IGF CultureWatch

Via the Washington Post, 2016 could be a very difficult year for LGBT activists:

Less than eight months after the Supreme Court legalized same-sex marriage nationwide, LGBT advocates are on the defensive, playing whack-a-mole with a massive number of bills in state legislatures they say are meant to peel back LGBT rights…. Religious exemption and bathroom bills are leading many of those legislatures’ agendas….

Among the litany of horrors listed in this article, which draws on the Washington-based Human Rights Campaign as its primary source: state-level proposed legislation allowing clergyman not to perform same-sex weddings (a right they already have), allowing religious exemptions for small businesses that don’t want to provide services to same-sex weddings, and allowing schools and businesses to maintain shared same-sex restrooms (often with private facilities for those who identify as, but have not transitioned to, the opposite sex).

If these efforts are the nightmare scenario being used by the Human Rights Campaign to drum up support and fundraising, then things look pretty good for LGBT people.

Now, it’s not that some of these proposals aren’t offensive political posturing (while others, I’d argue, simply reaffirm constitutional liberties). But the one area that could truly be rights-denying would be state attempts to allow government officials to refuse to provide marriage licences to same-sex couples. However, that’s not being seriously considered; what we see instead are a few state proposals to allow individual officials to excuse themselves from issuing licences as long as the office itself makes licences available to all couples.

As I’ve noted before, government officials are responsible for following the law of the land, even when doing so is at odds with their own religious beliefs. They are public servants, not private, self-employed service providers. So codifying these opt-outs can be constitutionally dubious, although one might think informal arrangements or reassignments within county and state offices handling these issues might suffice.

More. Not mentioned in the article, which appeared prior to Justice Scalia’s passing, are some GOP presidential contenders (most emphatically Ted Cruz and Marco Rubio) pledges to appoint justices who would roll back the Supreme Court’s historic ruling in favor of marriage equality nationally. In that event, each state would be able to approve or deny the rights of same-sex couples to wed. Legal experts and Court-watchers think overturning Obergefell is highly unlikely—opponents of unrestricted legal abortion nationally have been trying to overturn Roe v. Wade for decades. But it shouldn’t be dismissed as impossible and is a legitimate reason for those supporting equality under the law to oppose such candidates.

Yet even here, “let the states decide” is a noticeable advancement over advocating to amend the Constitution to ban same-sex marriage across the nation.

Via Ilya Shapiro at the libertarian Cato Institute, Let a Thousand Flowers Bloom:

While Cato believes that same-sex couples ought to be able to get marriage licenses (if the state is involved in marriage in the first place), a commitment to equality under the law can’t justify the restriction of private parties’ constitutionally protected rights like freedom of speech or association.

Arlene’s Flowers, a flower shop in Richland, Washington, declined to provide the floral arrangements for the same-sex wedding of Robert Ingersoll and Curt Freed. Mr. Ingersoll was a long-time customer of Arlene’s Flowers and the shop’s owner Barronelle Stutzman considered him a friend. But when he asked her to use her artistic abilities to beautify his ceremony, Mrs. Stutzman felt that her Christian convictions compelled her to decline. She gently explained why she could not do what he asked, and Mr. Ingersoll seemed to understand.

Later, however, he and his now-husband, and ultimately the state of Washington, sued Mrs. Stutzman for violating the state’s laws prohibiting discrimination in public accommodations. The trial court ruled against Arlene’s Flowers and the case is now on appeal.

Cato has filed an amicus brief supporting Arlene’s Flowers and Mrs. Stutzman, urging Washington’s highest court to reverse the trial court’s decision. Although floristry may not initially appear to be speech to some, it’s a form of artistic expression that’s constitutionally protected. ….

[Supreme Court] justices have said repeatedly that what the First Amendment protects is a “freedom of the individual mind,” which the government violates whenever it tells a person what she must or must not say. Forcing a florist to create a unique piece of art violates that freedom of mind. Moreover, unlike true cases of public accommodation, there are abundant opportunities to choose other florists in the same area.

It remains stunning that progressive LGBT activists have decided using the power of the state to force religiously conservative small business owners to provide expressive services to same-sex weddings is where the front line of the LGBT movement should be. They’re mean-spirited, intolerant and smug authoritarians, and proud to be so.

Via Towelroad:

Leading UK gay activist Peter Tatchell has come out in support of a Belfast baker who was found guilty of discrimination for refusing to bake a cake with the slogan “Support Gay Marriage”.

Spot on. A commitment to liberty means liberty for all, no matter how furious it makes progressive authoritarians.

The International Olympic Committee has received new recommendations for guidelines it’s expected to adopt, opening the door for more trans athletes to compete internationally, reports outsports.com. The recommendations address allowing competition by transgender athletes who have had gender reassignment surgery, as well as those who have not yet had surgery, or have chosen not to do so although their gender identity is at odds with their genitalia.

This may not pose much of an issue for competitions in which transmen compete against cisgender men, but it is likely to raise issues for transwomen whose bodies have been developmentally male. Nevertheless, the recommendations state:

To require surgical anatomical changes as a pre-condition to participation is not necessary to preserve fair competition and may be inconsistent with developing legislation and notions of human rights. …

Those who transition from male to female are eligible to compete in the female category under the following conditions:

• The athlete has declared that her gender identity is female. The declaration cannot be changed, for sporting purposes, for a minimum of four years.

• The athlete must demonstrate that her total testosterone level in serum has been below 10 nmol/L for at least 12 months prior to her first competition (with the requirement for any longer period to be based on a confidential case-by-case evaluation, considering whether or not 12 months is a sufficient length of time to minimize any advantage in women’s competition).

• The athlete’s total testosterone level in serum must remain below 10 nmol/L throughout the period of desired eligibility to compete in the female category.

Regardless of testosterone levels, the first time a pre-op transwoman takes a medal competing against cisgender women—think about a younger Caitlyn Jenner in a women’s track and field event—it’s going to get ugly.

Wall Street Journal political columnist Gerald Seib takes note of the growing ideological divide between Democrats and Republicans, citing a WSJ/NBC News poll conducted Dec. 6-9. Tellingly, among the findings:

• Asked if they were a supporter of the traditional definition of marriage as being between one man and one women, 69% of Republicans said yes versus 25% of Democrats.
• Asked if they were a supporter of the gay-rights movement, 63% of Democrats said yes versus 14% of Republicans.

One conclusion might be that gay people and their friends should only support Democrats, a view held by many leading national and regional LGBT advocacy groups. A more strategic take-away would be that winning over Republicans should be the key aim of those self-same groups.

In post-marriage-equality America, it seemed at first as if culture war divisions might give way to a new consensus, with conservatives seeing married gay people as a positive—akin to what’s happened in the U.K., where Prime Minister David Cameron has said, “Conservatives believe in the ties that bind us. Society is stronger when we make vows to each other and we support each other. I don’t support gay marriage in spite of being a conservative. I support gay marriage because I am a conservative.”

But in the U.S., polarization on gay issues is hardly abating, as the WSJ poll shows. And here, a major factor, I believe, has been the well-publicized efforts by LGBT social justice warriors to prosecute small business owners with conservative religious beliefs (including wedding planners, photographers, florists and bakers/caterers) under anti-discrimination laws, using the power of the state to put them out of business if they refuse to provide their services to same-sex marriages.

Conservatives place a high value on religious liberty, which today’s secular progressives frequently dismiss as if it were of no consequence. So a cynic might suggest that perpetuating polarization through such prosecutions—instead of tolerating a minor amount of religious dissent—while not in the best interest of ensuring wider acceptance of LGBT equality, could be in the best interest of professional advocates whose continued existence and full coffers are predicated on keeping the culture wars burning.

Social conservative politicos and activists are fanning the flames, but it’s intolerant progressives who keep striking the match.

Via the conservative-leaning PJ Media news site:

Mat Staver, the founder and chairman of Liberty Counsel, said Kentucky Gov. Matt Bevin gave Kim Davis and all the other county clerks in the state a “wonderful Christmas gift” by protecting their religious rights and freedom.

Bevin issued an executive order two weeks after taking office that removes the names of all county clerks from marriage licenses issued in Kentucky. Staver said that will enable Davis and all other county clerks to do their jobs — issue marriage licenses to everyone, including same-sex couples — without compromising their religious principles.

Over at Instapundit (also part of PJ Media), the comments ranged from:

“Do we have a secular or sectarian society. While I respect Ms. Davis beliefs, rewriting law just for her was not the right [thing] to do.”

To:

“It wasn’t just for her, it was for everyone like her, and a very reasonable way to accommodate the rights of all parties.”

Another commenter said, “Removing the clerk’s name from the license is a very hollow victory,” and I tend to agree with the observation, although the commenter may have been lamenting that marriage licenses are being issued to same-sex couples at all.

Government officials are responsible for following the law of the land, even when doing so is at odds with their own religious beliefs. They are public servants, not private, self-employed service providers.

But it’s for the good if a small, symbolic action can defuse a contentious “culture war” face off and serve civility without diminishing individual rights, and I tend to see that happening here.

More. Scott Shackford, at reason.com’s Hit & Run blog, notes there have been other recent compromises:

The conflict with Davis was the most visible representation of resistance, but it’s not the only one. … In North Carolina, lawmakers passed legislation allowing county employees to opt out of duties performing marriages or issuing licenses if they have religious objections. But the county is also obligated to make sure magistrates or clerks are available to pick up the slack and that the county keeps regular hours.

In Alabama, state law gives county probate judges complete discretion as to whether to issue [any] marriage licenses at all. In response to the Obergefell decision, some judges have opted out entirely.

These responses, too, seem like reasonable ways to move beyond culture war confrontations without denying gay couples the right to wed.

I watched some of the live stream from Unfinished Business: The Atlantic LGBT Summit held in Washington, D.C. on Dec. 11. A friend commented, “the identity politics—trans, bi, LGBT youth of color, why isn’t disability being discussed?—was too much for me.”

For me, as well.

Elizabeth Nolan Brown’s reporting at reason.com strikes the right notes about what she terms “an event filled with both thought-provoking speakers and brain-numbing PC platitudes.” For instance, on the panel discussion on legal barriers to transgender equality, she sums up:

Welcome to the minefield that is discussing LGBTIQ* issues circa 2015. By the time panelists had sorted out who was micro- or macro-agressing against whom, there was little time left for the planned topic of the panel, trans civil rights. (Unless the right to be on an Atlantic panel is at the forefront of the trans agenda.)

* Lesbian, gay, bisexual, transgender, intersex, and questioning

On the issue of whether the LGBT movement should allow tolerance for religious dissent, Brown writes:

Those who stuck out most during the day’s sessions were figures like David Boaz, executive vice president of the Cato Institute, and writer and pundit Andrew Sullivan. Boaz and Sullivan are both gay and have long histories of gay-rights activism. But their belief in religious freedom set them apart from most of the crowd and speakers gathered yesterday. One of the biggest cheers of the day, in fact, came after an audience member accused Boaz of being “on the wrong side of history.”

As I’ve said and others have noted, progressive activists believe that nondiscrimination supersedes all other constitutional liberties (here’s an example in a different context, regarding Title IX and freedom of speech). The summit showed the strident opposition to the suggestion that there is a liberty right not to be forced to provide services to same-sex weddings when doing so violates religious belief, or even a positive value is showing tolerance for religious dissent by a small number of service providers.

Brown notes that “the historic alliance between libertarians and the LGBT community when it comes to political activism” is pretty much over, as “the area of common ground seems to be shrinking.” Hard to argue with that.

More. A positive development on the LGBT front! As the New York Times reports:

In a surprise announcement, the Empire State Pride Agenda, a leading state group that advocates gay, lesbian, bisexual and transgender issues in New York, will disband next year, citing the fulfillment of a 25-year campaign for equality.

Having secured marriage equality in New York before the Supreme Court’s Obergefell ruling, and with broad nondiscrimination measures in place that include transgender men and women, it was mission accomplished. But, as the Times also notes:

State Senator Brad Hoylman, a Manhattan Democrat, seemed shocked by the news. “There’s a lot more work to be done on L.G.B.T. rights in New York, so declaring ‘Mission Accomplished’ seems premature,” he said, noting that his legislative chamber had not passed a “single piece of L.G.B.T. legislation” since 2011. “I hope a new political group picks up the mantle,” he added.

The gay equality agenda may be met, but hey, there’s lots of progressive policies to coral LGBT support behind, not to mention embedding LGBT lobbies into the identity politics spoils system!

Houston Mayor Annise Parker commented recently on the defeat of the Houston Equal Rights Ordinance. As reported by the Washington Blade:

After the defeat of the ordinance, Human Rights Campaign President Chad Griffin told the Blade LGBT advocates should call on TV stations not to run anti-trans ads like the kind seen in Houston, an idea Parker said she endorses. “I think there should be a certain level of social responsibility because while they were horrific ads, they were clearly fear-mongering and deliberate lies,” Parker said.

Anyone is free to organize protests and otherwise make their views known to the media. The problem is that almost all political ads are seen as “unfair”—by the other side. And often, that’s exactly what they are—remember those Democratic ads showing Republicans rolling grandma in her wheelchair over the cliff by supporting Medicare reform.

The Houston ads against the ordinance, raising the spectre of threatening “men” (instead of transgender women) using women’s restrooms, are only more so.

But if the best response advocates of anti-discrimination measures can propose is to pressure TV stations not to run opposition ads, that’s a rather stark admission that they can’t mount an effective counter-argument and organize effectively to get their message out. And that raises comparisons to the recent wave of campus protests that seek to forbid speech that progressives view as advocating incorrect views. It’s all of a piece of the new illiberal intolerance.

More. Mark Lee writes in the Washington Blade:

That whooshing sound you may have heard when reading Washington Blade reporter Chris Johnson’s interview last month with Chad Griffin was likely the air being sucked out of the room due to gasps by First Amendment adherents. The Human Rights Campaign president offered a shockingly stark strategy for avoiding future ballot defeats on nondiscrimination measures such as the recent loss in Houston.

“In politics, there’s often two sides to a debate,” Griffin acknowledged, before dissecting the degree of debate he would tolerate. “There’s also right and wrong, and there’s lies, and there’s defamation of an entire population of people. And that’s what happened in Houston. And so, I am hopeful that in the go-forward we as a community, as an organization, local campaigns can be more aggressive with station managers, quite frankly.” Griffin’s “solution” to losing seems to be roughing-up news stations running opposition ads or reporting on opponent positions, rather than winning hearts and minds. Sort of similar to something Donald Trump might say.

We are collectively losing sight of the fact that the defense of liberty and free speech only matters when protecting the right to expression of unpopular opinion.