Category Archives: Gay Rights

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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Watch Out for the Backlash

When people talk about “backlash,” they are generally referring to a reaction to something–an effort to undo or reverse a previous change.

Backlash is thus the proper term to apply to the movement that began in the mid-1960s, in reaction to social disruption caused by anti-war activism, feminism and the civil rights movement. Middle-class whites, especially but not exclusively in the South, resented the erosion of their social dominance and banded together to fight what they saw as the increasing secularization and liberalism of American society.

Paranoid fringe groups like the John Birch Society and similar “patriot” and  “Christian” groups gradually took over the national GOP. Political scientists tell us that Reagan’s election in 1980 solidified right-wing conservative efforts to transform the political landscape of America. Since 1980, the GOP has become less and less genuinely conservative—and more and more radically reactionary.

African-Americans understand the implications of this takeover (much more on that in tomorrow’s blog). I’m not so sure that LGBT folks do.

After all, although the racism at the heart of the backlash has become impossible to ignore,the  LGBT community is celebrating years of increasing acceptance. Same-sex marriages are widely if not universally recognized, and a majority of Americans support them. Popular culture is inclusive and affirming. Civil rights are being extended, albeit slowly.

As a recent post from The Daily Beast noted, “Today, unlike ever before, most Americans have openly gay friends, colleagues, and family members, and most approve of same-sex relationships. Young people are overwhelmingly gay-friendly, leaving little doubt which way the trends are going.”

So, as Alfred E. Neumann (Google it) used to say, “What—Me Worry?”

As the Daily Beast and other sources have reported, however, this rosy picture has plenty of thorns:

  • The Texas Republican Party has officially endorsed so-called “reparative therapy,” a quack regimen that reputable psychiatry roundly condemns. (How considerate! The Texas GOP wants to ensure the availability of “therapy and treatment for those patients seeking healing and wholeness from their homosexual lifestyle.”)
  • In Oklahoma, a conservative candidate for the state House of Representatives, has quoted Biblical passages that (he says) prescribe the death penalty for homosexuals. On a Facebook post, he wrote “I think we would be totally in the right to do it.”
  • Mississippi just passed a measure being considered in several other states that would “protect religious liberty” by allowing people to act on their “sincere religious convictions” by refusing to do business with gay clients or customers.

More disturbing, the Sixth Circuit Court of Appeals recently broke what had been a string of pro-equality federal appellate rulings and upheld state bans on same-sex marriage, giving hope to those who want to roll back the clock on LGBT rights.

As I look out at our increasingly contentious, toxic political environment, I see a distressing number of frightened, old, furious, deeply threatened white heterosexual males. On my good days, I interpret their hysterical reaction to social change—their racism, their homophobia, their sexism—as the “last throes” of the old order of things. A backlash with unfortunate but ultimately temporary effects.

On my bad days, I worry that the vast amounts of money they are spending, the religious “authority” they are wielding/perverting, and their fanatic persistence will carry the day.

Progress is not a given.

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I Haven’t a Clue

During a discussion with a friend the other day, he asked me a question I couldn’t answer.  Why, he wondered, did so many other Western democratic countries accept same-sex marriage before the United States? We still have states fighting tooth and nail against the tide of recognition, while in other parts of the modern world, the fight has been over for more than a decade.

I actually asked myself the same question back in 2005, when Spain recognized same-sex marriages. How did it happen that the country best known for the  Inquisition recognized same-sex marriage before we did?

The Netherlands was first, recognizing same-sex unions in 2001. In addition to Spain, Belgium, Denmark, France, Iceland, Luxembourg, Norway, Portugal and Sweden have all followed suit. Last year, Britain joined the growing list.

It isn’t just Europe, either–last year, New Zealand became the first country in the Asia-Pacific region to legalize gay marriage.  South Africa did so back in 2006.

We Americans pride ourselves on our devotion to individual liberty and human rights, but we haven’t exactly been pioneers on this issue. (Or, come to think of it, on other issues involving acceptance–let alone celebration–of diversity.) Of course, there’s that durable Puritan heritage that continues to fight–often successfully– with the Enlightenment roots of our governing philosophy.

The U.S. is an outlier among western democratic societies when it comes to religion. (Ironically, given Puritans’ constant efforts to pass laws privileging religion, sociologists tell us it is our lack of a state-endorsed religion–our Enlightenment freedom to choose–that is largely responsible for Americans’ persistent religiosity). Since most opposition to same-sex marriage is based on religious doctrine, that’s my best guess at an answer.

Any other theories about why we lag the rest of the west?

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I See Ignorant (Elected) People

Fair-minded Americans have welcomed the recent wave of court decisions striking down bans on same-sex marriage. The LGBT community and its allies have been positively euphoric.

Of course, the homophobes and those who pander to them have had a somewhat different reaction.

Here’s the thing: people who don’t approve of gay people, or whose religious beliefs somehow require them to see gays as sinners and same-sex marriage as an abomination, are entitled to those beliefs. It’s a free country. And elected officials are entitled to disapprove of judicial decisions, although they are not free to disregard them. All of these debates over what is best for the country, what constitutes fair play, what discrimination looks like…all of the cacophony that surrounds social change is both predictable and within the bounds of democratic deliberation.

Abject ignorance is not.

Which brings me to Jan Brewer, Governor of Arizona, and her rant in the wake of court rulings that invalidated her state’s ban on same-sex marriage.

“It is not only disappointing, but also deeply troubling, that unelected federal judges can dictate the laws of individual states, create rights based on their personal policy preferences and supplant the will of the people in an area traditionally left to the states for more than two hundred years.

 Simply put, courts should not be in the business of making and changing laws based on their personal agendas. It is not the role of the judiciary to determine that same-sex marriages should be allowed.”

Sorry, Governor Brewer, but your civic ignorance is showing. Courts are absolutely “in the business” of “supplanting the will of the people” when that will violates the Constitution. As I pointed out on this blog yesterday, the Founders of this country created an independent federal judiciary (one that was not elected) and provided those judges with lifetime tenure, because judges were supposed to be responsive to the Constitution and the rule of law—not to the electorate.

Congress and the Executive branch were supposed to respond to majority preferences; the judiciary, however, was supposed to safeguard individual and minority rights and to ensure that the other branches did not violate the Constitution in their eagerness to pander to popular passions.

I have repeated this basic premise of American constitutional law over and over—in my columns, my blogs and my classrooms. Let me do so again.

The Bill of Rights answers an important procedural question: who decides? Who decides what prayer you say, what book you read, how many children you have? In our system, government doesn’t get to decide these and other very personal matters—we individuals decide these things for ourselves. The Bill of Rights doesn’t tell us what we should value or how we should live our lives; it protects our right to make those decisions for ourselves, free of interference by government scolds.

The Bill of Rights also limits what popular majorities can vote to have government do. In fact, the Bill of Rights is sometimes called a “libertarian brake” on the power of the majority. A majority of your countrymen cannot vote to make you a Baptist or an Episcopalian; they don’t get to vote on your reading materials or your political opinions or your choice of a life partner.

People who don’t understand the most basic operation of our system—like Arizona’s Governor Brewer, or Indiana’s Mike Pence—misunderstand and misrepresent court decisions that uphold the right of individuals to live their lives as they see fit without sacrificing their right to equal treatment under the law.

The fact that we keep electing people like this is what I find “deeply troubling.”

Same-sex marriage doesn’t threaten the republic. What threatens the republic is the election of people who are totally ignorant of the Constitution they are sworn to uphold.

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