IGF CultureWatch

I deeply appreciate the discussion in the comments on my last post.  The tangled relationship between anti-discrimination laws and religion is a subject that is worth some real thinking.

Some people are wrestling with how selling a cake got to be a constitutionally (and statutorily) protected “exercise of religion.”  There’s a reason this is confusing.  Religious believers themselves have never really been able to articulate the connection.

I think the problem began back in the 1990s, when religious landlords first began claiming they were exempt from state laws prohibiting marital status discrimination.  In 1996, I represented a heterosexual woman in the first California Supreme Court case to deal with the exemption (Smith v FEHC).  The religious landlady objected to unmarried couples living together, but California law prohibited marital status discrimination in housing.  The landlady’s claim was that by renting her property to people who were obviously sinning (there was no proof of any sexual activity, and she never tried to provide any, but the court accepted the obvious implications), she was “facilitating” their sin.  And in her mind, this was, itself a sin.  So the law was forcing her into participating in the sin her tenants were committing.

This was a novel idea.  Previously, court cases had tended to focus on things that a religion mandated or prohibited (such as working on the sabbath, forced public schooling, etc.).  But in Smith, the landlady’s claim of “facilitating” the sins of others by engaging in commercial activity was neither.  While she provided testimony that one branch of her religion (Presbyterian) thought that facilitating the sins of others was, itself, a sin, another, much larger branch of the same religion disagreed and felt that abiding by general laws like this implicated no moral condemnation.

The problem is that courts can’t go around deciding contested theological questions.  They must exercise an almost complete acceptance of any religious belief, as long as it is sincerely held (which Mrs. Smith’s was).  The U.S. Supreme Court has been very clear about this:  A religious belief “. . . need not be acceptable, logical, consistent, or comprehensible to others in order to merit [free exercise] protection.”

I argued that the protection of the “exercise of religion” ought to be cabined by something.  While courts must defer to religious beliefs, they can examine actions that are in conflict with laws.  Renting apartments would never have been understood by the framers as the kind of exercise of religion they had in mind.

That argument was shot down in less than a paragraph, and that’s probably the right answer.   The problem I saw in the commercial world of religious believers picking and choosing which sins they subjectively felt they were “facilitating” has clearly come to pass.  And there’s little doubt that this will be deployed by individual believers without much theological consistency or precision.  But the role of courts is and should be limited whenever religious issues are being fought over.

There will always be individuals who will distort and mishandle their religion.  But the danger of the government second-guessing religious believers is a far more profound concern.  This will place a burden on lesbians and gay men in some — maybe a lot — of places in the country.  But in the world today, they will not only have options, they will have allies.  This is no small fact.

Julian Sanchez has the best analysis of the new round of religious freedom bills, and helpfully borrows Reason magazine’s description of Arizona’s attempt as a “homophobic stunt,” which is really all the rhetorical kicking it deserves.

Sanchez distinguishes among different kinds of discrimination, and persuasively argues that what African Americans went through in the 1960s is different from what lesbians and gay men are going through today.  There are similarities between these discriminations, but they are not identical.  And the differences require some different thinking about government solutions.

There is one quibble, though, which I think is worth some attention.  After looking at our nation’s legacy of slavery and other laws and practices embodying naked racist assumptions, Sanchez moves on to sexual orientation:

Sexual orientation, unlike race, is not transmitted across generations, which means a gay person born in 1980 is not starting from a position of disadvantage that can be traced to a legacy of homophobic laws in the same way that a black person born in 1980 is likely to be disadvantaged by centuries of government-enforced racism.

This misses something essential.

Laws criminalizing sodomy were virtually universal in America, embedded in our legal structure in ways that manifested – for homosexuals — far outside the criminal realm.  For most of American history, homosexuals could have no identity as a group to lobby for different laws, no ability to form meaningful relationships (much less marriages), no lawful ability even to drink or dance together in a bar.  Few knew there were other homosexuals to even meet, and trying to find out meant the risk of imprisonment.  It was not until the 1960s that gay groups could freely send political magazines to one another through the mail without concern about exposure or prosecution.

Those generations that African Americans came from provided at least the comfort of family and identity that was inaccessible to nearly all homosexuals.  The closet was a refuge, but had its own repercussions.  No ordinary life can be lived entirely in private.  For homosexuals, simply to function day-to-day required some level of denial, and the fabrication of an appearance of heterosexuality.

This is certainly different from the regime of racism in American law and culture.  But in its own way the centrality of inauthenticity was no small psychological disadvantage, and it was borne entirely internally by each isolated person.  Lesbians and gay men spent generations as an invisible population with an invisible burden.  And this lasted well into the present.

With the sodomy laws gone, we may soon be able to retire the closet as well.  Like racism, the homophobia won’t go away, but its practitioners will place themselves on society’s fringes, for whatever satisfaction that provides them.

A critical part of Sanchez’s argument is that this is already where most homophobes are, and he’s not wrong.  Like many of us who are of a certain age, I don’t think the homophobes were prepared for how quickly the world could change around us all.

It did, and if we must still have laws, Sanchez is right that they should take the facts of that world into account.  But we should also understand history as correctly as we can.  Laws originally written in a world that had no open lesbians and gay men can be far more damaging to homosexuals than laws drafted today designed to flaunt what homophobia still exists.

The previous thread on religious exemptions to anti-discrimination laws has gotten way too long, so I’m opening a new post. I don’t always agree with Andrew Sullivan, but he’s got this one absolutely right:

I favor maximal liberty in these cases. The idea that you should respond to a hurtful refusal to bake a wedding cake by suing the bakers is a real stretch to me.

Yes, they may simply be homophobic, rather than attached to a coherent religious worldview. But so what? There are plenty of non-homophobic bakers in Arizona. If we decide that our only response to discrimination is a lawsuit, we gays are ratcheting up a culture war we would do better to leave alone. We run the risk of becoming just as intolerant as the anti-gay bigots, if we seek to coerce people into tolerance. If we value our freedom as gay people in living our lives the way we wish, we should defend that same freedom to sincere religious believers and also, yes, to bigots and haters. You do not conquer intolerance with intolerance. As a gay Christian, I’m particularly horrified by the attempt to force anyone to do anything they really feel violates their conscience, sense of self, or even just comfort.

More. And Julian Sanchez blogs, thoughtfully:

Unlike most of my friends, I do not find it self evident that the “liberty interest” invoked by religious bigots is some kind of absurd sham worthy of mention only in derisive scare quotes. And I find it a bit disturbing that many of them seem to assume that if any anti-discrimination laws protecting any class of Americans have ever been justified, the weight of that interest has effectively been reduced to zero, and may be ignored for all future purposes. Having decided it was OK to forbid motels from turning away African Americans in 1964, in other words, many seem to take it as already settled that there’s no possible objection to compelling a photographer to work a gay wedding…

The point is that treating private discrimination as either a categorical wrong committed by troglodytes with no liberty interests meriting consideration or an utterly inviolable right of conscience, divorced from either historical context or practical consequence, seems like a stupid way to approach the issue. If there are still enough hardcore bigots to justify restricting their expressive association in the economic domain—or in subsets of that domain—then I hope their numbers soon dwindle to the point where those restrictions become unnecessary. But at some point, I would hope we can at least agree in principle, they become a sufficiently irrelevant minority that we are not entitled to inflict legal penalties strictly as a means of signaling our superior enlightenment and symbolic disapproval.

And another fine commentary, of the likes which you won’t see in the LGBT lockstep media. Ross Douthat writes in the New York Times:

But there’s another possibility, in which the oft-invoked analogy between opposition to gay marriage and support for segregation in the 1960s South is pushed to its logical public-policy conclusion. In this scenario, the unwilling photographer or caterer would be treated like the proprietor of a segregated lunch counter, and face fines or lose his business — which is the intent of recent legal actions against a wedding photographer in New Mexico, a florist in Washington State, and a baker in Colorado. …

In the past, this constant-pressure scenario has seemed the less-likely one, since Americans are better at agreeing to disagree than the culture war would suggest. But it feels a little bit more likely after last week’s “debate” in Arizona, over a bill that was designed to clarify whether existing religious freedom protections can be invoked by defendants like the florist or the photographer.

If you don’t recognize my description of the bill, then you probably followed the press coverage, which was mendacious and hysterical — evincing no familiarity with the legal issues, and endlessly parroting the line that the bill would institute “Jim Crow” for gays.

For a great many on the LGBT left, individual freedom of conscience is now a despised notion, and no one dare question the view that forcing religiously conservative business owners (who are self-employed, in the above examples) to provide services that celebrate gay weddings is anything but a wonderful progressive thing. I can’t think of anything that better highlights the authoritarianism that lurks not far beneath the surface of the leftwing “progressive,” bigger and more controlling government is always better, worldview.

Furthermore. As Sheldon Richman writes: “If we are truly to embrace freedom of association, logically we must also embrace freedom of nonassociation. The test of one’s commitment to freedom of association, like freedom of speech, is whether one sticks by it even when the content repulses.”

Many of these state legislative proposals would go too far in granting religious exemptions, for instance by allowing government employees to deny their government services to same-sex couples.

According to a Get Equal press release:

Kansas House Bill 2453 (HB 2453) would have made it perfectly legal for private businesses and public employees to refuse service to anyone based on an individual’s “sincerely-held religious beliefs.” As a result, it would have given permission for a firefighter to refuse to extinguish a fire ravaging a gay couple’s home, or a police officer to refuse to help a Hindu mother, or a restaurant owner to refuse to serve a multi-racial family—all under the guise of “religious beliefs.”

But these measures wouldn’t be coming up, including one likely to become law in Arizona, if LGBT activists didn’t think it was a great idea to sue (or request that governments initiate lawsuits against) self-employed photographers, florists and bakers for not wanting to accept assignments celebrating same-sex weddings, such as decorating a wedding hall, or baking a cake with two grooms atop. That’s a small subset of activities that involve artistic or expressive services tied to same-sex marriage, and not equivalent to refusing service in a shop, say, to a gay couple.

I’ve addressed this topic often before (for instance, here and here) because I strongly believe that the activists’ tactics are a stark affront to personal liberty, a charge we usually are able to level at our opponents. But as in the past, this is an argument that statist progressives simply dismiss as if it is of no consequence. For them, it’s just a matter of whose got the power.

More. It helps to understand what proponents of these measures actually think, in contrast to the knee-jerk demonization that’s all over LGBT media right now. From National Review, Kevin D. Williamson makes the case for “religious freedom for the butcher and baker, not just the bishop.” Can’t say I disagree.

(But wait, If people are allowed to make these decisions for themselves, there will be ANARCHY! Sorry, I forgot. The state, under enlightened liberalism, always knows best, doesn’t it.)

I don’t support the Arizona measure, but I do believe certain activists have made it a point to find and force the tiny number of religiously conservative service providers who view same-sex weddings as objectionable, on religious grounds, to nevertheless provide services that celebrate their weddings. And this is the reaction: you reap what you sow. I also believe much of the response to these measures is political hysteria, as discussed here.

Still more. Jason Kuznicki posts on his facebook page:

I’m just vastly less worried by these sorts of laws than many others, I guess. It’s not the new Jim Crow. It’s a few dead-enders passing a largely symbolic law. These laws’ main effect will be to bankrupt a small number of businesses, who will make themselves into pariahs. As applied to state workers, they are clearly unconstitutional if Romer is applied.

That’s how I feel, too.

Furthermore. It now looks like Arizona’s GOP Gov. Jane Brewer will veto the measure [yes, vetoed on 2/26], as even some Republican legislators who voted for it have changed their minds in the wake of a massive media blitz that defined the legislation as a pro-gay discrimination bill (with apparently unlimited scope!) and not a religious-conscience exemption bill.

Walter Olson shares his thoughts on the Arizona measure:

To confess my biases, as a general matter I like the idea of affording wider religious-liberty defenses in most anti-discrimination statutes applying to private actors. At the same time, doing it this way—by pushing out the boundaries of RFRA to change the playing field of private litigation at one stroke, rather than pause for a debate about how best to address multiple areas and situations—strikes me as fairly sure to generate unintended consequences and unexpected results.

His Cato colleague Ilya Shapiro differs somewhat:

While governments have the duty to treat everyone equally under the law, private individuals should be able to make their own decisions on whom to do business with and how – on religious or any other grounds. Those who disagree can take their custom elsewhere and encourage others to do the same.

As this Washington Post map shows, the world is divided on legal rights for gay people. And lately, in Russia, India, Uganda and Nigeria, things have gotten much worse, as those nations and others pass legislation that in varying degrees deny gay people liberty, or even life.

At the same time, marriage equality and gay inclusion is sprinting forward in the developed Western world. As a tangent, Walter Olson writes about the advances by gays in conservative political parties in the West.

On October 10, 1972, the U.S. Supreme Court issued its first formal thinking on whether same-sex marriage can be prohibited under the constitution.  Two Minnesota students applied for a marriage license in Minneapolis and were denied, and the state supreme court upheld the state’s law.  The couple asked the U.S. Supreme Court for review, and the court waved them away.  Its reasoning in Baker v. Nelson was stated in a single sentence: “The appeal is dismissed for want of a substantial federal question.”

Forty-two years on, courts are deciding that, not only is there a substantial federal question, but that there are several.  Whether it is equal protection for same-sex couples, or a fundamental right to marry that gays, too, can claim, or even discrimination based on gender, courts are clear that there is a question under the constitution about how the law treats the relationships of same-sex couples.  Twelve federal court decisions in the last year alone have addressed this question, and all twelve have ruled that discriminatory marriage laws violate the constitution.

Baker‘s rebuff of an entirely respectable legal theory is still on the books.  Like the court’s casual insult in Bowers v. Hardwick that a constitutional claim to protection against discriminatory criminal laws was “at best, facetious,” the court articulates the prejudices of its time if those prejudices are still common enough to be unrecognizable as belittlement.

That facetious claim later became the law in Lawrence v. Texas, and the substantial federal question the Baker court could not see is now pretty obvious to anyone.  Which is not to say that everyone agrees on what the constitutional answer should be.  But progress, like prejudice, can be hidden in plain sight.  If you realize that a little over forty years ago the highest court in the land could not imagine that gays had a plausible reason to complain about laws that prohibited them from marrying, you can better understand the barriers that this movement has overcome.

 

And the streak continues, as a federal judge in Kentucky, recommended by Sen. Mitch McConnell and appointed by George H.W. Bush, rules the bluegrass state must recognize same-sex marriages. Let’s note it was Vaughn Walker, another federal judge appointed by George H.W. Bush [corrected], who struck down California’s Prop. 8.

Also in February, Nevada’s Republican governor, Brian Sandoval, and attorney general announced that the state would no longer defend its 2002 ban on same-sex marriage in federal court.

And, of course, Supreme Court Justice Anthony Kennedy, author of numerous pro-gay-equality rulings, including the high court’s decision overturning key portions of the Defense of Marriage Act, was a Reagan appointee. This is pointed out because the din of the “one party is all we need and it starts with a ‘D'” crowd is sometimes deafening.

Meanwhile, in another victory, an Obama-appointed federal judge struck down Virginia’s ban on same-sex marriage, in what conservative (and not always gay friendly) site Breitbart termed “an historic ruling with special resonance on Valentine’s Day. Except the history of the historic ruling isn’t exactly up to par: Judge Arenda Wright Allen claimed the Constitution declares that ‘all men are created equal,’ which is, instead, the first line of the Declaration of Independence.”

Given the importance of Virginia and its history (with Loving vs. Virginia leading to the overthrow of state bans on mixed-race marriages), a legally literate ruling from the old dominion state would have been even more welcome.

Update. Judge Allen’s decison has now been amended. I don’t agree this was just an editing error; the Declaration inspires us, but court rulings must be grounded in the law and, ultimately, the Constitution.

More. An optimistic analysis, via Slate, says “It’s Over.” We’ll see.

Furthermore. Back in 2010, David Boaz noted (paraphrasing a report in The Atlantic by Josh Green):

…the federal judge in Boston who struck down a significant portion of the Defense of Marriage Act, ruling that it denied gay and lesbian couples the federal benefits afforded to straight couples, was appointed to the bench by President Richard Nixon. And the chief judge of the Iowa Supreme Court who wrote the unanimous decision striking down that state’s marriage ban was appointed by Republican governor Terry Branstad, who was just renominated for governor by Iowa Republican voters.

We’d only need to support one party if the legislature and judiciary also drew only from one party. That might be the political ideal for some, but it certainly shouldn’t be ours.

The Wall Street Journal reports:

Carl DeMaio is one of three openly gay Republicans running for Congress this year, and he would be at least the third to serve in the House if he wins. But Mr. DeMaio on Thursday will take a step that none of them has, airing a campaign ad that features a shot of him with his same-sex partner.

The clips are brief: A shot of Mr. DeMaio holding hands with his partner, Johnathan Hale, as they march in a gay pride parade in 2012, followed by a clip of the San Diego candidate waving a rainbow flag that symbolizes the gay-rights movement.

The story goes on to note:

Mr. DeMaio, who presents himself as a “new generation Republican,” isn’t a long shot trying to make a splash. He is one of the party’s top challengers this year as it tries to unseat Democratic Rep. Scott Peters. Although other Republicans are running for the seat, Majority Leader Eric Cantor (R., Va.) has given Mr. DeMaio $10,000, and Majority Whip Kevin McCarthy (R., Calif.) contributed $5,000. Conservative Georgia Rep. Tom Price kicked in $1,000.

In addition to Mr. DeMaio, two other openly gay Republicans are trying to unseat incumbent Democrats in the House: Dan Innis in New Hampshire and Richard Tisei in Massachusetts.

It’s easy enough to focus on the troglodytes in the GOP, but to pretend that nothing has changed, or can change, is rank left-liberal partisanship. It’s what too many LGBT progressives hope the situation is—that would be the activists who opposed DeMaio’s run for San Diego mayor, which he then narrowly lost to progressive fav Bob Filner, who subsequently resigned after being exposed as a serial sexual harasser.

LGBT progressives also worked to defeat Richard Tisei in his previous run for Congress (another narrow loss by an openly gay Republican).

As I’ve said before, openly gay and gay-supportive Republicans are LGBT progressives’ worst nightmare.

More. James Kirchick reports:

Moreover, it’s not just social conservatives standing in the way of the gay Republican ascendance, but the progressive left as well. “If anything, the blowback has come from liberal Democrats,” DeMaio says when asked about how his sexuality has impacted his political career. “They are afraid this message could take hold and could allow Republicans to be more effective in advancing fiscal and economic reforms that they oppose.”

DeMaio and Hale were booed at the very 2012 gay pride parade featured in his campaign video—not by anti-gay protesters, but by attendees. That same year, a group deceptively named “Conservatives for Gay Rights Supporting Carl DeMaio for Mayor 2012”—paid for “push poll” robocalls in which DeMaio’s homosexuality was put front and center. The group also paid for pamphlets featuring pictures of DeMaio hugging another man and standing alongside a drag queen, stating, “We conservatives know that liberty means that someone can pick a partner of their choice. We commend Carl on his conservative policies and exercising his liberties.”

Not until after the election—ultimately won by former Democratic Congressman Bob Filner, who resigned last August facing multiple accusations of sexual harassment—was it revealed that Democratic supporters of Filner had funded the shadowy group.

Professional sports are the last bastions of gay social exclusion in the U.S., at least in terms of popular culture. There are currently no openly gay professional athletes in the four major commercial sports (baseball, football, basketball and hockey). However, that could be changing. As the Washington Post reports:

On Sunday, University of Missouri defensive end Michael Sam was rated as the 90th-best prospect in May’s National Football League draft. The next morning, the 24-year-old all-American had slipped to No. 160. Only one thing had changed: On Sunday night, Sam announced he is gay. …

Patrick Crayton, a veteran wide receiver who spent the 2013 preseason with the New Orleans Saints, tweeted Sunday night that Sam should “stay in the closet.” Jonathan Vilma, a Saints linebacker, said during an NFL Network interview last week that he had concerns about showering and dressing with a gay teammate nearby.

As another WaPo piece put it, Sam “might be arrested in Vladimir Putin’s Russia just for stepping on a scale.”

The magnitude of social change toward gay people in the developed Western world (Europe, America/Canada, Australia/New Zealand), evidenced by the acceptance of marriage equality, highlights professional sports as one of the last holdouts (along, of course, with conservative religious denominations). But football, like the Boy Scouts, is or ought to be embracing of all, since it’s viewed as part of essential Americana. Challenging and overcoming that remaining bastion is now just a matter of time.

More. Frank Bruni writes: “A news flash for every straight man out there: You’ve been naked in front of a gay man.”

Furthermore. This is inspiring.

Plus, an all-too-true comparison via Instapundit.