj.com). McGurn notes that:

Today the strongest arguments for protecting the right of, say, an evangelical Christian baker to decline baking a cake for a gay wedding are not coming from religious leaders or social conservatives. They are coming from libertarians, many if not most of whom themselves support same-sex marriage.

Take New York University’s Richard Epstein, who is arguably America’s leading libertarian law professor. Mr. Epstein supports gay marriage on the grounds that, because the government has a monopoly on marriage licenses, it shouldn’t use this monopoly to withhold these licenses from couples who are gay.

But Mr. Epstein doesn’t stop here. He further argues that the same freedom of association requires that the law not be used to coerce those who disagree with gay marriage.

In addition:

Mr. Epstein is not the only libertarian to speak out. … Matt Welch, editor of Reason magazine, puts it this way:

“The bad news, for those of us on the suddenly victorious side of the gay marriage debate, is that too many people are acting like sore winners, not merely content with the revolutionary step of removing state discrimination against same-sex couples in the legal recognition of marriage, but seeking to use state power to punish anyone who refuses to lend their business services to wedding ceremonies they find objectionable.”

McGurn concludes:

For…social conservatives, the question is more fundamental: Will they retain sufficient freedom to live their lives and run their institutions in accord with their faith?

The irony of Indiana suggests that it may be the libertarians who have the strongest arguments for defending them.

Many LGBT people have libertarian inclinations, but the activists who dominate LGBT political lobbies tend to identify as part of the broad progressive-left movement. And activist progressives dominate LGBT media and comment boards, where they can act as enforcers of ideological conformism.

More. On libertarians and the electorate, David Boaz takes on Paul Krugman.

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