Kim Davis Aftermath

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.”

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.

Freedom Means Freedom for Everyone

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.

Francis Disappoints, Again

LGBT Catholics say the upcoming World Meeting of Families in Philadelphia, the world’s largest Catholic gathering of families and an event that Pope Francis will attend, is missing an opportunity by offering just one session on LGBT concerns.

I’d say so, given that at that single session:

Ron Belgau, editor of a website called Spiritual Friendship, is to speak, along with his mother, at a session titled “Always Consider the Person: Homosexuality in the Family.” He is gay and celibate.

The mindset of the Roman church is shown by Archibishop of Philadelphia Charles Joseph Chaput, who remarked that “We don’t want to provide a platform at the meeting for people to lobby for positions contrary to the life of our Church.”

The pope’s embrace of redistributive/regulatory economics and climate-change alarmism (or, more accurately, apocalypticalism) has won him applause from certain leftish constituencies. But its all of a piece with the church’s authoritarian and reactionary mindset.

Added: Yes, apocalypticalism. In 2009, ABC News reported, with deep seriousness, predictions that 2015 would see climate-catastrophe-based prices of $12.00 for a gallon of milk and $9.00 for a gallon for gasoline, if gas was available at all. Increase government control over the economy, now!

More. Via the Washington Post, LGBT groups don’t feel the love in Philadelphia:

Catholicism teaches that sexual relationships between unmarried people are immoral, and adds that sex between two people of the same gender is a “grave depravity” because it doesn’t biologically produce children. “Under no circumstances can they be approved,” church teaching says of gay relationships. However gay people are to be treated respectfully and not subject to “unjust discrimination.” Francis has emphasized dialogue and love, though his positions on sexuality and gender appear to remain fully orthodox.

Victory Ahead; Shadows Loom

Matt Welch writes at the libertarian magazine/website

Gay people and gay rights activists should be among the first to recognize the critical link between open-mindedness and ending discrimination. It’s difficult to fathom in this historic year of 2015, when the Supreme Court may be on the verge of legalizing gay marriage nationwide, but gay rights advocates were almost hopelessly outnumbered in living memory. For decades, just about the only glimmer of hope came not from courtrooms but in the arena of public debate. …

But as the longtime minority view [on gay marriage] tips into what is looking like a permanent majority . . . Too many activists are now emboldened by their newfound political power to compel obedience and hound heretics rather than continue their incredibly successful long-term efforts at persuasion.

Driving the Kleins [owners of Sweet Cakes by Melissa bakery] into bankruptcy seems an odd tactic for changing their minds. Unless the goal is no longer about opening hearts, but rather enforcing new social norms by making examples out of nonconformers. …

But openness is also a condition of mind and a habit of discourse. Abandoning it in the face of victory will create as yet unimagined self-inflicted defeats. If we want to keep “open-minded” as a compliment, we need to make sure we don’t replace one set of intolerant laws with another. And we had better nurture a culture that appreciates the opportunity to debate, rather than driving disfavored opinion into the closet.

This blogsite pays so much attention to the issue of government action/lawsuits/mob threats against small businesses that don’t wish to provide services to same-sex weddings, based on the owner’s traditional religious beliefs, because it may be a bellwether of the next great civil rights struggle in our country—the right to dissent from the majoritarian view of the progressive state, and the corresponding right to be left alone and not to be coerced, by threat of punishment, into activity that violates religious conscience.

The magazine Welch now edits, he points out, “was editorializing in favor of gay marriage as early as 1974,” so this is not an issue of gay rights opponents suddenly discovering liberal (in the traditional sense) values. It is, instead, a matter of being consistent in defense of classical liberal values.

As the Cato Institute’s David Boaz tells The Federalist:

… mainstream libertarians have been generally supportive of gay marriage and the right of private individuals not to be required to participate in ceremonies that offend them. Cato has filed amicus briefs in gay marriage cases, also filed an amicus brief in the Elaine photography case out in New Mexico, and also in the Hobby Lobby case. I don’t know if there’s been a case in Indiana that would be relevant. People at Cato have defended the right of private individuals—and even reasonable large businesses like Hobby Lobby—to not support policies or participate in ceremonies that are offensive to them. It seems to me that libertarians have defended liberty on both sides on those particular issues.

More. We’ve seen it all before: Pagans persecute Christians, then Christians gain control over the state and persecute pagans; Catholics persecute Protestants, then Protestants gain control and persecute Catholics; the old guard persecutes the revolutionaries, then the revolutionaries gain control and persecute the old guard. When will they ever learn?

Marriage Amendment Is Wrong, Defending Religious Freedom Isn’t

In the wake of the Supreme Court hearing oral arguments on same-sex marriage, Gov. Scott Walker, who seemed for a while to have accepted marriage equality in Wisconsin as the law so let’s move on, shifted ground and joined Ted Cruz in endorsing a constitutional amendment that would stop federal judges from finding a constitutional right to same-sex marriage.

“My hope is that the U.S. Supreme Court will [not rule in favor of same-sex marriage],” Walker said. “If they don’t, the only other viable option out there is to support a constitutional amendment which I would [support] believing not just in marriage being defined as one man, one woman, but I also believe in states rights. I believe that is an issue that appropriately belongs in the states.”

Endorsing amending the U.S. Constitution to stop marriage equality will put Walker beyond the political pale for center-right, libertarian-leaning Republicans and independents, without whom no Republican can win the general election. It’s not just morally wrong, it’s bad politics.

Progressives, however, are also expressing opprobrium toward Jeb Bush for noting concern that same-sex marriage might lead to forcing conservative clergy to perform same-sex marriages. Bush’s fear, dismissed flippantly by his critics, would have less credence if they hadn’t already been justified by a highly publicized instance of liberal officials trying to do this in the name of anti-discrimination (arguing that if ordained clergy run a wedding chapel instead of a church, they are subordinate to the state). That case fell apart, but not for want of trying.

And there was also this exchange during last week’s Supreme Court oral arguments, in which U.S. Solicitor General Donald Verrilli suggested that a private, religiously affiliated college could lose it’s tax-exempt status for not supporting same-sex marriage:

JUSTICE ALITO: Well,in the Bob Jones case, the Court held that a college was not entitled to tax¬exempt status if it opposed interracial marriage or interracial dating. So would the same apply to a university or a college if it opposed same-sex marriage?

GENERALVERRILLI: You know, I — I don’t think I can answer that question without knowing more specifics, but it’s certainly going to be an issue. I — I don’t deny that. I don’t deny that, Justice Alito. It is — it is going to be an issue.

As the Washington Blade reported, Bush also alluded to the cases of religiously conservative florists, caterers, and bakers being prosecuted for declining to provide services to same-sex weddings:

for Bush, finding “common ground” between opponents of same-sex marriage and gay and lesbian people seeking to marry is key. I think a country as open and big and tolerant and as this country ought to be able to find common ground on both of those fronts,” Bush said.

But the zealots of left and right won’t have any part of that.

More. From our comments, “Mary” writes, pertinently:

In all fairness, if 10 years ago someone had said that equal rights for gays would lead to a photographer being sued for not wanting to photograph a lesbian commitment ceremony wouldn’t you have called this a scare tactic? And when people argued that bakers, florists, and reception hall owners would have to cater to gay weddings or be sued for discrimination because “equal means equal” wasn’t it said that no one would be forced to have anything to do with gay weddings if they didn’t want to?

So why should we assume that tax exemption would never be removed from churches that don’t marry gay couples? Although I support SSM now, I do believe we need specific laws to protect religious freedom.

Indeed. And Hubert Humphrey famously said “I’ll eat my hat if this [the Civil Rights Act] leads to racial quotas.” One can today argue the merits of affirmative action race-based preferences and quotas, but they certainly did come about (with hard quotas, at least, subsequently scaled back by Supreme Court rulings).

Liberty and Religious Accommodation

James Kirchick asks whether religious-based opposition to same-sex marriage, or specifically, to providing services to a same-sex wedding, is always bigotry, as some blithely assert. He writes:

One reason [New York’s Marriage Equality Act] passed is that the act included a provision that prohibits state courts from penalizing religious institutions for refusing to recognize or sanctify gay marriages or providing services to same-sex weddings.

Should this protection be extended to closely held for-profit family businesses when New Yorkers use them to exercise their religious views? “Yes,” the U.S. Supreme Court seemed to say in the Hobby Lobby case, although that dealt with birth control.

The justices may someday be asked to extend Hobby Lobby to small businesses being pressed on same-sex weddings. In rejecting the idea that a ban on same-sex marriage can be only about prejudice, New York’s high court offered a template.

It led to gay marriage here while protecting religion.

But if you dismiss faith-based opposition to same-sex marriage as “bigotry,” than there is no room for accommodating the small number of service providers who, citing religious convictions, wish not to be forcibly coerced into facilitating same-sex weddings. In this situation, if you look at who is acting like the Grand Inquisitors, it’s not the service providers.

More. Hatefully humorous, and a sign (among many) of the backlash that seems to be brewing and which certain activists seem intent on courting (and no doubt would profit from, in several senses).

As many are coming to realize, with military service and marriage equality won (or nearly so), the fundraising machine needs new enemies. So rev up the culture war against religious dissenters.



“Either you have three friends who are LGBTQ or you pay a penalty equal to the ObamaCare penalty, proportionate to your income. So, if you fail to have ObamaCare and fail to have enough LGBTQ friends, you could pay the ObamaCare.”

Not a parody:

Republican legislators banned from Fargo coffee shop “Unless accompanied by a lesbian, gay, bisexual or transsexual, queer, intersex or asexual person.”

The Turning Tide

Our occasional co-blogger Walter Olson shared a different take on Indiana, Arkansas and the battles over their Religious Freedom Restoration Acts (RFRAs), via the New York Daily News. A few excerpts, but you should go and read the whole piece:

Even if you think, as I do, that the past week’s great gay rights war was 90% hype…one take-away is still a bit amazing: America’s big businesses have emerged as a hugely effective ally of gay rights.

That is a very big deal that will reshape this crucial cultural cause, and perhaps others, for years to come. …

On what stoked the controversy:

In some parallel universe, bills like Indiana’s could have been pitched with a pluralist and moderate appeal: Until quite recently, after all, RFRAs themselves were seen as something of a bipartisan progressive cause and the group of law professors and religious scholars active in the push for state RFRA bills includes more than a few moderates, liberals and libertarians who themselves favor same-sex marriage and gay rights laws.

In our actual universe, on the other hand, where perception is nine-tenths reality, the Indiana effort was seen as the pet project of hard-liners that the state’s business community didn’t care for and didn’t want to have seen as representing the state. …

Taking aim at Indiana’s hapless governor, Walter writes:

One of the most damaging viral images was that of a ceremony in which Mike Pence was seen signing the initial bill into law surrounded by figures circled and identified as long-time bitter opponents of gay rights. Pence himself floundered on TV when asked to defend the bill, unable to finesse the gap between the culture war themes that had helped fuel its passage at home and the more moderate arguments that might have swayed national viewers. …

But he also warns, quite correctly:

Outrage can blow up in unexpected ways. When a small-town Indiana pizzeria owner truthfully answered a reporter’s inquiry by saying she was happy to serve gay customers but would have qualms about catering a gay wedding, her mom-and-pop business got hit by a classic social-media pile-on that included fake Yelp reviews and even threats of violence. No sane business—especially a big one—would want to get within miles of such mob-driven ritual shaming.

It might be tricky, in fact, to keep getting the symbolic point across while not alienating the majority of the public that—according to most polls—in fact opposes fines and penalties for bakers, florists and photographers that hold religious objections to entering into gay-marriage celebrations. …

From my perspective, after gay marriage is secured nationwide (which the consensus holds is likely to happen with a Supreme Court ruling in June, although one never knows), I think the movement from “live and let live” with legal equality, toward an embrace of authoritarian political correctness intolerant of dissent, could become much worse within the LGBT activist world.

More. Law professor Jonathan Turley, via the Washington Post. He argues that in their rush to support same-sex rights, critics of religious freedom laws have been too quick to dismiss legitimate questions about free speech and expression. You think?

On the Religion Front

The United Methodist Church is facing a possible schism between those who support and oppose same-sex marriage, the Washington Post reports. One issue:

like much of Christianity, its growth today is in the developing world—particularly in Africa and the Philippines, where United Methodists tend to vote against gay equality.

A similar problem bedevils the Anglican Communion, although the U.S. Episcopal Church has the independence to be inclusive on its own, with a small number of congregations that have chosen to perpetuate traditional discrimination breaking away so as to align with African Anglican churches that prefer hate to the gospel of love.

Meanwhile, U.S. Reform Jewish rabbis have just installed their first openly lesbian leader. Orthodox Jewish congregations remain opposed to ordaining gay rabbis and marrying same-sex couples.

Religious denominations are and should be at liberty to pursue whatever principles of faith they like, even when their tenets collide with government policy or increasingly common views of what is right and just. Things get dicey when government gets entwined with the practice of faith, as when ordering religiously affiliated organizations to pay for abortifacient drugs, or not to discriminate in hiring against gay people.

Another interesting entanglement: should military chaplains from religiously traditionalist churches be stopped from telling service members their denomination’s views against homosexuality?

If the government is going to have military chaplains, I don’t think they should be censored. Also, I’m told service members are given access to a wide variety of chaplains at military bases, both Christian and non-Christian, and from conservative evangelicals to the more liberal protestant churches. Still, this shows how government entanglement with religious faiths can work to the detriment of both.

More. Obviously, in combat situations, there is not a choice among chaplains. And yes, chaplains can take part in nondenominational or cross-denominational services and counseling as well as ministering to service members who share their faith, depending on the circumstances. This particular instance, resulting in the chaplain facing the threat of dismissal, seems to have involved conversations in which a soldier asked the chaplain about his views and those of his church.

Update. Presbyterian Church (U.S.A.) recognizes same-sex marriage:

Pastors—traditionally known as “teaching elders”—have already been allowed to perform same-sex marriages in states where they’re legal since last June. The new amendment leaves the discretion of whether to conduct such ceremonies with individual ministers.

“There is nothing in the amendment to compel any teaching elder to conduct a wedding against his or her judgment,” the Rev. Gradye Parsons, the church’s stated clerk, or top ecclesiastical official, said Tuesday.

Seems like a reasonable step forward that allows same-sex couples to marry within the denomination while also respecting the rights of clergy who are not yet onboard.

The church earlier eliminated barriers for ordaining gays, reports USA Today, which says “The denomination is now the largest Protestant group to recognize same-sex marriage as Christian.”

More. The National Black Church Initiative, a coalition of 34,000 churches comprised of 15 denominations and 15.7 million African-Americans, has broken its fellowship with Presbyterian Church USA following its recent vote to approve same-sex marriage. How hatefully homophobic are some of these African-American churches? Take a look.