Civil Rights and Discrimination

Religious Liberty: Can We Avoid a New ‘Culture War’?

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“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).

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From the ‘Unintended Consequences’ File

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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.

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Contretemps on the Left

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I almost feel sorry for the Human Rights Campaign. I think they long-ago sacrificed their integrity by becoming an outreach arm of the Democratic party. But the LGBT left is incensed that HRC is not working explicitly for the progressive statist/absolutist agenda. Some days you just can’t win.

More. The protesters are charging, for instance, that HRC fails to include “economic justice” concerns in its Corporate Equality Index, thus “pinkwashing” the grievances they have against corporate America.

Furthermore. LGBTQ Task Force leader Rea Carey said, in her annual State of the Movement speech, that LGBT activism has a “moral obligation” to expand its efforts on behalf of the “greater good,” and “to use our progress and any relative privilege we might have to…do our part for a changed and just society.” By which she means bigger, more coercive and confiscatory government. And no exemptions for religious organizations from the dictates of the state. No thanks, Rea.

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More on the Mormon Offer

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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.

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‘Manspreading’ and the Frequent Pettiness of Grievance Activism

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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”).

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Houston’s Subpoenaed Sermons

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This story is all over the conservative blogosphere, but that doesn’t mean it can just be dismissed. As the Houston Chronicle reports:

Houston’s embattled equal rights ordinance took another legal turn this week when it surfaced that city attorneys, in an unusual step, subpoenaed sermons given by local pastors who oppose the law and are tied to the conservative Christian activists that have sued the city.

Opponents of the equal rights ordinance are hoping to force a repeal referendum when they get their day in court in January, claiming City Attorney David Feldman wrongly determined they had not gathered enough valid signatures to qualify for the ballot. City attorneys issued subpoenas last month during the case’s discovery phase, seeking, among other communications, “all speeches, presentations, or sermons related to HERO, the Petition, Mayor Annise Parker, homosexuality, or gender identity prepared by, delivered by, revised by, or approved by you or in your possession.”

Houston, in deeply conservative Texas, is the largest American city with an openly gay or lesbian mayor, and she has championed the anti-discrimination measure. Well and good, but sorry, this looks awful, as if they are trying to embody the charge that the true objective of LGBT activism is to outlaw the expression of disagreement with the LGBT rights agenda, especially by churches.

So why issue subpoenas for the ministers’ sermons? It makes sense, maybe, if you view churches as nothing but political action committees that happen to meet in buildings with stained glass windows—and/or you think (1) only liberal churches should be able to advocate on political issues, and (2) freedom of speech means the right to engage in speech that supports progressive activism.

As Megan McArdle wrote last summer discussing the contraceptive/abortifacient mandate: “The secular left views [religion] as something more like a hobby… That emotional disconnect makes it hard for the two sides to even debate; the emotional tenor quickly spirals into hysteria as one side says “Sacred!” and the other side says, essentially, “Seriously? Model trains?”

Update. Damage control: Houston mayor criticizes city lawyers’ subpoenas of sermons.

More. Walter Olson blogs: Scorched-pew litigation: Houston subpoenas pastors’ sermons:

Massively overbroad discovery demands are among the most common abuses in civil litigation, and it’s hard to get judges or policymakers to take seriously the harm they do. But the City of Houston, represented by litigators at Susman Godfrey, may have tested the limits when it responded to a lawsuit against the city by a church-allied group by subpoenaing the pastors’ sermons along with all their other communications.

Furthermore. Mayor’s decision to drop subpoenas fails to quell criticism. This will be a millstone around her neck, and quite probably the end of any further political aspirations.

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Trans Accommodations Require Reasonableness

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Regarding the Washington Post story A question for schools: Which sports teams should transgender students play on?, one could be blithe and say that social conservatives claim sexual orientation is a choice but gender isn’t (the anti-LGBT Minnesota Child Protection League stated that in terms of school policies there are no “accommodations made for those who believe that gender is a biological and genetic reality, not a social choice”).

Of course the social conservatives have got this wrong: transgender youth and their advocates are not claiming that gender is a choice; the issue is whether to be true to one’s inherent gender when it does not correspond to the body’s physical reality.

But this doesn’t mean there aren’t real issues of what constitutes reasonable accommodation in locker rooms and showers, especially in schools—and the case isn’t helped by incidents such as this one, in which a transwoman who is biologically male asserted a right to change in the women’s locker room at Evergreen State College in Washington and “Angry parents contacted the police after a young girl saw the transgender student naked inside the locker room,” according to local news reports. Reasonableness goes both ways.

Which reminds me of how New York City decided a few years back not to proceed with allowing a private firm to install individual self-cleaning restroom kiosks (popular in European cities) because they would not be large enough to accommodate wheelchairs, with the result that no New Yorker gained the benefit of this service. Or, for that matter, the argument that better no anti-discrimination law for LBGT people than one that would provide an exemption for religious organizations. I could go on, but you get the point.

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ENDA Is Passé

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Openly gay Rep. Jared Polis (D-Colo.) hopes to get half the members of the House to sign a discharge petition that would force a vote on a revised Employee Non-Discrimination Act (ENDA). The reformulated ENDA would limit the current bill’s exemption for religious organizations, including religiously affiliated private schools and charities. The narrowed exemption might apply only to ministerial positions, which would be a deal-killer for many/most of ENDA’s current House GOP co-sponsors, and I suspect also some Democrats. And although ENDA already was passed in the Senate, with revised language it would stall there as well during reconciliation.

The dilemma: Without a sharply curtailed exemption, many LGBT activists have announced they will no longer support ENDA.

In short, ENDA still is likely to be on a road going nowhere, although the discharge petition endeavor will try to mobilize LGBT voters in the midterms (it’s also supported by openly gay GOP congressional candidates Carl DeMaio and Richard Tisei).

Despite these efforts, ENDA increasingly seems like inside beltway baseball for politicos and activists; it’s no longer generating any real interest among gay voters, whose passion is directed toward marriage equality.

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The ENDA Brouhahah, Again

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Major LGBT rights and progressives groups, including Lambda Legal and the ACLU, have withdrawn their support for the Employee Non-Discrimination Act (ENDA) that seeks to ban workplace discrimination against LGBT workers in the private sector, because ENDA includes a broad exemption for religious organizations, including religiously affiliated hospitals and charities, for instance. The act passed the Senate last year, when it was supported by these same groups, despite the religious exemption.

But after the Supreme Court’s Hobby Lobby ruling, finding that closely held businesses run by their owners on religious principles (but not necessarily religiously affiliated) need not be forced to purchase certain contraceptives for their workers, the left has found an issue.

ENDA, of course, appears to have no chance of being brought up in the GOP House, and the House is going to stay GOP controlled for the foreseeable future. So much of this is about ensuring that the president’s upcoming executive order banning anti-LGBT discrimination among federal contractors doesn’t provide a religious exemption, except perhaps to houses of worship, and some would probably not want to see even that.

I don’t think business owners should be forced by the state to violate their religious consciences, and I am even more wary of the state telling religious organizations who they can hire, fire, or promote to leadership. But the issue becomes clouded when these organizations accept taxpayer money to serve the state.

Nevertheless religious organizations, or even private companies that can demonstrate they are run on religious principles, represent a tiny fraction of the workplace. And much of this controversy feels manufactured with the aim of inducing a certain amount of politically useful hysteria on the left.

More. Some politicos tell me that, at least before this latest contretemps, ENDA had enough GOP support in the House to pass if the leadership would allow it to be brought up for a vote. But that’s conditioned on a broad exemption for religiously affiliated organizations. So apart from pressuring Obama not to provide a meaningful religious exemption in his executive order, another result of the LGBT and progressive groups withdrawing their support for ENDA, as currently conceived, is to ensure that it has no chance of passing the House even if brought forward, thus keeping the issue of a “pure” ENDA alive for another round of Democratic electioneering and fundraising.

ENDA, it should be noted, languished in committee when Democrats controlled both houses of Congress during the first two years of the Obama presidency (2009-10), even as it appeared Republicans were likely to retake the House in the November 2010 midterm election, during which the party appealed to gay voters for funds and support (wait for it) in order to pass ENDA in the next Congress. Yes, kiddies, it’s all about politics and mobilizing the base, and always has been.

Furthermore. As the Washington Post article linked to above reports, the Human Rights Campaign is the outlier among LGBT groups, maintaining its support for a passable ENDA with a religious exemption clause. HRC very much wants, eventually, to claim a victory for ENDA, its top legislative agenda item. Other LGBT groups with rival fundraising operations, however, don’t see their interests aligned with passage anytime soon.

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The Nail in ENDA’s Coffin

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Progressive groups say they’d rather have no Employee Non-Discrimination Act (ENDA) then one that doesn’t force those with faith-based objections to provide creative services for same-sex weddings.

In the past, I’ve been neutral on ENDA—aware of its potential for misuse, along with other anti-discrimination statutes, but mindful of its positive symbolic value. With the advance of marriage equality, the need for such a symbolic statement of inclusion by the federal government no longer seems necessary. And it is now crystal clear that ENDA will be abused, as state anti-discrimination statutes have been, to limit individual liberty and punish those who don’t bend knee to the progressive authority. Good riddance, ENDA.

More. I recently addressed (again) the appropriateness of religious exemptions and so won’t repeat myself, but see No Faith-Based Exemptions from the Dictates of the State?

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