IGF CultureWatch

This post was subsequently updated through April, 5, 2015

The Indiana Religious Freedom Restoration Act was originally slightly broader than the federal RFRA, which some circuits have limited to apply only to federal laws (Josh Blackman provided a legal analysis here; CNN also had a balanced overview).

Indiana’s measure would, apparently, have allowed bakers and photographers to assert in their defense, if they found themselves in court being sued, a right to religious conscience—although it was by no means an automatic “get out of baking a cake” card. Blackman concluded:

I should stress–and this point was totally lost in the Indiana debate–that RFRA does not provide immunity. It only allows a defendant to raise a defense, which a finder of fact must consider, like any other defense that can be raised under Title VII or the ADA. RFRA is *not* a blank check to discriminate.

According to CNN Legal Analyst Jeffrey Toobin, it’s likely that a refusal to serve a gay person wouldn’t have stood under the law, but a refusal to provide a service for a gay wedding could have.

In fact, Indiana was the 20th state to adopt a “religious freedom restoration” law, and they have not opened the floodgates to anti-LGBT discrimination.

Indiana doesn’t have a statewide LGBT nondiscrimination law, although some of its cities and counties do. So it was not the grand compromise we saw in Utah. It’s passage was, arguably, an overreaction to an overreaction (the idea that it advances the progressive cause to find small business providers with religious-based objections and force them to provide expressive services to same-sex weddings or face prosecution because now it’s our turn and serves ’em right). But hey, never let an opportunity for lucrative political hysteria go untapped.

More. Yes, you can be a supporter for LGBT rights, same-sex marriage, and religious freedom. What you can’t be is an authoritarian statist and a defender of liberty.

No over-reaction by progressives and LGBT activists? Via the Washington Post: 19 states that have ‘religious freedom’ laws like Indiana’s that no one is boycotting.

Furthermore. Via Instapundit Glenn Reynolds:

Here’s the deal: (1) Indiana has gone from a swing state to a red state, so it’s fair game; and (2) Dems need something to agitate the base so it doesn’t pay attention to Iranian nukes, trashed email servers, and an overall culture of corruption. Those who join in are willing enablers.

Sounds about right. I’d add that with the fight for the freedom to marry just about won (assuming the Supreme Court does the right thing), activists are in dire need of new targets for their fundraising machines, and turning the tables on religious traditionalists is just the ticket.

Cato Institute Senior Fellow Michael Tanner blogs:

So, as a strong supporter of marriage equality and someone opposed to bigotry in all its forms, but also as a supporter of property rights and the freedom to associate (or not associate), how do I feel about Indiana’s new religious freedom law? The truth, not surprisingly, is that I’m somewhat torn. …

In the end, I think much of the commentary around Indiana’s law has been overly hysterical. That said, I would have voted “no.”

And another interesting post from the blog Bleeding Heart Libertarians:

As to private-sector discrimination, I’m of the view that private businesses should be free to refuse customers, subject to two categories of exceptions: (a) if the firms are common carriers or (in the common law sense) public accommodations rather than ordinary private retailers and (b) in the United States, due to the constitutional and historical distinctiveness of Jim Crow and its melding of public and private discrimination, discrimination on the basis of race. I think the trend to treat bans on private-sector discrimination outside of public accommodations and common carriers as the rule, rather than a unique exception demanded by the unique shape of Jim Crow, has been a serious mistake.

I’m not endorsing all the ideas in any of these posts, but they are examples of level-headed commentary of the kind you get outside the lockstep authoritarians of left and right.

Also, I like this comment left at Instapundit: “If I read this correctly, it has the effect of making [same-sex] weddings slightly less complicated. A wedding means fifty things to do, half of which are surprises. It’s a lot of stress. Now, because it would be useless, it is no longer necessary to spend time and effort prospecting for the most devout Christian baker or florist in a hundred miles. Saves that, anyway.” Indeed, one less thing.

Finally, from our own comments, Jorge observes:

[The] argument that this law only applies to gays is not credible. Having established that, we all know that the motivation is really about gay marriage. And you know what? That’s fine. Look, whether people agree with this or not, there is a social problem in this country about gays filing lawsuits against people who don’t want to participate in their weddings. Solving this problem puts states in a catch-22. If you pass a law that only applies to gays, that’s illegal discrimination. So it becomes necessary to create a law that serves the public good in a way that’s not discriminatory. Now people are saying they don’t like that law either. That’s just too bad. There is going to be law that solves the problem.

Is this problem ubiquitous? No. But have a number of small business providers in various states been sued by local authorities at the bequest of angry LGBT authoritarians and found themselves deep in debt and driven out of business for the “crime” of turning down gigs to provide creative services for same-sex weddings, which they feel would violate their religious faith, while self-righteous progressives clap and cheer? Yes.

David Brooks also gets it absolutely right:

The opponents [of Indiana’s statute] seem to be saying there is no valid tension between religious pluralism and equality. Claims of religious liberty are covers for anti-gay bigotry.

This deviation seems unwise both as a matter of pragmatics and as a matter of principle. In the first place, if there is no attempt to balance religious liberty and civil rights, the cause of gay rights will be associated with coercion, not liberation. Some people have lost their jobs for expressing opposition to gay marriage. There are too many stories like the Oregon bakery that may have to pay a $150,000 fine because it preferred not to bake a wedding cake for a same-sex ceremony. A movement that stands for tolerance does not want to be on the side of a government that compels a photographer who is an evangelical Christian to shoot a same-sex wedding that he would rather avoid.

And yet that’s exactly what LGBT authoritarians want and envision, and they have no shame about it, either.

Let’s keep it going. Viewpoints on the right that are still worth considering (oh no, he’s linked to websites WE DON’T Like!!!): Kevin D. Williamson on corporate cowardice:

There are three problems with rewarding those who use accusations of bigotry as a political cudgel. First, those who seek to protect religious liberties are not bigots, and going along with false accusations that they are makes one a party to a lie. Second, it is an excellent way to lose political contests, since there is almost nothing — up to and including requiring algebra classes — that the Left will not denounce as bigotry. Third, and related, it encourages those who cynically deploy accusations of bigotry for their own political ends.

More than a little truth here. And related, George Will on Tim Cook’s hypocrisy, with this added observation:

There are two important principles at stake here. One is the government should rarely, and only at extreme difficulty, compel people to take actions contrary to their consciences. The other is that when you open your doors to commerce you open them to everybody. That’s a simple thing. It goes back to the ’64 Civil Rights act, public accommodations section which is surely a great moment in American history. So, you kind of work this out, but the indignation isn’t helping.

But for the fundraisers, party hacks and others with self-serving (or marketing) agendas, fueling polarization is the very point.

Actually, it’s way beyond simply stoking polarization; it’s about inciting mob violence now.

Conor Friedersdorf asks: Should Mom-and-Pops that Forgo Gay Weddings Be Destroyed? Well, we know what LGBT progressives would answer.

Friedersdorf writes:

I also believe that the position I’ll gladly serve any gay customers but I feel my faith compels me to refrain from catering a gay wedding is less hateful or intolerant than let’s go burn that family’s business to the ground.

(Check out the hateful comments when HuffPost Gay Voices ran its hatchet job on Memories Pizza.)

End Game: Capitulation to the mob. Small vendors in Indiana and elsewhere will be driven out of business unless they agree to provide creative services to same-sex weddings. What the authoritarians of the politically correct left won’t tell you is that ever constriction on liberty can come around and smack you in the face. First they came for the conservative Christians….

I don’t agree with former Massachusetts Rep. Barney Frank on his regulatory state policy objectives (Dodd-Frank has been an anchor around the economy, particularly for startups, while a goldmine for compliance lawyers). But in terms of tactical assessments, he has some interesting observations in his new memoir, as reviewed by the New York Times. Some excerpts from the review:

[Frank’s] chief motivation in writing this book appears to be using his experience in public life to argue that the democratic process, though imperfect and given to incremental gains, is a more effective tool for social change than the protests and provocations often favored by the left. …

In 1993, during the debate about gays serving in the military, Mr. Frank participated in a large Washington demonstration for gay rights and relates that he prevented what he says would have been a “disaster.” He eyed a group of about nine or 10 gay uniformed soldiers practicing a leg-kick routine they were to perform on the stage during the televised rally.

“Nothing could have been more devastating to our argument that L.G.B.T. people would blend comfortably into the military than a photo—or worse a video—of these guys lined up not to march but to emulate the Rockettes,” he writes.

Mr. Frank convinced them not to do it and endured their anger—which, he notes, he would often face when urging strategic or tactical restraint with gay rights groups or individuals.

But he vociferously contends that his approach was more effective, and holds up the disciplined and orderly 1963 March on Washington for civil rights as a comparison. “The contrast between that great sober, moving occasion and the antics at our march [in 1993] could not have been greater,” he writes, recalling that one lesbian comedian had said onstage she would like to have sex with Hillary Clinton, then the first lady (using a more expressive four-letter verb). “If a black comedian had begun to joke about having sex with Jackie Kennedy, he would have been thrown in the reflecting pool, not cheered.”

The activists would respond that their militancy lit a fire under the politicos, and there are some narrow examples where that seems true (Act-Up and the FDA). But in general, Frank has a point—up to a point. The national “marches” (in 1979, 1987, 1993, 2000, and 2009) failed to achieve their primary goal (Democrats didn’t move a federal anti-discrimination bill during the times when they controlled Congress during both the Clinton and Obama administrations). Creating “community” and fostering solidarity, often mentioned as vital secondary objectives of these mass mobilizations, are harder to quantify, so that debate will go on.

And yet….What is grating about Frank’s critique is his default supposition that it should be left to inside-the-Beltway politicians to deliver gay legal equality. That’s on par with his default supposition that everything is best left to our liberal-elite Washington betters to handle. It’s (almost) condescending enough to make one side with the militants.

More. As for remembrance of things past, friends who were at the first march in 1979 tell me it was personally transforming. I was there in 1987 and found it inspirational and energizing. But by 1993, the attempt seemed more like politically correct ritual (maybe my consciousness of such things was better attuned), and I skipped the others and watched on C-SPAN, where they appeared to be progressively worse in that regard.

It’s worth noting that these were the goals stated in 1979:

–Pass a comprehensive lesbian/gay rights bill in Congress.
–Issue a presidential executive order banning discrimination based on sexual orientation in the federal government, the military, and federally contracted private employment.
–Repeal all anti-lesbian/gay laws.
–End discrimination in lesbian-mother and gay-father custody cases.
–Protect lesbian and gay youth from any laws which are used to discriminate, oppress, and/or harass them in their homes, schools, jobs, and social environments.

The top goal was never achieved (and I remain equivocal about it), while an executive order banning discrimination among federal contractors was finally obtained last year (although Obama had promised it when seeking LGBT votes in 2008).

A tangent: In the cultural sphere (a least in terms of popular media and audience response), progress is undeniable, as “The Fosters” on ABC Family showed with a recent episode where two 13 year-old boys kiss. Yahooo Entertainment says this marks “the youngest gay kiss in television history.” And “while there was undoubtedly a slew of angry, hateful tweets—unfortunately, that’s nothing new for a show revolving around an interracial lesbian couple and their five biological, adopted, and foster children—the overall reaction has been positive,” the network reports.

For those of us who can recall the controversy and advertiser boycott over “thirtysomething” in 1989, it’s a much changed media world, reflecting a much changed actual world. Washington seems to be the behind the times outlier, to be remedied to a great extent if the Supreme Court does the right thing in June.

Utah is moving forward with an LGBT anti-discrimination and religious freedom measure, for which both local LGBT political groups and the Mormon church provided input and have announced their support. The text of the bill is here. As the AP reports:

At a news conference where Utah senators and LGBT-rights activists joined high-ranking leaders of the Mormon church, officials touted the measure as a model for the rest of the country and history-making for Utah.

The legislation, which includes transgender protections, covers employment and housing discrimination but not public accommodations, which could indicate how strong-arming cake bakers and photographers has played out. It also exempts religious organizations [as well as] the Boy Scouts, and includes job protection for employees who voice moral or political views about marriage or sexuality “in a reasonable, non-disruptive, and non-harassing way.”

Nationally, the LGBT left and religious right will be against it. And given many LBGT activists’ opposition to exempting religious organizations, such a deal isn’t likely in future federal legislation. But in red states that currently don’t have LGBT-inclusive nondiscrimination provisions, it could be a way forward.

Are the compromises worth it to secure employment and housing protections? Jonathan Rauch and the Brookings Institute will be exploring that topic in an upcoming forum.

More. LGBTQ Task Force leader Rea Carey recently reiterated her group’s opposition to exemptions for religious organizations in the proposed Employee Non-Discrimination Act (ENDA), declaring:

…on July 8th, we pulled our support for the Employment Nondiscrimination Act. We simply had come way too far to compromise on such a fundamental principal of fairness and federal equality in the workplace. Instead we redoubled our work for what we really need—strong federal non-discrimination legislation without broad exemptions. I’m happy to report that our opposition, and that of other organizations, worked.

As I noted in an earlier post, “Well, it worked in terms of killing ENDA.”

The following LGBT groups, among others, also withdraw their support for ENDA over its exemption for religious organizations: Lambda Legal; Gay & Lesbian Advocates & Defenders; National Center for Lesbian Rights; and Transgender Law Center.

Moreover, Evan Wolfson, president of Freedom to Marry, said he shares “grave concerns” over the religious exemption.

In the decades before 2013, exempting religious organizations from LGBT anti-discrimination statutes was a consensus position. Now, on the federal level, it’s anathema for many national LGBT rights advocates.

And on the local level, ferreting out self-employed service providers who have conscience objections to performing expressive services for same-sex weddings, and using the state to prosecute them for refusing these gigs, is the new activist front for “equality.”

Furthermore. Jonathan Rauch writes that while the Human Rights Campaign lauded the deal:

…one-sided “religious freedom” laws sought (and sometimes passed) by religious conservatives in other states have deepened suspicion in the LGBT world that religious accommodations are intended as a “license to discriminate.” Some LGBT folks now view any such accommodations as a poison pill. That view did not prevail in Utah, whose example suggests that good-faith negotiations and a tangible upside can still attract gay support for compromise.

Update. Passed by Utah’s Republican-controlled House and Senate, and signed into law by GOP Governor Gary Herbert.

Final word. In his Wall Street Journal column (“Utah Shows the Way on Gay Rights”), William A. Galston writes:

By overwhelming majorities, the state legislature adopted a pair of bills that banned discrimination against lesbians, gays, bisexuals and transgender individuals in employment and housing while carving out accommodations for individuals and institutions with conscience-based objections to these measures. Individual local officials who object to same-sex marriage are not required to preside over such ceremonies, for example, but each local office is responsible for doing so.

… Neither side allowed the best to become the enemy of the good. Both came to see that protections for LGBT individuals and for religious conscience needed to be enacted simultaneously, as a package.

The case of the Michigan pediatrician who declined to take as a patient the newborn child of two lesbians moms, instead referring the family to another doctor in her practice, is being raised as a picture perfect example of why anti-discrimination laws are needed. As Dr. Vesna Roi explained in her letter to Jami and Krista Contreras, “After much prayer following your prenatal, I felt that I would not be able to develop the personal patient doctor relationship that I normally do with my patients. I felt that was not fair to the two of you or to Bay [the baby]. I felt that you deserved that type of relationship and I know you could get that with Dr. Karam.”

This is a grayer area than forcing bakers, caterers and photographers to provide expressive/artistic services in celebration of same-sex weddings. Access to medical care strikes deep chords. In a better world, Dr. Roi wouldn’t have felt this way. But with an anti-discrimination statute, would the Conteras and their baby be better off with a surly and resentful pediatrician? But what about families who don’t have medical options?

More. In the end, medical care should not be denied on the basis of minority status. Whether this requires government intervention is quite another matter, and there is a convincing case that the better response is censure by the American Medical Association, which holds that:

“A physician may decline to undertake the care of a patient whose medical condition is not within the physician’s current competence. However, physicians who offer their services to the public may not decline to accept patients because of race, color, religion, national origin, sexual orientation, gender identity or any other basis that would constitute invidious discrimination.”

That said, in a non-emergency situation where there are choices, why would you want the doctor who doesn’t want you?

Added: Censure by a licensing organization brings social stigma and can limit practice opportunities. To some, apparently, that’s insufficient and the power of the state must be brought in through anti-discrimination statutes to impose confiscatory financial penalties (which if unpaid lead to the threat of incarceration). Sorry, I don’t feel that the iron fist of the state is necessary in this and similar situations.

Added: For the record, the health practitioners’ credentials at Eastlake Pediatrics include Vesna L. Roi, D.O, and Melinda E. Karam, M.D. So Dr. Roi is not a medical doctor but Dr. Karam is. This makes the demand that Dr. Roi be the primary pediatrician—in lieu of an actual M.D.—seem even more strained.

(And if that is not the objective of the lesbian moms, as some responded indignantly, then what is—that Dr. Roi not be able not to take their child as a patient, which is somehow different from insisting that Dr. Roi be their child’s doctor?)

A further note: The American Osteopathic Association covers sexual orientation in its anti-discrimination provisions, but Dr. Roi does not list the AOA among her associations. She does list the American Academy of Pediatrics, which also prohibits sexual orientation discrimination in its ethics code. I’m betting Dr. Roi wishes she had just said she was too busy to take on new patients.

While I disagree with forcing private citizens in business to provide services to same-sex weddings in violation of their religious beliefs, I believe that local government officials whose job is to perform civil weddings should not be able to refuse to marry same-sex couples, or to refuse to marry all couples, as some judges in Alabama are doing. Still, as this Washington Post story makes clear, some of these officials are people struggling with deeply felt religious convictions:

Bobby Martin had always found comfort in his job as a judge, the way it felt like a neat intersection of legality and morality, but last week it seemed to him like those two virtues had diverged. As the probate judge of Chilton County, Martin, 69, was in charge of issuing marriage licenses, and he’d done so for 26 years, in a courthouse next to the Baptist church he’d attended for decades, in the town he’d lived in since birth, to any heterosexual couple who came through the doors. This place of churches and farmland had always made sense to him, but now he’d been told he would need to start issuing licenses to same-sex couples, and he didn’t know what to do..…

He could agree to marry everyone, gay and straight, but the more he thought about it, the more he realized it wasn’t an option, not with what he’d been taught to believe about homosexuality and the sanctity of marriage. If it came down to that, he’d just resign, he decided. Retire early, rather than risk moral compromise.

All of these officials do not fit the “bigot” caricature through which they are often viewed by secular liberals (although, admittedly, Alabama’s chief justice Roy Moore does pretty much seem to). Nevertheless, those with government authority are required to treat all citizens as equal under the law. They are public servants, not private citizens. And if they can’t do so, they should move on.

“While finding that Americans narrowly favor allowing gay and lesbian couples to legally marry, a new Associated Press-GfK poll also shows most believe wedding-related businesses should be allowed to deny service to same-sex couples for religious reasons,” reports the AP:

David Kenney, a self-employed Catholic from Novi, Michigan, said he’s fine with same-sex marriage being legal. He’s among the 57 percent of Americans who said wedding-related businesses—such as florists—should be allowed to refuse service if they have an objection rooted in their religion.

”Why make an issue out of one florist when there are probably thousands of florists?” asked Kenney, 59. “The gay community wants people to understand their position, but at the same time, they don’t want to understand other people’s religious convictions. It’s a two-way street.”

Reasonable compromise that extends freedom to all parties—an affront to progressivism!

Relatedly, in the Wall Street Journal, an op-ed: What Will Matter to Evangelicals in 2016 (firewalled, so google: “What Will Matter to Evangelicals in 2016” site:wsj.com). Writes Russell Moore, president of the Ethics and Religious Liberty Commission of the Southern Baptist Convention:

This isn’t only a Republican issue. Democrats and Republicans stood together for the Religious Freedom Restoration Act—signed by President Clinton. Perhaps it is time for Hillary Clinton to stand up for Jefferson’s vision of freedom of conscience against the sexual-revolution industrial complex in her party, which too often dismisses basic protections of free exercise as a “war on women” or a “right to discriminate.”

More. Meanwhile, LGBTQ Task Force leader Rea Carey, in her annual State of the Movement speech, took issue with the Supreme Court’s Hobby Lobby decision that employers with religious objections should not be forced to purchase abortifacient drugs for their employees, and with exemptions for religious organizations in the proposed Employee Non-Discrimination Act (ENDA), declaring:

…the Supreme Court’s Hobby Lobby ruling was a game changer—creating a world where employers could impose their religious beliefs on their employee’s health care choices. That ruling really magnified the potential impact of blurring the lines between religious beliefs and employment; between the separation of church and state. And, on July 8th, we pulled our support for the Employment Nondiscrimination Act. We simply had come way too far to compromise on such a fundamental principal of fairness and federal equality in the workplace. Instead we redoubled our work for what we really need—strong federal non-discrimination legislation without broad exemptions. I’m happy to report that our opposition, and that of other organizations, worked.

Well, it worked in terms of killing ENDA (maybe not a bad outcome, after all).