IGF CultureWatch

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).

I recently read a snarky column in the conservative Washington Times taking issue with housing being developed for LGBT seniors. But this point struck me as of interest:

In 2013, a federal housing study found that when heterosexual married couples look for a place to live, they are slightly more likely to get a favorable response than gay couples. HUD said that while the gap isn’t huge, it did find more discrimination in states that had laws on anti-gay discrimination than those that didn’t. The five-month national study covered 50 metropolitan markets and took place in 2011.

Could that be right? I googled and came across a June 2013 Huffington Post story that reported:

One of the most interesting findings of the new HUD survey is that discrimination was actually slightly higher against same-sex couples in states with protections for LGBT individuals.

“Several factors could account for this unexpected finding, including potentially low levels of enforcement, housing provider unfamiliarity with state-level protections, or the possibility that protections exist in states with the greatest need for them,” HUD concluded.

Since it’s the liberal jurisdictions that have passed LGBT-inclusive housing measures, it doesn’t really seem likely that “protections exist in states with the greatest need for them,” does it. What is more probable is that once these nondiscrimination statutes are passed, landlords are less likely to rent to same-sex couples because it becomes that much harder to evict them for legitimate reasons if the tenants can claim unlawful discrimination.

Something similar has become evident with the Americans with Disabilities Act, which prohibits discrimination on the basis of what used to be called disabilities. Once protected-status individuals are hired, it increases the employer’s liability in the event that they are let go. Which could be why, as pointed out by Walter Olson, labor force participation for the disabled actually declined after the ADA’s passage.

Beware those unintended consequences of well-intentioned legislation.

Another example: Labor advocates push for raising the minimum wage to help low-wage earners, who then have their hours cut or find themselves unemployed because, it turns out, businesses actually don’t operate with excess profit margins that can be redirected, by government decree, to salary budgets. Seattle is just the latest demonstration of this unintended (but actually quite well-documented) consequence.

More. The proposed federal Employee Non-Discrimination Act (ENDA) is focused on employment discrimination, not housing or public accommodations (while some activists are now advocating that its scope be expanded to include these areas). But the principle of unintended consequences remains very real, which is one reason I remain equivocal about it. The belief that absent a compelling reason for it, businesses are best left to hire, fire and promote as they see fit, is another. And LGBT advocates have failed to produce convincing evidence of systemic employment discrimination.

As for the comparison with race- and gender-based civil rights measures, enforcement of these typically falls back on disparate impact analysis, meaning employers who don’t employee women and racial minorities based on their representation in the population (or at least their representation among qualified job applicants) can be sued by either the EEOC or those who believe they suffered discrimination by not being hired (or promoted). Since there is no convincing count of LGBT people in the population, no one is seriously proposing that LGBT disparate impact be written in to anti-discrimination legislation.

Furthermore. Walter Olson also took note of the housing discrimination finding.

David Link recently posted a thoughtful response to The Mormon Bargain, regarding the LDS leadership’s offer to support anti-discrimination legislation that protects LGBT people against housing and employment discrimination, as long as it includes religious liberty protection. Now, Jonathan Rauch has weighed in, and his op-ed in the New York Daily News, Gays should welcome this move by Mormons, is also worth reading.

Rauch takes the position that:

By coming forward to support new gay-rights protections, the church has publicly and pointedly broken with the confrontational approach of evangelicals, the Catholic Bishops and culture-warrior litigation groups like Alliance Defending Freedom. By doing so, it weakens those groups’ polarizing strategies and their claims to speak for religious conservatives.

If the Mormons’ outreach falls on deaf ears with gay-rights activists, religious hard-liners will gleefully say, “We told you so; gay-rights advocates are interested in fighting, not talking.”

Of course, some negotiations fail. But it would be self-defeating for gay civil-rights advocates not to probe the possibilities for compromise.

There are many gay people for whom allowing religious exemptions to anti-discrimination laws—any religious exemptions—has now become anathema. This is a fairly recent development, promoted by those who seem dismissive of any right to religious dissent. It’s another sign of the abject polarization of our times.

More. Via the L.A. Times, An embrace that swayed the Mormon Church on gay rights. Mormon and gay-rights leaders spent five years exchanging views in back-channel talks. It won’t matter to progressive absolutists who reject any compromise that recognizes the value of religious liberty.

A New York Times exposé is getting a lot of internet buzz. The topic is “manspreading,” the practice of men spreading their legs while sitting on public transportation. The articles begins by describing the issue as one of men taking up space beyond the confines of a single seat. But before long, we get to the heart of the matter: manspreading is described by aggrieved women as sexual harassment.

Here is a photo from the Times piece showing this insidious practice. Trigger warning, beware of the microaggressions you might experience from viewing this.

Many readers taking exception to the Times piece (Gawker reposted a range of comments) pointed out the obvious: men have testicles and it can be uncomfortable to sit with legs together.

The counter-response by some feminists has been, essentially, “too bad” (I’m putting it politely). Like Victorian prudes, propriety demands that legs only be crossed at the ankles.

The libertarian-minded writer Cathy Young puts things into perspective:

[F]eminist activists and commentators have tended to… promote women-as-victims, men-as-bad-guys narratives. … Trivial pursuit is not the path to equity. Feminism is now battling the alleged scourge of men who take up too much space on public transit by spreading their legs? Not only is this selective male-shaming (social media users quickly noted that female riders are guilty of different-but-equal sins), it is also a comically petty grievance that could suggests the aggrieved have no real issues. Half of successful advocacy is knowing to pick one’s battles.

Women, minorities, gay people, all people…there are plenty of real problems, yet our culture of grievance is obsessed with manufacturing offenses and then forcing others to repent these secular sins. it’s often about nothing more than who’s got the power to make others placate their wounded egos.

More. Craig123 comments: “The objections to ‘manspreading’ are part of the wider feminist critique of masculine ‘swagger,’ which has all to do with a hatred of masculinity and masculine expression. Gay progressives, these are your left-coalition allies. Enjoy your neuterdom.”

Furthermore. No, this isn’t some obscure point raised by fringe feminists. Via the local CBS affiliate, in Bill de Blasio’s New York MTA To Launch Campaign Aimed At Curbing ‘Manspreading’ on Public Transit.

Still more. And let us not invisibilize those other manifestations of patriarchy that have appeared in in the feminist lexicon of late, among these manslamming (“the sidewalk M.O. of men who remain apparently oblivious to the personal space of those around them”) and mansplaining (“explaining without regard to the fact that the explainee knows more than the explainer, often done by a man to a woman”).