IGF CultureWatch

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

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

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

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

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

From our comments, Craig123 writes:

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

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

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

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

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

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

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

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

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

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

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!

The Boy Scouts of America, according to its national president Robert Gates, the former defense secretary, seems to be recognizing that its longstanding ban on participation by openly gay adults is no longer feasible. “The status quo in our movement’s membership standards cannot be sustained,” Gates told the Scouts’ national annual meeting in Atlanta.

It’s a good thing for a bedrock national organization to stop discriminating. In this case, the courts have recognized that scouting is a private organization that is free to choose its voluntary troop leaders. But the scouts are responding to the changing times, and the increasingly common view that their policy is intolerant and mean spirited.

But if you read the comments to the AP story (why do we read the comments!), you realize how strong the antipathy/animus remains, and how unrelenting is the belief that gay men just want to be in scouting for the opportunity to sexually abuse boys.

Again here, as elsewhere, our opponents are making excellent use of the heavy handed and, yes, also mean-spirited attempts to force bakers, florists and photographers (and pizza shops) to provide services in celebration of same-sex weddings. If for no other reason than the sheer tactical stupidity of these lawsuits and mob mobilizations against small working-class vendors with traditional religious beliefs, they should not be supported.

Aaron Hicklin writes at Out:

All minorities are acutely sensitive to being belittled and disparaged, and rightly so, but in the febrile world of the Web, it’s easy to take umbrage at every passing slight. We begin to care too much about whether our pasta is too conservative, or if a pizza maker will cater a hypothetical wedding in a state that until just recently didn’t even have marriage equality. We act like petty tyrants exploding in anger whenever someone says something that falls foul of approved policy.

Increasingly, of course, the targets of that anger are other LGBT people, because that is the way tyranny works…

The dismissive snark in the comments to Hicklin’s article on the Out site prove his point.

More. Of course there is and has forever been zealotry on the right, and the anti-gay right (and left) has had state power to use against LGBT people from time immemorial. Now, that’s shifting. The use of the term “zealatry” as applied to those who view themselves as progressives is intentional—why do you want to be like them? And targeting the small working-class vendor with religious-based qualms about gay marriage, with all the rage built up against the forces of intolerance and persecution, is sheer scapegoating. And its ugly. And those who spur on the mob and participate themselves should be ashamed. You are not the force of progressive light; you, too, have a shadow-side. Confront it.

Furthermore. The case of The Tolerant Jeweler Who Harbored an Impure Opinion of Same-Sex Marriage. Also noted by Rod Dreher here:

This Christian jeweler agreed to custom-make engagement rings for a lesbian couple, knowing that they were a couple, and treated them politely. But when they found out what he really believed about same-sex marriage, even though the man gave them polite service, and agreed to sell them what they asked for, the lesbian couple balked, and demanded their money back — and the mob threatened the business if they didn’t yield. Which, of course, he did.

And yes, Dreher is no supporter of gay rights. But our media advocates don’t report on this, do they? Wouldn’t make their readers feel all warm and superior and full of self-righteousness.

LGBT activists are saying that after (hopefully) the freedom to marry throughout the U.S. is recognized by the Supreme Court, other battles await. For many, the fight for strong anti-discrimination protections looms large; for some, it’s the perennial goal of even more closely embedding LGBT activism within the broader progressive agenda of redistribution and regulation.

But as the Washington Post reports, evangelical and Catholic religious groups, including charities and universities, fear that they will find themselves targeted in the battles ahead:

Leaders of religious institutions, including colleges, hospitals and nonprofits, are waiting to see how the case might affect issues like accreditation, government funding and tax exemption. Organizations have worked on issues related to poverty for the past 50 to 100 years, including Catholic Charities and World Vision, receive government aid for their services, aid that some fear could be challenged….

InterVarsity Christian Fellowship, an evangelical campus ministry, which has corralled hundreds of thousands of students to work on issues such as poverty, was denied recognition on several California campuses because of it did not sign a nondiscrimination statement.

“Setting aside the overblown rhetoric in all directions, there does seem to be a real difference for the framing of ‘religious liberty and the American culture wars’ when the battle lines move from issues like school prayer and vouchers—or even cake bakers and florists—to questions of whether religious student groups can be on public university campuses, whether religious colleges should be accredited, and whether local school systems should accept volunteer support from churches and ministries,” [John Inazu of Washington University School of Law] said.

The hope that we might achieve legal equality under the law, including the right to marry, but that no one should be forced by the state to provide services or otherwise participate in same-sex marriages, and that religious groups might be afforded reasonable tolerance to abide by their own traditions, is likely not going to happen. Zealots on both sides have too much invested in maintaining the culture wars.