Government

Political Disagreement and Demonization

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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.

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The Law: Whatever Federal Bureaucrats Declare It to Be?

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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.”

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The New Year and Beyond

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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.

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Being Reasonable

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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.

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Homeland Security’s Priority – Closing Down Gay Escort Service

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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!!!!’

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The Legacy

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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.

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Support for Liberty Grows

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Despite steadily increasing support for same-sex marriage equality, “the percentage of people who agree that wedding service providers should be required to serve same-sex couples has fallen to 38% from 52% in 2013,” a 14-point drop in two years, according to the 2015 State of the First Amendment study by the Newseum and USA Today.

Correspondingly, “Americans’ support for the First Amendment rebounded strongly over the past year,” specifically, three-quarters of Americans say the First Amendment, protecting freedom of speech, of the press, and of religion “does not go too far,” a jump from 57% last year.

This rise in support for expressive and religious liberty is occurring as LGBT activists gear up to switch from fighting for marriage equality to fighting to deny the right of religious dissent. This trend is exemplified by Evan Wolfson, founder and president of Freedom to Marry, who has come out strongly against religious exemptions for businesses in the proposed federal Employee Non-Discrimination Act (ENDA), a position he seems to be doubling down on after the marriage victory.

Even those with whom we strongly disagree about gay rights and equality have fundamental rights as Americans that must be protected, or else we will all suffer from the results when the state, backed by progressive activists, declares their freedoms denied.

More. In response to those who defend using the state to destroy small businesses that don’t toe the correct line, commenter Craig123 quotes Marx (facetiously, I think), who warned progressives that “The petite bourgeoisie is the most reactionary of classes” and thus must be pulled up by its roots. Given that other commenters have in prior posts charged this blog with “homocon idiocy” while themselves spouting the anti-capitalist anarcho-syndicalist ideas of Noam Chomsky (replacing corrupt private ownership with workers councils and all that), you get a sense of what some of them, in their fervid dreams, are really after—if only those outmoded individual rights can be put asunder.

Furthermore. Why I Support ‘No Gays Allowed’ (via the Huffington Post, and penned by C.J. Prince, executive director of North Jersey Pride, in case you thought it was by some self-loathing “homocon”). She writes that “As a strong supporter of freedom of speech and freedom of religion”:

I do not want to order a wedding cake from a bakery owned by a guy who thinks I’m going to hell. I have no desire to purchase bouquets from a florist who pickets Pride parades. …

If you don’t support my freedom to marry, have the guts to come out about it. Exercise your constitutional right to free speech, and I’ll support that. Then I’ll exercise my capitalist right to shop from your competitor—and to proudly put my money where my allies are.

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Cry Wolf

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If there are Christian tattoo artists, we may have the next wave of anti-anti-discrimination cases.

I can’t say I find Mr. Bythewood’s argument for not providing the tattoo particularly convincing (is there really a “traditional tattoo honor code?”) but that’s the point. I don’t have to.  It’s his business, and unless I’m very mistaken, he’s not the only tattoo artist in New York.

Anti-discrimination laws, including those based on gender, were most needed when discrimination was extensive, unregenerate and unlocalized.  Since the 1950s, America has switched the defaults, and marginalized the kinds of discrimination that were taken for granted: based on race, gender, and now even sexual orientation.  There will never be no discrimination unless someone has finally figured out a way to make a utopia work when its inhabitants will be human beings endowed with liberty.  The best a free society can hope for is to stand, as a whole, for individual liberty, draw clear enough lines about what is truly out-of-bounds, and leave the gray areas for people to negotiate.

Getting a tattoo, ordering a cake for your wedding, arranging for a photographer to document your happiness; these are perfectly respectable gray areas where there are choices pretty much anywhere in this country.  Those choices will not always be ideal ones everywhere, but unless the rule we are seeking is that everyone must have ideal choices everywhere, every time, we have to consider what the appropriate limits on government power must be.

I don’t want my government demanding that I can get a tattoo or a cake from anyone I want.  As an un-inked American, I could no more have gotten a tattoo from Mr. Bythewood than Jane Marie could.  Going somewhere else is one of the calamities I must live with as someone who values a free society.

Bythewood is partly right that Jane Marie trivializes the tradition of feminism with her overstated “wolf cry.”  But that kind of self-dramatizing is becoming endemic.  As true discrimination has diminished, it takes more effort to play the victim.  Histrionics are practically necessary.

This does not just trivialize the profoundly important movements that got us to today, it trivializes government itself.  There are vitally important things that we should expect of our government.  But policing an infinite number of daily commercial and personal transactions is not among them.

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Magistrates and Marriage: They’re Not Private Citizens

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Win some: Florida Gov. Scott Signs Repeal of Gay-Adoption Ban, Despite Vocal Opposition. Lose some: North Carolina Okays Opt-Out for Officials Who Oppose Same-Sex Marriage.

Interestingly, two GOP governors tried to do the right thing (in North Carolina, the legislature overrode a veto by Gov. Pat McCrory).

The Cato Institute’s David Boaz shared this comment on his Facebook page:

Well, I’m sorry to say that the North Carolina House has NOT recognized its constitutional obligation to offer equal justice to all citizens. Instead it has joined the Senate in overriding the governor’s veto of a bill exempting magistrates (the only civil officers authorized to perform marriages) from performing same-sex marriages if they have a religious objection.

As I said previously, this seems clearly wrong. Private citizens — florists, photographers, caterers — should not be forced to participate in ceremonies that offend them. Marrying couples can find another florist or baker who wants their business. But the government represents all citizens. Officers of the court must serve all citizens. By the way, the mission statement of the NC Magistrates Association is “The mission of the Magistrate is to protect and preserve the rights and liberties of all of the people, as guaranteed by the Constitution and laws of the United States and North Carolina, by providing a fair, independent and accessible forum [for] the just, timely and economical resolution of their legal affairs.” Under the new law they will insert “except the gay ones” after “all of the people.”

I made a similar point in an April post:

There is a key difference between private, self-employed citizens who don’t want to provide creative services to same-sex weddings, and servants of the state.

While some of my friends on the left seem to think everyone is essentially (or should be) treated as a servant of the state, that’s actually not the American way, and shouldn’t be.

But, on the other hand, if government officials can’t perform their duty to treat all citizens equally, citing their own religious convictions, then they should step aside. Separation of church and state is also the American way.

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Post-Marriage Forecast

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The New York Times looks at the likely aftermath of a June Supreme Court ruling that there is a constitutional right to same-sex marriage:

Still, once the Supreme Court speaks, in a decision widely expected to make same-sex marriage a national right, the opponents’ anger and energies are likely to focus on a more limited issue, what they call protections for conservative religious officials or vendors who want to avoid involvement in same-sex weddings.

Gerald N. Rosenberg, a political scientist and legal scholar at the University of Chicago, said his former predictions of a wider, lasting backlash to marriage rulings had been overtaken by the “sea change in public opinion.”

Such “opt out” proposals may produce political heat, as recently seen in Indiana and Arkansas, where the governors, under pressure from businesses, felt compelled to weaken so-called religious freedom bills. But they will not impede the ability of gay couples to marry, Mr. Rosenberg said.

And this:

Yet whatever resistance strategies are adopted, many legal and political experts who have studied the impact of divisive Supreme Court rulings in the past, and the trajectory of the same-sex marriage movement, say they do not expect a lasting, powerful backlash of the kind that followed decisions on school desegregation and abortion.

Instead, the experience in states where same-sex marriage has already been legalized suggests that public opposition is likely to wither over time.

“As more couples marry, more people will know people who are married,” said Michael J. Klarman, a legal historian at the Harvard Law School and author of a 2012 book on earlier same-sex marriage rulings. “And those who oppose it will find out that the sky doesn’t fall.”

Assuming that the Supreme Court rules the right way, I think that’s correct. Same-sex marriage is not abortion; it is not the taking of life. There will not be mass mobilizations to pass Ted Cruz’s constitutional amendment.

But the debate over whether independent vendors with religious views opposed to participating in same-sex weddings should be forced by the state to do so (at the behest of angry authoritarians) will continue, and it will be ugly. Think witch hunts.

Confusing the matter is a related but different issue: whether civil servants should be able to opt out, and here I think the answer has to be no. There is a key difference between private, self-employed citizens who don’t want to provide creative services to same-sex weddings, and servants of the state.

While some of my friends on the left seem to think everyone is essentially (or should be) treated as a servant of the state, that’s actually not the American way, and shouldn’t be.

But, on the other hand, if government officials can’t perform their duty to treat all citizens equally, citing their own religious convictions, then they should step aside. Separation of church and state is also the American way.

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