The Census Brouhaha

Meghan Maury, of the Criminal and Economic Justice Project at The LGBTQ Task Force, emails:

The Trump Administration is trying to make us invisible by excluding LGBTQ people from the 2020 Census and the American Community Survey (ACS). This is yet another attack on LGBTQ people’s freedom, justice, and equity.

Please sign our petition to the Trump Administration to demand that they reverse their decision not to collect data about LGBTQ people and their families.

We cannot allow LGBTQ lives to be erased! If the government doesn’t know how many LGBTQ people live in our country, how can it do its job to ensure we’re getting fair and adequate access to the rights, protections, and services we need?

[Request for donation]

Gregory T. Angelo, head of the Log Cabin Republicans, emails:

How many more times can the Gay Left cry wolf?

The latest outrage du jour? Word that the 2020 Census will not include a question demanding survey respondents out themselves as gay or transgender.

Nevermind — the fact that outing is always wrong . . .

Nevermind — the fact that the Census has never included any LGBT questions in its history . . .

Nevermind — the fact that the Census recommendations were made by an Obama appointee . . .

In this era of hot takes and fake news, there’s nothing quite like a clickbait headline to set the wheels of The Liberal Outrage Machine™ whirring with breathless exasperations about anything and everything GOP.

It’s possible to have a good-faith debate about the size and scope of the federal Census, but half-truths and a lefty-media blame game in which everything Republicans do is bad and the Democrats are the sole arbiters of good is a disservice to journalism and a disservice to our republic.

[Request for donation]

Guy Benson tweets:


Walter Olson has more:

Trump and LGBT Issues: Beyond the Fear-Mongering

Walter Olson, a former Independent Gay Forum contributing author, shares his expectations about what’s ahead for LGBT issues in a Trump administration—and, tangentially, on the obtuseness of left-liberal LGBT political groups. [Update: a slightly revised and more accessible version was published Nov. 13 in the New York Post.] Excerpts:

• Freedom to marry is not going anywhere. The Supreme Court, even after two or three Trump appointments, is unlikely to reverse the outcomes of Windsor and Obergefell unless public opinion itself turns against those outcomes, which I do not believe it will.

• The plans of organized gay groups for sweeping new legislation are largely a dead letter. They will not admit that it was a mistake to have pulled support for the possibly enactable ENDA in favor of the overreaching Equality Act. (For reasons I have written about elsewhere, I myself favor neither of these bills.)

• Following the ACLU’s lead, organized LGBT groups will go on refusing to acknowledge any legitimate role whatsoever for religious or conscience exemptions in discrimination law and will decline to enter any negotiations to amend, refine, or otherwise improve measures like the so-called First Amendment Defense Act (FADA). That will in turn increase the danger that Congress will pass some version that is bad, unfair, or impractical.

• There will be at least one surprise that would ordinarily be seen as positive, such as the first appointment of a gay person to a Cabinet or Supreme Court post.

I agree.

More. Walter adds in the Post version:

I was not a Trump backer in last week’s election, but you don’t have to support him to see the pattern. Since he began testing the political waters in the 1980s he has repeatedly and visibly distanced himself from the rut much of the GOP was mired in on this set of issues.

In his acceptance speech in August, when GOP conventioneers heartily applauded his pledge to “do everything in my power to protect our LGBTQ citizens from the violence and oppression” of jihadist ideology, he departed from his script: “I have to say, as a Republican, it is so nice to hear you cheering for what I just said. Thank you.”

By now it’s part of his brand, and no one cares more about protecting his brand than Donald Trump. I suspect to do that he’ll prove quite prepared to rein in the unwise impulses of some of his appointees.

And on “60 Minutes” Sunday night, CBS News reports:

Trump said after the Supreme Court ruling last year it’s the law of the land — and that he is “fine” with that being the case.

“It’s irrelevant because it was already settled. It’s law,” he said. “It was settled in the Supreme Court. I mean it’s done … these cases have gone to the Supreme Court. They’ve been settled. And– I th– I’m– I’m fine with that.”

This is only a surprise to those who got their news from the mainstream and LGBT media during the campaign, or read LGBT political groups’ dishonest fundraising appeals.

Cake Decrees

You WILL make a cake celebrating a same-sex marriage. You WILL make a cake urging votes for Trump. Where do you think you are, America?

Walter Olson comments on Facebook, “By 2016 all social divisions had begun to play out as conflicts over cake decoration.”

Procedure Serves a Purpose

Columnist Bart Hinkle writes that, rather than the Obama administration’s directive, with no review or public comment, that all public school restrooms and locker rooms must be open for use based on gender self-identification—resulting in several legal challenges—that “a normal rule-making procedure would have allowed for thoughtful consideration of such issues.”

As Hinkle notes, both left and right are quite willing to violate procedural rule-making norms meant to restrain the arbitrary use of federal power, if it serves their own agendas to do so. But each will strenuously condemn the other side for violating those same procedural norms on behalf of an agenda they oppose.

Political Disagreement and Demonization

On Donald Trump’s selection of Indiana Gov. Mike Pence as his running mate, the Washington Post reports:

Clinton backers criticized Pence as a social warrior. Chad Griffin, president of the Human Rights Campaign, a leading gay rights advocacy group, called him “the face of anti-LGBTQ hate in America.”

The governor, Griffin said, “has made attacking the rights and dignity of LGBT people a cornerstone of his political career — not just a part, but a defining part of his career.”

Pence’s gubernatorial tenure has been marked by a law he signed last year that could have allowed businesses to refuse service to gay people — sparking a national firestorm and a backlash from the business and — professional-sports communities that forced Pence to revise the statute.

A bit of perspective here. Griffin is a long-time personal and professional associate of the Clintons, a hyperpartisan who sees his role as funneling LGBT labor, votes and dollars to the Democratic party.

Pence is a social conservative, to be sure. But in Griffin’s view and that of the LGBT establishment, any disagreement with the left-progressive LGBT agenda makes you a ripe target for demonization. This is important, because it suggests that there can be no legitimate disagreement on the competing rights of gay legal equality and individual religious freedom.

The LGBT establishment and liberal media can put all the scare quotes they want around “religious liberty”—the way that social conservatives used to (and sometimes still do) put scare quotes around “gay marriage.” That doesn’t overcome the inconvenient truth that, in America, individuals do (or at least should) have the right not to be compelled by the state to engage in activities that violate their religious faith. And claims by the liberal left that such faith is wrongheaded does not (or should not) rob believers of that right.

Competing rights, in a constitutional system, are not easy to reconcile, and there will always be conflict around them. Demonizing those on the other side—the default position of the progressive left—only makes clear who the haters are, and, increasingly, it’s usually not the social conservatives.

That said, the Indiana religious freedom bill was, in my view, poorly constructed. Legislation to protect the rights of small business owners not to be compelled to provide creative services for same-sex weddings should not single out gay people as a class for whom discrimination is generally permissible. I don’t believe that was the intent of the legislation, but its supporters left themselves vulnerable to that interpretation.

On the wider issue of the 2016 presidential campaign, I’ve made it clear that I’m supporting the Libertarian party ticket of former New Mexico Gov. Gary Johnson and his vice presidential running mate, former Massachusetts Gov. Bill Weld—not because I have any illusions that they’ll win, or even because I agree with them on every issue (I don’t), but because I think supporting third parties whose views mostly align with your own may eventually have a constructive effect on the two major parties, if you believe (as I do) that both have gone seriously astray.

I see Donald Trump and Hillary Clinton as untenable candidates, for different reasons. And sure, if LGBT rights is your predominant interest and you feel it is absolutely vital to ensure that the government force owners of small bakeries and independent wedding planners to provide their services to same-sex weddings (because, you know, “Jim Crow”), then of course you’ll be behind Clinton.

But while I find Trump’s nativist appeals and economic nationalism wrongheaded, and his style far beneath the dignity of the presidency, I think Clinton’s foreign policy misjudgments as Secretary of State (especially as regards Libya), her grossly misguided handling of classified e-mails and lying about it, her providing favors for Clinton Foundation donations, her pandering to the teachers unions in opposing vitally necessary public education reforms, and now her championing of the worst ideas of Bernie Sanders as regards entitlement expansion, all make her unacceptable.

I’d like the Democratic party to move back to the center on economic issues, and for the GOP to let go of its opposition to gay legal equality. I support reasonable restrictions on late-term abortions, especially partial birth abortion which seems to me little different from infanticide. Also, I don’t think the federal government should be using taxpayer money to pay for abortion, which a great many taxpayers view as the taking of human life.

And I don’t have a problem with allowing independent service providers to turn down gigs involving same-sex weddings if, in their view, to take those assignments would violate their religious faith (civil servants, as government employees, are different).

I’m sure that, in Chad Griffin’s view, that makes me a “hater.”

More. Walter Olson tweets about Indiana’s Religious Freedom Restoration Act, which Pence backed along with other social conservatives:

Reminder: Indiana RFRA law had fairly moderate content, but sank in part b/c it was seen as pet project of so-con hard-liners around Pence.

It all brings to mind Chris Bull and John Gallagher’s book on the culture wars of the ‘90s, Perfect Enemies, in which they observed: “As some leaders on both sides have discovered, it is easiest to raise money when your opponent is demonized out of all recognition.”

Which, of course, takes us to Everyone I don’t like is Hitler—demonstrated here and elsewhere—and Why everyone we don’t like is not.

The Law: Whatever Federal Bureaucrats Declare It to Be?

Via the National Law Journal:

The United States Equal Employment Opportunity Commission (“EEOC”) reminded employers this week in no uncertain terms that they are required to provide transgender workers with access to bathrooms that corresponds with their gender identity. A failure to do so – the EEOC warned – runs the risk of violating Title VII of the Civil Rights Act.

Title VII prohibits employers—including federal, state, and local governments— from discriminating against employees on the basis of sex, race, color, national origin, and religion.

There are many reasons for opposing the North Carolina law that (along with nuking locally passed LGBT anti-discrimination provisions in the state) insists that restroom and locker facilities in government buildings and schools be determined by gender as specified on birth certificates. (The law, as the Washington Post confirms, lets private businesses continue to set their own rules for bathrooms and locker rooms, a point sometimes misreported elsewhere.)

But every bad state law is not open to the executive branch to give thumbs up or thumbs down—a power the Constitution gives to the judiciary, not the federal bureaucracy. And reinterpreting Title VII this broadly begs the question on what limits, if any, progressives think may apply to executive branch agencies.

At some point, a president not of liberal liking will obtain the White House and progressives will morph into strict constructionists who will deny they were ever anything but.

More. Yes, some of these challenges will end up before the courts, where they should be decided. But the federal government is threatening to cut funding to North Carolina’s schools based on the feds’ determination that the state’s law is invalid:

North Carolina receives more than $4 billion in federal education funding each year. Now the federal government is considering withholding that money because, the Justice Department says, the state has passed a law that violates the civil rights of transgender individuals by forcing them to use bathrooms that correspond to the sex on their birth certificates instead of their gender identity.

And this:

North Carolina is facing additional threats to its federal funding as two more agencies—the U.S. Department of Transportation and Housing and Urban Development—say they are reviewing the state’s controversial House Bill 2.

Furthermore. Pouring fuel on the fire, the Obama administration next issued a directive telling public schools throughout the U.S. to allow students to access school restrooms and locker rooms based on their gender identity. Meaning, to be blunt, penises in girls locker rooms. And any opposition, such as suggesting private changing/showering areas for non-transitioned transgender students, is prejudice, hatred, Jim Crow. End of discussion, you bigots.

Via Robby Soave at reason.com: Title IX Is a Dangerous Tool for Extending Transgender Kids’ Rights.

Via Tom G. Palmer:

This case of rule by decree and federal overreach is a very valuable gift to the Trumpanzees. The issues are not so easily sorted out and probably better addressed by using common sense in various ways.

Exactly. But inflaming the culture wars serves the interests of partisans on both the left and right.

From the comments: “In the early 80s the Reagan administration cut off highway funds for any state that didn’t raise its drinking age to 21. … Don’t pretend like there’s no precedent for the federal government making this kind of threat or that it’s only Democrats that have done it.”

Response from commenter Jared: “Balderdash. The drinking age was raised nationally by Congress—when it passed the National Minimum Drinking Age Act—and so the executive branch under Reagan was executing the will of Congress. In this case, Congress, even when the Democrats were in control, has refused to pass a transgender rights law. This directive is based on the Obama administration’s radical reinterpretation of the existing civil rights laws, in the face of congressional inaction — a very different situation, and one that represents a sweeping expansion of executive power.”

The New Year and Beyond

2015 was the year of marriage equality, a goal that brought together gays and lesbians from across the political spectrum. 2016 and beyond is likely to see a continuing divergence among collectivist progressives, live-and-let live moderates, and individual-rights libertarians.

In the presidential election, the GOP looks unlikely to nominate one of the candidates who can bring the party into the 21st century on LGBT issues. Whether limited-government gay voters pull the lever for Hillary, sit the election out, vote Libertarian, or go with the Republican nominee will depend on how bad the GOP candidate is on social issues, and how bad Hillary is on economic/government overreach and over-regulation. The result (most likely a Clinton presidency) isn’t likely to be good for the country.

The institutional LGBT advocacy establishment will push for The Equality Act, which will go nowhere. The act would add sexual orientation and gender identity to the Civil Rights Act of 1964, and expand that act’s definition of public accommodations to cover “any establishment that provides a good, service, or program” including “an individual…who is a provider of a good, service, or program.” Take, that, wedding planners, caterers and photographers!

Religious exceptions under The Equality Act would be limited to houses of worship, and perhaps only to ministerial positions, and the measure explicitly sidelines attempts to claim religious liberty rights by legislating that “The Religious Freedom Restoration Act of 1993 shall not provide a claim concerning, or a defense to a claim under, a covered title, or provide a basis for challenging the application or enforcement of a covered title.”

The Equity Act demonstrates that LGBT activists are no longer interested in any kind of a reasonable workplace anti-discrimination bill that might obtain the support of moderate conservatives and libertarians.

Transgender issues will continue to dominate LGBT discourse. There will be greater acceptance of transgender people as part of a diverse society, but if compromise is rejected over the issue of public restrooms and, especially, gender-discordant nudity in locker rooms, expect to see more backlash. Progressives will be mystified by this.

Political correctness, with all its authoritarian-left overtones, will continue to be the dogma coming out of the progressive universities and the liberal media establishment, and it will persist in producing push-back among many Americans who value freedom of speech and freedom of religion, including the right of citizens not be to compelled by the state to engage in expressive activity that violates religious belief. Progressives will continue to be contemptuous of such intransigence.

Being Reasonable

Rod Dreher has a good post about the martyrdom of Kim Davis.  He is concerned about the effect of her case on religious freedom in general.  But he’s ignoring the central protection Kentucky itself has instituted to protect religious liberty.

Prof. Eugene Volokh has the best analysis of the actual law, and the Kentucky religious freedom protection statute seems very clear that the state would make a reasonable accommodation for Davis if she were interested in being reasonable.  In fact, the religious freedom laws passed by both the state and federal governments in the last two decades, are weighted — sometimes unreasonably (in my view) — in favor of religious freedom.  Despite my feelings, that is a policy choice elected officials have made, and it is the law.

Davis’ best argument is that she doesn’t want to have her name on state marriage certificates if they will be issued to same-sex couples, because the use of her name in those circumstances violates her religious beliefs.  The statute only requires her beliefs to be sincere, not objectively reasonable or even consistent.  Under the Kentucky law, if it is not unduly burdensome on the state to remove her name, she could continue to serve in her job.  That would require either reconfiguring how Kentucky marriage certificates look and perhaps having to reprint all of them going forward, or perhaps somehow scratching her name (if not her office title) from them.  These options may or may not be reasonable given the specifics of what processes are in place, which ones are required by state statute, etc.

Volokh says this is a “modest” request. That might be true, though “modest” might not be the word I’d use. If one elected official in one Kentucky county can bring lawful marriages in her jurisdiction to a virtual halt because of her religious beliefs, and demands that her view of religion be accommodated countywide, and possibly statewide depending on the statutory rules for marriage forms, that seems to me immodest in the extreme.

Davis’s case is extraordinary because she has insisted that her personal religious belief should govern, not just her own actions, but those of her entire office, including (in her view) all of the people who work for her.

Compare the extent of her preferences to those of Judge Vance Day in Oregon.  Judge Day has announced that he will not perform same-sex marriages due to his religious beliefs. Unlike the office of a county clerk, the performance of marriages is entirely discretionary for a judge. In fact, Judge Day specifically told his staff that they should forward any requests for same-sex marriages to other judges who do not share his religious objections.  Judge Day has at the very least made it clear that his religious objections are his own, and made an accommodation to the same-sex couples who might have approached his office to make sure that their rights are protected at the same time that his religious beliefs are respected.

Here is another example, one cited by Dreher that works in the opposite direction.  Gavin Newsom, as mayor of San Francisco, announced in 2004 that he felt California’s law prohibiting same-sex marriage was unconstitutional, and that henceforth City Hall would be happy to provide marriage licenses to same-sex couples, which is did, to great joy.  Dreher calls this “lawlessness,” and implies that those who supported Newsom are hypocrites if they oppose Davis.

Newsom went beyond his authority as mayor, but he was not, as a NYTimes editorial quoted by Dreher suggests, defying a court order.  In fact, the California Attorney General challenged the mayor’s political grandstanding, and when the California Supreme Court ruled against Newsom, the marriages ended.  Dreher’s comparison of Newsom to Davis would hold only if the mayor had truly disobeyed the court ruling and maybe gone to jail for that.

Moreover, while Newsom was indeed acting (or more accurately overacting) on a moral principle, it was one grounded in the civil law, not God’s.  The prior year, the Massachusetts Supreme Court had ruled that the state constitution protected the rights of same-sex couples to get married.  While Newsom was in grave error about his own authority, he also knew when the stunt was over.

Davis now has to make that same determination.  She can be a martyr for as long as she likes.  Kentucky officials can determine whether it makes sense to accommodate her religious beliefs and remove her name from marriage certificates.  The question is whether she is going to be reasonable enough to accept the terms she, herself, offered.

Homeland Security’s Priority – Closing Down Gay Escort Service

As Reason reports, what a waste of time and money: Homeland Security Raids Rentboy.com — DHS “will use its unique authorities to disrupt and dismantle” gay escort sites, says special investigator.

In addition, Scott Shackford shares 6 Thoughts on the Rentboy.com Bust from 1 Angry, Gay Libertarian. He explains:

There is absolutely no pretense of pretending there are any “victims” here. Nobody is charged with “trafficking.” There is absolutely nothing in the complaint that even hints at the idea that there is anything nonconsensual happening….

As usual, follow the money. Want to know the real reason why DHS is involved? … The feds are looking to seize $1.4 million from six bank accounts related to the raid. This money, thanks to federal asset forfeiture rules, would likely be split among the agencies involved, including the New York Police Department, who offered up their assistance in the raid even though there was probably no need for both agencies.

Will LGBT Democrats defend (because, you know, it’s Obama so it’s gotta be ok)?

More. Some are speaking out. Good! But not the beltway players.

Some are also wondering why NYC’s famously progressive Mayor Bill de Blasio and Police Commissioner William Bratton worked with the federal prosecutors.

Imagine if this happened with a GOP president and mayor. LGBT media would be nothing but ‘Republicans’ war on gay sex!!!!’

The Legacy

Obama does the right thing in Kenya.

As I’ve said previously, I believe advances in gay legal equality and social inclusion will be the great legacy of the Obama administration, and I suspect Obama may realize this.

Perhaps health care exchanges will last, although the labyrinth of business mandates under Obamacare are likely to be scaled back by a future administration and Congress. Otherwise, the debt-spiraling misspent trillions in the great redistributive give-away that Democrats called “stimulus,” the ever-expanding growth-deterring over-regulation of businesses, and the hapless foreign policy will be seen for what they are.

Even so, beginning at the very end of his first term with repeal of don’t ask, don’t tell (which heretofore he seemed willing to let Harry Reid block along with the Employee Non-Discrimination Act), followed by the administration’s opposition to the Defense of Marriage Act and support, eventually, for marriage equality, up through making an issue of gay rights internationally, Obama got one big thing right.

More. Sadly, he’s gotten so much else wrong. Columnist Daniel Henninger writes in the Wall Street Journal (7/30/15):

The American anxieties Donald Trump has tapped into are real and rational. … It’s what everyone in politics, including Hillary Clinton, knows has been the No. 1 concern of the American people for years: the U.S.’s underachieving economy. …

The U.S.’s average postwar growth rate is 3.3%, and has often been higher. Across the entire 6½ years of the Obama presidency it has been about 2%, and often lower. … The labor-force participation rate, 62.6% last month, is at its lowest level in 38 years. In human terms, 432,000 people dropped out of the workforce in June, and nearly two million are called “marginally attached to the labor force” by the government. … For much of the private economy, the Obama presidency has been almost seven years of “Survivor.” …

Here is what Reagan’s tax and regulatory policies produced from 1982-89: an economy that grew by a third and a standard of living, as measured by real disposable income, that grew by 20%.

Henninger concludes, “The result [of Obama’s economic policies] is a populace that is becoming resentful, surly and anxious for a way out,” and increasingly receptive to populist demagoguery.

Also from the WSJ, The Six-Year Slough: New GDP revisions show the worst recovery in 70 years was even weaker.

And yes, Reagan on gay legal equality/social inclusion, not so good. No party has a monopoly on the truth.