The polarizing conflict between religious liberty (here without the delegitimatizng “scare quotes” so ubiquitous in LGBT circles) and gay rights/LGBT anti-discrimination law was addressed by Jonathan Rauch, a past Independent Gay Forum contributing author, when he spoke at the University of Illinois Law School recently (viewable here via YouTube, about 40 minutes).
Rauch starts by noting that to understand where we are in the discussion of gay rights versus religious liberty, consider two bills now before Congress:
One is called the Equality Act. It would grant [LGBT] Americans…protection from housing, employment and public-accommodations discrimination under federal law, which is something that we lack at present. It’s championed by Democrats and liberals.
The other piece of legislation is called the First Amendment Defense Act, or FADA. It would pre-emptively shield all those people who object to same sex marriages or who choose to discriminate against same-sex marriages…whether on religious or moral grounds…from any federal sanction or disallowance of benefit…. It is championed, as you would imagine, by Republicans and conservatives.
Though coming at the question from opposite corners, the two bills have something in common: each tries to take all the marbles and leave the other side with nothing, or at least with as little as possible. The Equality Act includes a provision revoking any protection which religious objectors might enjoy under the [federal] Religious Freedom Restoration Act. The First Amendment Defense Act shields the objectors from discrimination while leaving gay people wholly unprotected from discrimination under federal law.
If these bills are opening positions in a negotiation, then what should ultimately happen is legislative bargaining leading to the obvious compromise: protections for gay people plus exemptions for religious objectors.
That, however, seems unlikely to happen because advocates on both sides aren’t interested in forging a compromise—which, Rauch notes, is “emblematic of an unfortunate development: an issue on which a few years ago there seemed to be reasonably good prospects for reasonable accommodations…has hardened into legal and political trench warfare.”
To which I’d add, the polarization/compromise-rejection serves those who don’t actually want a solution because they profit from permanent cultural warfare. And that’s because ongoing cultural war equals (1) big money flowing to advocacy groups and (2) hot-button issues that the political parties can use to fire-up their respective bases.
The United Methodist Church—the largest mainline Protestant denomination in the U.S. and the third largest U.S. denomination overall—ends its quadrennial general convention in Portland, Ore., later this week. As the Washington Post reports:
The focus has been on whether to change or keep the denomination’s rejection of homosexuality. But a broader question is up for a vote: What do the 13 million Methodists from Africa to Asia to America have in common? …
Delegates from dozens of countries will consider the possibility of full inclusion of LGBT people, the “agree to disagree” option, whether gay people can be ordained, the question of officiating at same-sex weddings, whether such weddings can be held in Methodist churches and whether the current Book of Discipline wording should remain.
Roughly half of the denomination’s members are from the U.S., and while it appears a majority of North American conference delegates support LGBT inclusion, 30% of the delegates come from Africa, “where Methodists tend to be much more conservative on issues of homosexuality,” the Post reports.
Of the three options (1) maintain the anti-LGBT prohibitions, (2) embrace LGBT inclusion, and (3) let difference countries/regions adopt their own policies, the last may be the best that can be hoped for, and indeed the right solution for a church so at odds with itself. But there’s a strong likelihood that the anti-gay contingents, with some support from conservative U.S. Methodists, will keep the prohibitions in place. We’ll see.
The conference is also dealing with four measures proposing the church divest its investments from Israeli companies, and last January the church’s pension fund removed five Israeli banks from its portfolio. If the conference maintains its anti-gay policies and extends its anti-Israeli policies, then U.S. members should seriously consider whether affiliating with a global church that shuns the light and embraces bigotry is where they wish to celebrate the Lord.
Update. They punted, voting to delay all consideration of gay-related proposals via a commission that will spend at least two years reviewing policy on the subject:
But global membership is moving in the conservative direction, and during the Conference the progressives were watching their many proposed measures advancing equality get voted down in subcommittees, while conservatives’ efforts to strengthen the rules were advancing. …
Yet several conservative United Methodists from Africa spoke Wednesday from the floor, demanding their chance to vote on measures aimed at shoring up the ban on gay life. Conservatives in the church have been pushing for trials and other punishment for United Methodist pastors who come out or who officiate at same-sex weddings.
The vote Wednesday night in Portland, Ore., came one day after news leaked that bishops and various leaders were meeting over a plan to separate.
I wish the U.S. church had voted to leave.
More. On a positive note, the anti-Israeli propositions also lost. I should have clarified that the anti-Israeli push came predominantly from U.S. progressives, who also were among those supporting the gay-inclusive resolutions—the same conundrum we see with the Presbyterians and other denominations where the progressive left is at odds with the conservative right, and fie on both.
The primates of the worldwide Anglican Communion on Jan. 14 suspended the Episcopal Church USA “from full participation in the life and work of the Anglican Communion” for a period of three years, to give the Episcopal Church time to recant its pro-gay ways.
The motion, presented to a gathering of archbishops in Canterbury Cathedral, was backed by the Global Anglican Future Conference (GAFCON), which consists of conservative Anglican bishops and leaders working “to guard and proclaim the unchanging, transforming Gospel through biblically faithful preaching.”
To translate, the issue was the Episcopal Church’s ordination of gay clergy and its policy of allowing churches to perform and sanction same-sex marriages.
The anti-gay Anglicans include a small number of U.S. and U.K. “high church” or Anglo-Catholic traditionalists who seek to be more reactionary on matters theological than Rome. But the main thrust for disciplining the U.S. church comes from the vast majority of Anglicans who reside outside the West. Specifically, African bishops, representing 60 percent of Anglicans worldwide, resist Western tolerance of homosexuality, to put it mildly.
As David Boaz writes in Newsweek, there was fear that archbishops from six African countries—Uganda, Kenya, Nigeria, South Sudan, Rwanda and the Democratic Republic of the Congo—might have walked out if the archbishop of Canterbury, the symbolic head of the worldwide Anglican Communion, didn’t sanction the U.S. Episcopal Church for consecrating gay bishops and allowing Episcopal churches to perform same-sex weddings. Boaz praises the Anglican archbishop of South Africa, who has urged his church to abandon its “practices of discrimination,” which distinguishes South Africa on a continent where virulent homophobia is treated as gospel. (Despite racial oppression, South Africa is a country where Western enlightenment values always had a foothold, Boaz notes, which was significant in defeating Apartheid.)
In contrast, let’s look at some of the churches that demanded the U.S. Episcopal Church be sanctioned. The Anglican church in Uganda has no problem with draconian laws persecuting gay people:
In response to the Anglican Church of Canada’s intervention, Bishop Joseph Abura of the Karamoja Diocese wrote an editorial saying, “Ugandan Parliament, the watch dog of our laws, please go ahead and put the anti-Gay laws in place. It is then that we become truly accountable to our young and to this country, not to Canada or England. We are in charge!” Although the Anglican Church in Uganda opposes the death penalty, its archbishop, Henry Luke Orombi, did not take a position on the bill.
Some prelates of the Rwanda church joined in their country’s tribal genocide:
Tutsis were murdered en masse in Rwanda in part because they flocked to places of worship for refuge…. In fact, both the Catholic and Anglican churches in Rwanda were deeply complicit in the genocide. … Astonishingly, church figures across Rwanda played a leading role in legitimizing and even inflicting genocidal killing.
These are the churches that anti-gay American Anglicans have chosen to affiliate themselves with.
The United Methodist Church—the nation’s largest mainline denomination—faces a similar issue as it remains officially opposed to same-sex marriage and defrocks it’s ministers who perform same-sex weddings. Here, too:
Many observers—both inside and outside of the [Methodist] church—note that the global nature of the church, in particular its growth in Africa, where homosexuality is often still taboo, is a major hurdle for those hoping to change church policy.
Let the churches of the light rise up to the Light; and those that present their hatred as righteousness dwell in the heart of darkness together.
More. I say, vote yes for independency, as Americans did in 1776.
Also, the Pilgrims, who were Separatists and not Puritans (despite the common misperception) had it right. They wanted to separate from the Anglican Church and believed attempting to “purify” it would only corrupt them.
Furthermore. Before the Jan. 14 vote, Episcopal Church Presiding Bishop Michael B. Curry told the primates gathering in Canterbury:
Many of us have committed ourselves and our church to being ‘a house of prayer for all people,’ as the Bible says, when all are truly welcome. Our commitment to be an inclusive church is not based on a social theory or capitulation to the ways of the culture, but on our belief that the outstretched arms of Jesus on the cross are a sign of the very love of God reaching out to us all.
I also like this thought. Catherine M Wallace, a cultural historian and literary theologian, writes:
Like Christians of the past, we are to engage the tradition with the best critical tools and broadest moral sensitivity available to us, trusting that God is with us and within us, calling us always to courage and to compassion, calling us to be bread for a starving world. …
For some people, religion must be rigid, absolutist and judgmental in order to count as “religion.” That need for self-righteous absolutes is perhaps the deepest anxiety of all.
South Carolina Gov. Nikki Haley delivered the GOP response to President Obama’s final State of the Union address Wednesday night. While Donald Trump and the trumpians took offense at her call for “welcoming properly vetted legal immigrants, regardless of their race or religion. Just like we have for centuries,” it was her other remarks on religion that riled up social conservatives and won her few friends among LGBT progressives.
Haley said of the GOP, “We would respect differences in modern families, but we would also insist on respect for religious liberty as a cornerstone of our democracy.”
For many of a libertarian-leaning disposition, and among a wide swath of political moderates, those remarks seem like common sense. But the response from other quarters was blistering. “Even the terminology ‘modern families’ evokes the ABC sitcom featuring a homosexual couple raising a child,” huffed Lifesite.com, while religious far right radio host Bryan Fischer ripped Haley for embracing “sodomy-based marriage and the entire homosexual agenda,” Right-Wing Watch relates.
But LGBT progressives aren’t likely to be won over. Right-Wing Watch, for instance, has complained that “framing opposition to LGBT equality, abortion and contraception as religious liberty issues is a core strategy of right-wing culture.”
Gay Republicans welcomed Haley’s remarks. “I was far more impressed by Gov. Nikki Haley and her call to ‘respect differences in modern families’ while at the same time balancing that respect with a concern for religious liberty—a position Log Cabin Republicans has long advocated,” said national Log Cabin Republicans President Gregory Angelo, quoted by PrideSource.com. “It was refreshing to see a Republican explicitly acknowledge that on a major national stage,” he added.
It’s not easy to defend religious liberty for private individuals, however, when religious conservatives insist on making the issue about government civil servants. As was widely reported, Kentucky clerk Kim Davis attended the State of the Union address as a guest of Ohio Republican Rep. Jim Jordan. Davis spent a few nights behind bars for refusing to let anyone in the Rowan County clerk’s office issues marriage licenses to same-sex couples, citing her Christian beliefs.
As I’ve noted before, government officials are responsible for following the law of the land, even when doing so is at odds with their own religious beliefs. They are public servants, not private, self-employed service providers.
The religious right remains committed to government discrimination against gay people in general, and married same-sex couples in particular. The progressive left remains committed to using government to force independent business owners with faith-based objections to provide services to same-sex weddings, as no religious dissent against government coercion of the citizenry is tolerable. Authoritarians of left and right feed off each other in a symbiotic relationship that keeps the culture war roiling.
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.
Many on the left who celebrate Pope Francis’s hostility toward capitalism and support for climate apocalypticalism also claim he is moving the Roman church forward on gay issues. Many have cited his 2013 remark “Who am I to judge” as if he were referring to gay people in general. He was not; Francis was specifically asked about celibate gay priests, and the remark, in context, implies that if the priests are celibate, than who is he to judge them because of their sexual orientation, which they are (supposedly) not acting on.
When Francis said “We cannot insist only on issues related to abortion, gay marriage and the use of contraceptive methods,” he meant that he was just as, or more, concerned that his church focus on climate hysteria and antagonism toward market-driven economic development.
News reports have said Francis’s remarks to Congress offered something to liberals (anti-development and a response to climate change that demands more government control over, well, everything) and to conservatives, especially this (via USA Today):
“I cannot hide my concern for the family, which is threatened, perhaps as never before, from within and without,” Francis said. “Fundamental relationships are being called into question, as is the very basis of marriage and the family. I can only reiterate the importance and, above all, the richness and the beauty of family life.”
Yes, Francis offered something for liberals and conservatives, but little for libertarians.
More. Via Reuters:
Pope Francis said on Monday government officials have a “human right” to refuse to discharge a duty, such as issuing marriage licenses to homosexuals….
Maybe The Advocate would like to rescind its 2013 Person of the Year.
Furthermore. He’s actually even worse than I suspected: Vatican Confirms Private Meeting Between Pope Francis and Kentucky Clerk Kim Davis, in which he encouraged her to “stay strong” in her intransigence. Time for the LGBT Pope-defenders to apologize.
And more. No, it doesn’t change things that Francis also agreed to meet in Washington with a gay former student and the student’s long-time boyfriend (and other family members), and was gracious. As CNN also reports, “the Vatican has refused to recognize France’s ambassador to the Holy See, Laurent Stefanini, who is openly gay. And Francis has shown little inclination to adjust church doctrine on sexuality.” That’s the context in which he then met with Kim Davis; that’s what matters.
And then this: Pope asserts marriage is forever at start of family meeting. But hey, he’s anti-capitalism, has a clear soft spot for socialism, and thinks climate apocalypse is upon us for the sins of industrialization, which makes him heroic in the eyes of the left.
“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.”
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.
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.