Politics & Public Opinion

A Good Fight

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Via National Journal: Group Aiming to Change GOP’s Anti-Gay-Marriage Platform Plank Expands:

American Unity Fund, a well-funded Republican group supporting same-sex marriage, is absorbing Young Conservatives for the Freedom to Marry’s effort to change the party platform.

Good luck to them, but:

Social conservatives, led by Family Research Council president Tony Perkins, are expected to staunchly oppose any changes to the party’s marriage platform.

Gay GOPers and their supporters may not succeed this time, but a generational change is underway, even in conservative circles.

That the pace of change on the right has slowed somewhat following the Supreme Court ruling in favor of same-sex marriage is probably in response to the linkage of the right to marry with the denial of the rights of small businesses not to be forced to provide their services to same-sex weddings.

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Eric Fanning’s Sexual Orientation Should Be Inconsequential, but It’s Not

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Everything is now hyper-politicized. President Obama nominated Eric Fanning, a specialist on national security issues, to be the new Army Secretary, the service’s top civilian leadership post at the Pentagon. For good or ill, the coverage has led with the news that Fanning would be the first openly gay secretary of a military branch.

Of course, GOP presidential wannabe (but never will be) Mike Huckabee blasted the move. “It’s clear President Obama is more interested in appeasing America’s homosexuals than honoring America’s heroes,” said Huckabee.

But issues with the coverage, and the way the announcement was handled, were also raised by Richard Grenell, a leading foreign policy wonk who during the last presidential election cycle had been selected to be Mitt Romney’s foreign policy advisor, before social conservatives erupted and pressured Romney to drop him (technically, to facilitate his resignation) because he is openly gay.

Grenell tweeted “The White House has successfully announced Eric Fanning as the most qualified gay leader for the Army. It’s so offensive” and “I can’t complain about the media defining a nominee by his sexuality because it’s how the White House characterized it. #Irrelevant=Offensive,” and then “issuing press releases on someone’s sexuality is offensive because it’s irrelevant. Is he the most qualified or the most qualified gay?”

Grenell, it’s worth noting, has worked to educate conservatives on gay issues. For instance, in June he penned (at Foxnews.com) The Conservative Case for Gay Marriage.

It’s not as if the press wasn’t going to make a big deal over Fanning being gay, and it would be unreasonable to expect LGBT rights groups not to celebrate it. But I think Grenell raises a point worth considering. Similar to what those who benefit from affirmative action preferences in academia and jobs face, Fanning now has to contend with second-guessing over whether he was appointed because he was the best candidate (who happens to be gay), or because Obama wanted to make a point about gays and the military.

In that sense, the press and advocate statements haven’t done Fanning any favors.

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Kim Davis Aftermath

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From an AP story:

“There are no winners. Everybody’s been hurt,” said Lois Hawkins, a Morehead native who works as the executive secretary to the county’s top elected official. “It’s going to be different. It can’t go back the way it was.” …

Protesters and supporters alike have come to Rowan County as well, adding to the stress for locals who want to get back to normal. Ante Pavkovic, a pastor from North Carolina, stood in the lobby of the county clerk’s office Wednesday with a sign demanding that Davis’ employees be fired for disobeying their boss by licensing same-sex marriages, even though they too face the threat of jail or fines if they defy the judge.

If Davis moves to fire her deputy clerks who issue marriage licenses to same-sex couples, this could all blow up again. But for now, the dust is settling. The social conservatives have gotten a heroine who will fill their fundraising coffers.

But they’ve also lost an important advantage: Making the case for the freedom not to be compelled to act against religious beliefs, when defending self-employed services providers such as bakers, photographers and wedding planners who wish not to lend their efforts to same-sex marriages, had the support of a majority of Americans, including many who support same-sex marriage. But the social conservatives have now conflated that with Kim Davis and a handful of others who don’t want to recognize same-sex marriage as government officials.

That stance makes the religious right swoon, but it’s not a winning position with most Americans. Yet it’s now the battle they’ve chosen to engage.

More. David Boaz writes that while religious right activists aren’t giving up, they have failed to provoke the backlash they sought—with Kim Davis being that rare exception that proves the rule:

Unlike the continuing divide over abortion, public opinion has been moving rapidly toward support of same-sex marriage. … The obvious difference is that abortion involves the termination of a life. Many Americans regard that as murder, while others think it is at best morally troubling. Gay marriage, on the other hand, means people promising to love and support another person. It’s a lot harder to organize a campaign against that, or even to sustain people’s original opposition once they learn that some of their friends and family are gay and want to get married.

Furthermore. Via Slate, New Poll: Kim Davis May Have Seriously Damaged the Cause of Anti-Gay “Religious Liberty”. A similar point to mine above, although Mark Joseph Stern I assume thinks this is entirely a good thing, and I don’t.

And separately, David Blakenhorn draws an important distinction between “principled civil disobedience” and “principled lawlessness.”

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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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The Kim Davis Circus

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(Continuing the discussion from the prior post….)

Legally correct, perhaps, but “jailed for refusing to marry the gays” is like giving anti-gay-marriage Ky. county clerk Kim Davis the religious right martyrdom prize, sure to cause a surge in their fundraising. Apparently, there is no way just to remove Davis from office for failing to carry out her duties.

Walter Olson offers some pertinent observations, including that:

Among Republican White House candidates, Carly Fiorina seems to be among the few willing to draw appropriate public-private distinctions: “when you are a government employee, I think you take on a different role.” Also from a conservative perspective, Dan McLoughlin has a thoughtful what-goes-around-comes-around view on lawlessness and the pervasiveness of double standards.

Huckabee, of course, is a complete embarrassment.

On the other hand, it is also true that if this were a liberal clerk citing her Quaker faith to refuse to sign gun permits, conservatives would be up in arms (not literally, at least in that county) while at least some progressives would defend her right to ignore the law.

More. Kasich on Ky. clerk: ‘She has to comply.’ GOP presidential contender Gov. John Kasich (R-Ohio) said on Sunday that state marriage clerks should issue same-sex marriage licenses even if they morally oppose the practice. “She’s not running a church,” Kasich said.

There is now a real split between Fiorini, Kasich, Bush, Graham and (with greater equivocation) Trump and (via second-hand reports) even Carson, versus Davis-defenders Huckabee, Cruz, Walker, Jindal, Santorum and Paul.

Some progressive sites play up GOP support for Davis, but the real story is how many of the contenders have come out against her.

Furthermore. Sprung! It’s a good thing — yes, she should be removed from office. But making her a martyr plays into our opponents’ hands.

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Freedom Means Freedom for Everyone

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Out actress Ellen Page has garnered much publicity for her impromptu debate over gay rights with GOP presidential candidate Ted Cruz at the Iowa State Fair. But what did she choose to go on the offensive about? No, not Cruz’s support for a constitutional amendment to roll back gay marriage, but his defense of religious freedom for conservative Christian bakers, florists and other service providers.

I’m continually shocked at how tone deaf activists-minded gays and lesbians of the leftish persuasion are on this issue, cavalierly dismissing religious freedom as nothing put an attempt to allow discrimination against gays, period, end of story. If only we can get rid of religious freedom, well, then we’d be set. Progressive government would tell everyone what to do and, you know, that would be keen.

But a majority of Americans don’t believe small, independent business owners should be forced to provide services to same-sex weddings against their religious beliefs (that is, self-employed private business people, not government civil servants. And there is, or once was, a difference here). Many of those supporting religious freedom for those who have religious objections to same-sex weddings are themselves ok with same-sex marriage. They’re not bigots. The intolerance is on the other side.

 More. John Corvino writes in the New York Times Gay Rights and the Race Analogy:

When civil rights laws were passed, discrimination against blacks was pervasive, state-sponsored and socially intractable. Pervasive, meaning that there weren’t scores of other photographers clamoring for their business. State-sponsored, meaning that segregation was not merely permitted but in fact legally enforced, even in basic public accommodations and services. Socially intractable, meaning that without higher-level legal intervention, the situation was unlikely to improve. To treat the lesbian couple’s situation as identical — and thus as obviously deserving of the same legal remedy — is to minimize our racist past and exaggerate L.G.B.T.-rights opponents’ current strength.

John comes down somewhere between my view that no one self-employed in the private sector should be forced to provide services that violate their religious beliefs and the activists who believe they should. He writes:

Currently, the jurisdictions most likely to prohibit sexual-orientation discrimination are those where such laws seem least needed; cities where rainbow banners far outnumber Confederate flags. But what about places where being openly gay is literally unsafe? There it’s much harder to rely on market forces and social pressure for ensuring equality.

How pervasive or intractable does discrimination need to be before we should invoke the long arm of the law to solve it? I don’t have a simple formula for answering that question. I’m wary of those who do.

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The YouGov-UK Poll

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This poll is getting lots of publicity, showing that when “Asked to plot themselves on a ‘sexuality scale’, 23% of British people choose something other than 100% heterosexual – and the figure rises to 49% among 18-24 year olds.”

One conclusion: “With each generation, people see their sexuality as less fixed in stone.”

Britain, like the rest of the Western capitalist world, has come a long way since the persecutions of countless gay men, including most famously Oscar Wilde and Alan Turing, who were just the tip of the “Victim” iceberg.

Then there’s the sad case of former PM Edward Heath.

More. YouGov-US: 31% of Americans under 30 say they are not 100% heterosexual, while 24% of people aged 30 to 44 say that they’re somewhere on the scale of bisexuality, compared to 8% or less of over-45s.

As in the UK findings, young Americans are far more likely to acknowledge same-sex attractions. The fear, paranoia and shame with which older generations treated any manifestation of same-sex desire is receding, more so in the UK but still dramatically noticeably here in the US.

Future generations will be psychologically healthier and happier as a result.

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Glimmers of Change for the GOP

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Added. During the GOP presidential debate, Ohio Gov. John Kasich earned applause for, basically, saying same-sex marriage is the law and we should love our gay kids. Reports Business Insider:

The crowd in Cleveland gave Kasich a loud round of applause. The overwhelming cheering was a noticeable contrast from just four years ago during another GOP primary debate…in which a crowd booed a gay soldier.

On the other hand, there’s Rick Santorum. But he’s fading away.

——————-

The Washington Blade reports that:

The Republican National Committee has nixed a pair of controversial anti-gay resolutions that were proposed for consideration during its summer meeting ahead of the first GOP 2016 presidential debate. … The first resolution, proposed by Dave Agema, urged schools with gay-inclusive sex education curricula to “also include the harmful physical aspects of the lifestyle.” Another measure, sponsored by Ross Little of Louisiana, sought to defy the U.S. Supreme Court marriage decision by urging Congress to pass legislation stripping federal courts of the ability to hear marriage cases and returning the issue to the states.

The Blade also noted:

Had the measures been adopted at the Cleveland gathering, it would have been the first official act of the Republican Party on marriage after the U.S. Supreme Court decision on gay nuptials and likely invoked consternation among LGBT advocates as the Republican Party seeks a more inclusive image.

Agema, the Blade reports, is:

the same RNC member who has repeatedly landed in hot water for making anti-gay, racist and anti-Muslim posts on Facebook. Republican National Committee Chair Reince Preibus and former Michigan Republican Party Chair Bobby Schostok have called on Agema to step down and the RNC has censured him, but no explicit mechanism exists to expel him from the RNC and he has remained in his post.

During recent presidential elections, the Republican platform has called for amending the U.S. Constitution to deny same-sex couples the right to marry. It remains to be seen if the GOP platform will again, post-Obergefell, call for restricting marriage equality. But the rejection of these resolutions by the RNC seems a good sign.

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Boy Scouts and Religious Freedom Exemption: Battle Awaits

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As anticipated, and at long last, the Boy Scouts of America have voted to allow openly gay men and lesbians to be adult employees and volunteer leaders. As the AP notes, however:

Several denominations that collectively sponsor close to half of all Scout units—including the Roman Catholic church, the Mormon church and the Southern Baptist Convention—have been apprehensive about ending the ban on gay adults.

The Boy Scouts of America’s top leaders have pledged to defend the right of any church-sponsored units to continue excluding gays as adult volunteers. But that assurance has not satisfied some conservative church leaders.

“It’s hard for me to believe, in the long term, that the Boy Scouts will allow religious groups to have the freedom to choose their own leaders,” said the Rev. Russell Moore, president of the Southern Baptist Convention’s Ethics & Religious Liberty Commission. “In recent years I have seen a definite cooling on the part of Baptist churches toward the Scouts,” Moore said. “This will probably bring that cooling to a freeze.”

While conservative religious leaders aren’t happy, LGBT activists aren’t overjoyed, either:

Stuart Upton, a lawyer for the LGBT-rights group Lambda Legal, questioned whether the BSA’s new policy to let church-sponsored units continue to exclude gay adults would be sustainable. “There will be a period of time where they’ll have some legal protection,” Upton said. “But that doesn’t mean the lawsuits won’t keep coming. … They will become increasingly marginalized from the direction society is going.”

Moreover, in a released statement headlined “Local Exemptions Will Allow Discrimination to Continue,” Chad Griffen, president of the Human Rights Campaign, lamented that “including an exemption for troops sponsored by religious organizations undermines and diminishes the historic nature of today’s decision.”

The conventional wisdom goes that if activists on the right and left are both unhappy, then it’s probably an appropriate, centrist solution. And that may be true here. Church-sponsored BSA troops are somewhat unique in that the Boy Scouts are not a self-defined religious organization, but troops are highly identified with, and reflect the characteristics of, their local sponsors.

It’s unclear how future lawsuits will turn out, but the public is unlikely to support LGBT activists on this one (polls show a majority favor religious exemptions from anti-discrimination law, even among those who support marriage equality).

More. The Church of Jesus Christ of Latter-day Saints released a statement saying “the admission of openly gay leaders is inconsistent with the doctrines of the Church and what have traditionally been the values of the Boy Scouts of America,” and that “When the leadership of the Church resumes its regular schedule of meetings in August, the century-long association with Scouting will need to be examined.”

Given that troops sponsored by the Mormon church will have a religious exemption allowing them to exclude gay adults, the response seems excessively churlish and suggests that the Mormons believe all scout troops must abide by Mormon values. That’s as polarizing, and totalistic, as the progressives who believe in no exemptions for religious organizations that sponsor troops.

Furthermore. This AP story reports that the Mormons may be looking for an opportunity to form their own worldwide scouting movement for boys, completely under church control. Similarly, the LDS does not sponsor Girl Scout troops and instead oversees its own Young Women’s program.

That’s a loss for Mormon youth, as one of the great benefits of scouting is the way it brings young people into contact with others from diverse backgrounds.

Also, via the Washington Post, Why Mormons are so devastated by the Boy Scout vote on gay leaders.

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Turning Victory to Defeat

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A new Associated Press-GfK poll, conducted July 9 to July 13—less than three weeks after the Supreme Court ruled states cannot ban same-sex marriage—showed 42 percent support same-sex marriage, down from the 48 percent who said so in an April poll.

Asked specifically about the Supreme Court ruling, 39 percent said they approve and 41 percent said they disapprove.

The AP reports:

“Overall, if there’s a conflict, a majority of those questioned think religious liberties should win out over gay rights, according to the poll. While 39 percent said it’s more important for the government to protect gay rights, 56 percent said protection of religious liberties should take precedence.”

This is the cultural landscape in which LGBT activist leaders, post-marriage victory, are declaring their number one objective is passage of a comprehensive LGBT civil rights statute that will force service providers with religious objections to perform creative services for same-sex weddings.

Under their progressive leadership, which views state coercion backed by the threat of force and punishment as the prime tool for achieving cultural aims, we might yet see a backlash that turns victory into defeat.

More. Via Walter Olson, whether churches could lose tax-exempt status for not embracing same-sex marriage. There are, fortunately, constitutional barriers, but for some progressives it’s the stuff of their dreams.

Finally, the Cato Institute’s Roger Pilon exlains why “A society that cannot tolerate differing views—and respect the live-and-let-live principle—will not long be free.”

And the Cato Institute’s Emily Ekins further elaborates:

Americans seem inclined to support this nuanced view that businesses should serve all customers regardless of sexual orientation, religion, race, gender, income, national origin, etc.—but that wedding-related businesses requiring owners’ direct participation in the wedding should not be forced to provide service against the owners’ religious beliefs….

Taken together, these polls suggest that a sizeable share of Americans think the state should not prohibit same-sex couples from getting married and that the state should not require wedding-related business owners with religious objections to provide services against their will.

Popular opinion isn’t always right; this time it’s spot on.

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