IGF CultureWatch

Neil Gorsuch, Trump’s Supreme Court pick, probably would not have joined the ruling in favor of marriage equality, although he is a former clerk to Justice Anthony Kennedy, who authored the Obergefell decision.

In 2005, LGBTQ Nation reports, Gorsuch wrote an article for National Review in which he argued that liberals are using the courts too much to advance their agenda, and he cited same-sex marriage:

American liberals have become addicted to the courtroom, relying on judges and lawyers rather than elected leaders and the ballot box, as the primary means of effecting their social agenda on everything from gay marriage to assisted suicide to the use of vouchers for private-school education… .

…too much reliance on constitutional litigation is also bad for the Left itself. The Left’s alliance with trial lawyers and its dependence on constitutional litigation to achieve its social goals risks political atrophy. Liberals may win a victory on gay marriage when preaching to the choir before like-minded judges in Massachusetts. But in failing to reach out and persuade the public generally, they invite exactly the sort of backlash we saw in November when gay marriage was rejected in all eleven states where it was on the ballot.

Marriage equality was eventually achieve through the courts, and—unlike the abortion-ruling aftermath—without an escalation of the initial backlash the Gorsuch noted. But his arguments aren’t those of the fire-breathing LGBT-rights opponent of progressive fear-mongering.

Gorsuch does support religious liberty rights, which will drive the LGBT left berserk. He ruled against the government in a case involving the Obamacare mandate that employer health plans provide no-cost contraceptive coverage to female workers, including drugs some consider to be abortifacients. As LGBTQ Nation notes:

In Burwell v. Hobby Lobby, the corporation argued that its religious beliefs were being violated by the ACA. Gorsuch sided with Hobby Lobby, holding that a for-profit business could have religious beliefs, with which the Supreme Court later agreed.

I agreed, too.

Gorsuch is a conservative, but he’s not a social conservative activist. I don’t expect that liberal media will pay much attention to the distinction.

More. An email just received from Zeke Stokes at GLAAD:

Gorsuch’s record on the federal bench means his appointment to the court could put LGBTQ people at risk, from workplace protections to even marriage equality. Coming on the heels of rumors of a sweeping Trump executive order attacking the LGBTQ community, this appointment could spell danger for LGBTQ people, women, people of color, immigrants, and other marginalized communities — many of whom are already targets of Trump’s actions.

A follow-up from GLAAD explains:

We just got some devastating news. According to breaking media reports, a leaked copy of a draft executive order reveals plans by the Trump Administration to allow for widespread discrimination against LGBTQ people across the country– much like the law Vice President Mike Pence signed as governor of Indiana.

Attacking religious liberty rights will be the singular issue of the LGBT left (which is to say, the LGBT political movement) going forward.

White House says LGBT protections for federal workers will remain.

Score one for the Log Cabin Republicans. Guess the fear-mongers were wrong.

I fully support LGBT nondiscrimination policies within the federal workforce. But when extended to federal contractors, I’d favor a reasonable religious exemption so that, for instance, Catholic charities could choose not to participate in adoptions by same-sex couples.

But any change to Obama’s order by Trump would have been demagogued mercilessly as a “license to discriminate.”

The Human Rights Campaign never misses an opportunity to remain irrelevant. Via The Advocate, HRC’s head Chad Griffin tweeted: “Claiming ally status for not overturning the progress of your predecessor is a rather low bar.”

More. Walter Olson at the Cato Institute addresses this issue: An Executive Order On LGBT Issues? Religious Exemptions? Both? He clarifies that while the White House said the president would keep in place Obama’s LGBT order applying to the federal workforce:

The White House did not rule out revisiting other decisions by its predecessor administration on gay rights, such as an order requiring federal contractors to adopt nondiscrimination policies, which pointedly did not provide conscience exemptions for private religious agencies.

Let the outrage begin!

Olson continues:

The effect of a contractor ban without religious objector provisions, I argued, would be to kick various religious agencies out of social service work in public settings in adoptions and foster care, as well as some prison, drug rehab, and various other settings. Ousting conservative religious groups from participation in social service adoption is likely to cut down on the number of successful placements made of children in public care, which would hurt the taxpayer, hurt adoptive parents, and, not least, hurt kids. The more genuinely pluralist approach, I argued, would be to acknowledge conscience exemptions while fully opening these systems to participation by contractors that gladly serve gays, persons of no given sect, religious unbelievers, and so forth.

Sounds good to me.

Furthermore. To clarify, it’s specifically the 2014 executive order that applies to employees of federal contractors that the White House said would continue in place.

“President Donald J. Trump is determined to protect the rights of all Americans, including the LGBTQ community,” the [White House] statement says. “President Trump continues to be respectful and supportive of LGBTQ rights, just as he was throughout the election. The president is proud to have been the first ever GOP nominee to mention the LGBTQ community in his nomination acceptance speech, pledging then to protect the community from violence and oppression. The executive order signed in 2014, which protects employees from anti-LGBTQ workplace discrimination while working for federal contractors, will remain intact at the direction of President Donald J. Trump.”

The New York Times relates:

Leaving those protections, of course, does not preclude another executive order that would roll back gay rights in other areas. Mr. Trump could, for example, still enshrine a religious freedom provision in federal policy.

I hope so, as balancing competing rights—civil rights (public accommodations nondiscrimination) and religious liberty (the right not to be forced by the state, on threat of punishment, to take action that violates religious convictions)—is what America is about.

REVEALED: @IvankaTrump and @jaredkushner worked to sink anti-LGBT executive order https://t.co/lwwL1P2ADo pic.twitter.com/9BqMn7Y009

— LogCabinRepublicans (@LogCabinGOP) February 3, 2017

It’s Log Cabin’s time, with the much bigger and dominant LGBT movement organizations (Human Rights Campaign, Victory Fund) having ensured they’ll be frozen out by the Trump administration.

Via the Washington Blade, Log Cabin emerges as lead LGBT group in Trump era:

In another sign of how the political landscape has changed in Washington, the gay GOP group Log Cabin Republicans appears to have emerged as the lead LGBT organization expected to have access to the administration of President Donald Trump.

With most of the longstanding national LGBT advocacy groups, including the Human Rights Campaign, strongly supporting or tilting toward Democratic presidential candidate Hillary Clinton in the November election, many political observers expect them to have little if any access to the Trump White House and federal agencies that oversee LGBT-related issues.

HRC has joined with others on the left in declaring its implacable hostility toward the Trump administration, and did so before Trump had been sworn in. So it’s good to see Log Cabin going its own way.

I think this is smart, too:

In a break with nearly all other LGBT advocacy groups, Angelo said Log Cabin doesn’t support the Equality Act, the latest version of a federal LGBT non-discrimination bill pending in Congress. He said the group would soon push for a different version of an LGBT non-discrimination bill that would likely gain more support among GOP lawmakers in Congress.

The overly broad Equality Act is an assault on religious liberty rights, rolling back protections under the Religious Freedom Restoration Act that Democrats once supported.

[Added: The Equality Act revokes any protection which religious objectors might enjoy under the federal Religious Freedom Restoration Act. I wrote about this last November, here, noting that “staunch opposition to religious exemptions and requiring that the existing Religious Freedom Restoration Act (signed by Bill Clinton) be excluded from applying to any such [LGBT anti-discrimination] measure—as the Human Rights Campaign and others are demanding—is not a strategy that seeks to accomplish anything except to maintain the political standoff so useful in fundraising appeals. A win-win compromise—LGBT legal protections with reasonable and traditional exemptions for religious belief, especially among small, independent service providers—would be in the best interest of everyone except for activists whose power and prestige is based on perpetuating the culture wars.” Jonathan Rauch has also addressed this, as noted here.]

The great irony of all this is that Trump would, quite possible, be amenable to signing a common sense LGBT workplace anti-discrimination bill, but HRC and the LGBT left will work tirelessly to ensure that such an outcome never happens.

More. Wall Street Journal columnist Daniel Henninger writes:

For scorched-earth Never Trumpers…the response to this complex challenge is simple: Resist everything. For everyone else, from Doubtful Trumpers to Hopeful Trumpers, more productive ways of engaging with this presidency are opening up.

The media’s mostly Manichaean political model—bad forces arrayed against forces for good—is largely useless. The more productive if difficult path forward will require willing participants to pull out pieces of the Trump agenda and support them, refine them or, when necessary, resist. Full engagement with the Trump presidency doesn’t mean simple assent or rote opposition. …

For those who want to spend four years quaking before Mr. Trump’s kaleidoscopic tweets, the future is predictable. For everyone else, the more familiar struggles of American governance have just begun.

Log Cabin seems to get this; the LGBT Democrats, not so much. From the Washington Blade article:

The HRC message said the group had created a new “defy” logo and encouraged supporters to “resist” action by Trump that would harm LGBT people or roll back LGBT supportive policies put in place by President Barack Obama.. …

The Gay and Lesbian Victory Fund…[which] also lobbies for presidential appointments of LGBT people, issued a strongly worded statement on the day following the election leaving no doubt about its opposition to Trump. “Today I am heartbroken that racist, xenophobic, sexist and transphobic demagoguery won last night’s presidential election,” said Aisha Moodie-Mills, the Victory Fund’s president and CEO.

Sure, those are voices that are going to be welcome in administration deliberations.

Furthermore. No one expects the Republican leadership to favor an LGBT anti-discrimination bill. But if the Democrats introduced a common-sense measure with religious exemptions and got behind it, enough Republicans are likely to join them to get to a majority, and I believe Trump might very well sign it. But that’s the last thing the Democrats, and their LGBT auxiliaries, would want to happen.

Final thought. According to their 2015 form 990 filings for tax year 2014 (the last ones you can view for free through online search), total annual revenue was:
LCR: $      289,950.
HRC: $37,406,706.

As the new year began, LGBT groups denounced a decision by a federal judge in Texas that blocked, nationwide, federal regulations issued under the Affordable Care Act that barred discrimination against transgendered patients.

As the Washington Times reported, “U.S. District Judge Reed O’Connor is the same judge who, four months earlier, blocked President Obama’s order compelling public schools nationwide to permit bathroom and locker room access on the basis of gender identity.”

The lawsuit against the transgender anti-discrimination rule was brought by the Becket Fund for Religious Liberty, representing the Franciscan Alliance.

“Judge O’Connor’s decision to prevent the Department of Health and Human Services from implementing crucial protections for transgender people seeking healthcare services puts thousands of people at risk of marginalization, harassment, and discrimination at a time they are most vulnerable and in need of inclusive, respectful care,” Sarah Warbelow, legal director for the Human Rights Campaign, said in a statement.

Writing in the blog Health Affairs, Timothy Jost, a professor at the Washington and Lee University School of Law in Lexington, Va., said, “Nothing in the [Affordable Care Act’s] section 1557 rule specifically requires practitioners or health care facilities to provide gender transition services. … The rule does not impose on health care professionals an obligation to provide gender transition services…. It is troubling that this litigation has been promoted based on false statements about the requirements of section 1557, which Judge O’Connor has to a certain extent uncritically accepted.”

But just a few days later, the Washington Post reported that Jionni Conforti, a 33-year-old transgender man, is suing a Catholic hospital for not accommodating his transition-related hysterectomy. The suit referenced both the (now blocked) Affordable Care Act rule and New Jersey’s anti-discrimination statute.

Lambda Legal, which is representing Conforti, said the hospital was not entitled to “decide who their patients are.”

But suing a Catholic hospital for not accommodating a gender-realignment surgery raises many issues about the failure to recognize the difference between a private/religious and public/government facility. If a Catholic hospital has no right not to host a gender transition-related surgery, can a patient demand it also allow elective abortions to be performed?

The GOP-dominated state legislature in North Carolina failed to repeal the “bathroom bill”—HB2—which requires use of public restrooms and locker rooms based on biological sex rather than gender identity, even though the Charlotte City Council, reportedly as part of a deal, voted to repeal part of its anti-discrimination ordinance prohibiting discrimination in the use of restroom/locker room facilities on the basis of gender identity.

Passage of the Charlotte ordinance triggered state Republicans to pass HB2, leading to a national outcry by LGBT advocates and their corporate allies, who announced various boycotts.

Many GOP legislators were pushed hard by religious right activists to maintain HB2 without revision. On the other hand, some supported a compromise that would have repealed the state law but also put in place what the Washington Post described as “a six-month moratorium on cities passing nondiscrimination ordinances to protect gay and transgender people.” The Washington Times described it as “an amendment that would have prohibited local municipalities from permitting opposite-sex restroom access until a long-term, statewide compromise could be reached—an add-on that helped kill the repeal bill.”

Democratic legislators, following pressure from activists, rejected that compromise, even though their votes, with enough willing Republicans, would have been able to put across a repeal measure containing the amendment.

“It’s clear today that the GOP leadership’s cruelty towards lesbian, gay, bisexual and particularly transgender North Carolinians knows no bounds,” an overheated Chad Griffin, president of the Human Rights Campaign, said in a statement. “For our part, we will continue to fight to defeat all of HB2 and protect North Carolinians no matter what it takes.” In other words, no compromise.

There was distrust all round:

North Carolina Senate Leader Phil Berger, a Republican, said the unwillingness to accept the amendment on the part of Senate Democrats is evidence that Charlotte would have reneged on the compromise and reintroduced its ordinance after the repeal.

A six-month cooling off period doesn’t seem so unreasonable. But as I’ve said before (because it’s true), a great many LGBT-rights activists and social conservative activists have an interest in not settling culture war issues, thereby maintaining the enraged polarization that is so good for partisan political mobilization and fundraising.

Posted at the Christianity Today site is Fairness for All: Evangelicals Explore Truce on LGBT and Religious Rights. It reports on efforts by some in the evangelical community (which includes those whose politics lean liberal) to support federal legislation modeled on a Utah compromise bill that the state enacted last year. Going national, the aim is to “bring together religious liberty defenders and LGBT activists to lay out federal legislation to secure rights for both.”

There’s bad news, however:

…several prominent religious liberty advocates—including the Alliance Defending Freedom and the Ethics and Religious Liberty Commission (ERLC) of the Southern Baptist Convention—that opposed the Utah compromise model aren’t on board with Fairness for All either. … [and] much of the momentum around LGBT advocacy also resists such compromise.

But there’s good news, too:

Even without a specific proposal to parse, evangelical leaders are doubling down on the need for deeper discussion, as well as outreach to government partners and LGBT groups.

It’s a nice thought but a tough sell. As I’ve said before, the idea of letting President Trump sign a federal LGBT rights bill, especially one with (gasp) religious exemptions, would be anathema to the Human Rights Campaign and other Democratic party auxiliaries.

And so the (culture) war wages on. And a decision in Illinois is just more grist for the mill: Christian-owned bed and breakfast must host gay weddings, state panel finds.

Proposed legislation that would exempt religious nonprofit organizations from an Obama executive order requiring government contractors to follow LGBT nondiscrimination policies is on hold, but the ACLU and its allies are gearing up for battle on behalf of forcing Catholic charities to facilitate adoptions by same-sex couples because, you know, Jim Crow.

As the Wall Street Journal reports:

“What you’ve seen since the election is people see this as a line-in-the-sand moment,” said Ian Thompson, a spokesman for the American Civil Liberties Union. “This is an opportunity to really say, ‘No, we’re not going to allow our taxpayer dollars to be used to fund discrimination and target vulnerable communities across the country.’ ”

Supporters say the exemptions are needed to protect religious groups who help the government through their work with veterans, refugees, the homeless and others. In some cases, religious groups may be the only ones offering those services, they say.

A more-constructive progressive/LGBT movement would see the value of allowing exemptions for religious nonprofits in that the advocates would still get 95% of what they want—the government on record outlawing sexual orientation and gender identity discrimination by contractors—while showing some flexibility for services provided by faith-based groups. But no dice.

It’s possible soon-to-be-president Trump will rescind the order and/or replace it with a version that includes an exemption for religious groups. If he does so, or if he doesn’t and Congress moves ahead with its measure, progressive activists will fight it tooth and nail, because all or nothing serves their mobilization/fundraising agenda.

That’s also why activists will never allow any LGBT anti-discrimination bill to move forward if it includes exemptions for faith-based groups, even though Trump might be willing to sign such a measure. But having Trump sign an LGBT anti-discrimination law would be progressives’ worst nightmare, and they will do whatever it takes to prevent that from happening.