Category Archives: Gay Rights

Brace for Blowback…

Or was that Brownback? As in retrograde Governor of Kansas?

According to AP,

Brownback rescinded an executive order issued in August 2007 by then-Gov. Kathleen Sebelius barring discrimination based on sexual orientation or gender identity. The order applied to hiring and employment decisions by agencies under the governor’s direct control and required them to create anti-harassment policies as well.

 Brownback has defended his state’s constitutional ban on same-sex marriage,  which was recently invalidated by the federal courts. Apparently, this was his “I’ll show you” revenge.

At the same time he rescinded the order, which he criticized as “unilateral” (I think Executive Orders are “unilateral” by definition…) Brownback issued a new order reaffirming the state’s commitment to prohibit discrimination based on race, color, ethnicity, national origin, gender or religion. In other words, Kansans shouldn’t pick on people unless they’re gay.

“This executive order ensures that state employees enjoy the same civil rights as all Kansans without creating additional ‘protected classes’ as the previous order did,” Brownback said in a brief statement. “Any such expansion of ‘protected classes’ should be done by the Legislature and not through unilateral action.”…

Tom Witt, executive director of Equality Kansas, the state’s leading gay-rights group, said the jobs of hundreds of gay, lesbian and transgendered workers are now at risk, after they’ve spent nearly a decade believing they were safe on the job after disclosing their orientation or gender identity.

Two steps forward (aka same-sex marriage), one step back.

Kansas should be ashamed.

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Asking the Wrong Question

Yesterday, I posted about Roy Moore and Alabama’s resistance to same-sex marriage, and a commenter took the federal courts to task, asserting that they’d exceeded their authority by invalidating “the will of the people.”

The evidence of over-reach? Nowhere does the Constitution talk about same-sex marriage.

This is an argument that makes my head explode, because it betrays one of the most fundamental misunderstandings of our legal system.

Of course there’s nothing in the Constitution about same-sex marriage. There’s nothing in it about any kind of marriage. Or about the right to travel, or practice a profession, or numerous other rights it protects. That’s because the Constitution is not the source of our rights.

The Founders were persuaded by Enlightenment philosophers like Hobbes and Locke that humans are born with “natural rights.” We have those rights by virtue of being human (or, if you are religious, because we were “endowed” with them by a creator). The job of government, according to Hobbes, was to protect those natural rights and our individual liberty; Locke agreed, writing that government needed to be limited so that state power would not be used to infringe our natural rights and liberties.

The Bill of Rights doesn’t grant rights; it limits government. Even when that government is expressing “the will of the people”–or as the Founder’s might have put it, the “passions of the majority.”

If someone wants to argue that there is no “natural right” to choose your own marriage partner–that the right to live your life in accordance with your own conception of morality and with fidelity to your deepest identity is not a human right–I’ll disagree strongly, but that would be the appropriate argument.

Triumphant declarations that you read the text of the Constitution and didn’t find a “right”  to same-sex marriage simply tells the world that you are profoundly ignorant of the purpose of our Constitution and the theory of government upon which it was based.

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Documenting History

Today is Martin Luther King Day–an appropriate time to think about civil rights and the importance of remembering our history, not just for African-Americans, but for all of us.

It is profoundly depressing to initiate a discussion with undergraduate students and discover that they know very little about American history and government. It’s particularly galling when–as happened again just last week– African-American students look at me blankly when I ask what the 13th Amendment did, and then proceed to demonstrate only the foggiest familiarity with the civil rights movement.

There is a lesson here for the gay community: while the community embraces the sea change in attitudes toward LGBT folks (even in Indiana, Mike Delph and Scott Schneider notwithstanding), that change should not mean losing touch with a rich, albeit difficult, history.

Fortunately, the Indiana Historical Society understands the need to document and safeguard that history. The Society has launched The Indiana LGBT Collecting Initiative, to “collect, preserve and make accessible archival material that documents the rich history, tradition and culture of the gay community in Indiana.”

The first phase of this initiative is an Oral History Project; local photographer Mark Lee has been videotaping interviews with various individuals who have been part of the struggle to achieve equality for LGBT Hoosiers. Those interviews are being transcribed, digitized and made available as part of the collection.

The Historical Society is also looking for all sorts of “archival” materials: books, magazines, letters, photographs–anything that will help document and preserve the history of gay people in Indiana.

If anyone reading this blog post has such items, I encourage you to send them to the Historical Society, 450 W. Ohio Street, 46202, attention Eric Mundell. And tell a friend.

I think it was Santayana who warned that those who forget their history are doomed to repeat it.

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To Continue My Rant…

I know I’m harping on this, but yesterday a commenter suggested that religious liberty should trump other social goods. (Not his phrasing, but the consequence of his demands.)

That isn’t the law, but more importantly, it isn’t good philosophy either.

Back before so many libertarians made common cause with social conservatives on culture-war issues, and others turned a small-government philosophy into an anti-tax, anti-government cult, I identified as libertarian. The libertarian principle is (deceptively) simple: we each have the right to “do our own thing”– to live our lives as we see fit, free of government interference– so long as we do not harm the person or property of a non-consenting other, and so long as we are willing to extend an equal liberty to others. 

The caveats that follow the “so long as” phrase are important. And they have a critical bearing on the so-called “religious liberty” bills like the one I posted about yesterday– measures to “protect” businesspeople who who defend discrimination against LGBT employees or customers by citing their “deeply-held and sincere religious beliefs.”

As I noted yesterday, similar efforts followed the 1964 Civil Rights Act; then it was a “sincere religious belief” that God wanted to keep the races separate. The courts didn’t buy that argument then, and they are unlikely to buy it now.

As I have written previously, there is a reciprocal relationship–a social contract– between government and its citizens. Government collects taxes from all of us, no matter our race, religion or sexual orientation, and uses those tax dollars to provide public services. The services we taxpayers finance provide an essential infrastructure for American commercial activity.

Businesses ship their goods to market over roads we paid for. They are protected by police and fire departments supported by our tax dollars. Public transportation and sidewalks bring workers and customers to their premises. The deal is, businesses get the benefit of the infrastructure supplied by our taxes, and in return, agree not to discriminate on the basis of race, gender, religion and other markers of group identity.

We can and should argue about the nature and scope of the services government provides, but few people really want to revoke the social contract, dispense with government and return to a Hobbesian state of nature.

Religious liberty is capacious. It allows you to hold any beliefs you want. It allows you to preach those beliefs in the streets, and to refuse to socialize with people of whom you disapprove. It gives you the right to observe the rules of your particular religion in your home and church and social circle without government interference. It gives you a broad right to “do your own religious thing” until you harm someone else, and so long as you respect the right of other people to do their “own thing.” Which “thing” may be different from yours.

Religious liberty doesn’t include the right to disadvantage people who should be entitled to equal treatment, or to use the power of the state to impose some people’s beliefs on everyone else.

Neither the libertarian principle nor the social contract defines “religious liberty” as a right to pick and choose which parts of the social contract you will honor and which ones you will disregard.

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Mike Delph and “Religious Freedom”

It’s deja vu all over again.

Mike Delph–whose hysterical (in both senses of the word) tweets in the wake of the failure of HR3 left no room for doubt about his feverish homophobia–has introduced a bill to protect “religious” folks from having to recognize the civil rights of LGBT citizens. [Update: Evidently that other “religious warrior,” Scott Schneider, authored this particular bill. Given Delph’s legislative history, you can understand how I made the mistake…]

(I’m sure Schneider is equally anxious to protect good Christians from being forced to do business with unwed fornicators, bearers of false witness, adulterers and other sinful folks. That bill will undoubtedly be introduced any day now. Not.)

My friend Bill Groth, a highly respected lawyer who frequently litigates constitutional issues, reminded me via a Facebook post that we’ve seen this movie before. In Newman v. Piggie Park Enterprises, Inc. the Court wrote:

” The free exercise of one’s beliefs…is subject to regulation when religious acts require accommodation to society. Undoubtedly Bessinger has a constitutional right to espouse the religious beliefs of his own choosing, however, he does not have the absolute right to exercise and practice such beliefs in utter disregard of the clear constitutional rights of other citizens. This court refuses to lend credence or support to his position that he has a constitutional right to refuse to serve members of the Negro race in his business establishments upon the ground that to do so would violate his sacred religious beliefs.” 

Newman was decided in 1968.

The identity of the people who we are being asked to classify as second-class citizens may have changed, but the desire to justify bigotry in the name of religion sure hasn’t.

Fortunately, on this issue, that pesky Constitution this proposal ignores hasn’t changed either.

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