Gay Rights – Page 22 – Sheila Kennedy

How Sweet It Is….

Yesterday, the Indiana State Senate voted for the version of HJR 3 that previously passed the House–a version without the legally ambiguous second sentence.

Because a constitutional amendment must pass two consecutive legislative sessions with identical language, the vote will keep the measure off the 2014 ballot. If the single-sentence version passes the next legislature, that version will go on the 2016 ballot.

If I were a betting woman (and I’m not, because I’m wrong about nearly everything), I’d wager we’ve seen the last of this retrograde effort to let “the gays” know that they just aren’t worthy of that pesky “equal protection of the laws” thing. By 2016, even the “God told me my marriage will be worthless if you get to have one too” folks will recognize that this battle is over.

If I may, I’d like to share a few reflections on the campaign that has now (mercifully) ended:

Megan Robertson is awesome. The campaign she directed was brilliant, bipartisan and virtually flawless. (It’s almost enough to make me forgive her for Greg Ballard.) We will hear more from and about this young woman.
The GLBT community demonstrated its maturity and civility. When I first became involved in working on gay rights issues, some twenty years ago, it could be very frustrating. There were factions and “hissy fits” and unhelpful public behaviors. Those behaviors were nowhere to be seen this time around. The community was unified, dignified and focused, laser-like, on what needed to be done. GLBT folks shared their stories, made their case, and stood up for their rights as citizens, as taxpayers and as Americans.
The so-called “allies”–PFLAG moms and dads, pastors of welcoming churches, business leaders, bloggers and editorial writers, and hundreds of Hoosiers who just care about fundamental fairness and decency–shook off their usual apathy and made their opinions known. They swarmed the Statehouse, they wrote letters to the editor, they volunteered at phone banks, and they wrote checks.

And the democratic process worked the way it is supposed to.

In a bright-red state not noted for progressive policies, in a Statehouse dominated by Republicans accustomed to doing the will of their rabidly conservative base, the good guys actually won.

As my husband likes to say, campaigns matter.

I’ll drink to that.

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Testing…

Arguments about morality have been hurled from both directions in the fight over HJR3. Those who want to place the ban on same-sex marriage in the state’s constitution argue that (their version of) biblical morality demands it; those of us on the other side–religious and not– define morality in terms of how we treat other people, and find HJR3 lacking.

There’s another “moral” question involved, however, and it is less often noted.

You might think of HJR 3 itself as a moral test being administered to Indiana legislators.

I have a good friend who is a lobbyist. He’s over at the statehouse every day, and–like all lobbyists–engages in constant conversations with Indiana lawmakers. He tells me that a fair number of those who can be counted on to vote for HJR3 know it is the wrong thing to do. They will admit–privately–that it will hurt Indiana, hurt children being raised in GLBT families, that it is bad public policy, and even that it is morally wrong.

But they “have to” vote for it because they represent conservative areas of the state. Because they might face a primary challenge if they vote their minds and consciences. Because it would be awkward explaining a “no” vote to their constituents.

My friend finds this understandable, if regrettable. I find it despicable.

Sometimes, life gives us hard choices. We’ve all found ourselves in situations where we have to choose between doing what we know is the right thing and doing the easy, self-serving thing. How we act in those situations is the true test of character and morality.

Some of our legislators are truly homophobic. Others believe, for whatever reason, that gay citizens are not entitled to equal rights. They’re wrong, and most of them probably realize that they’re on the wrong side of history. But they’re voting their beliefs, however benighted I may consider those beliefs.

The truly contemptible lawmakers are the ones who know better, the ones unwilling to do what they know is right because doing so might entail some personal cost.

They fail the test. Big time.

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“Clarifying” HJR3

The Indiana General Assembly has re-introduced the constitutional ban on same-sex marriage previously known as HJR6–it is now HJR3–and in an effort to blunt mounting criticisms of the measure’s “what the hell does that mean?” second sentence, they’ve introduced a “clarifying” companion statute.

As a number of lawyers have pointed out, the “clarification” is a legal non-starter: legislative bodies don’t get to tell judges how to interpret constitutional language, and efforts to do so raise substantial separation of powers issues. The lawyers serving in the Indiana General Assembly undoubtedly know how meaningless this legislation is, but then, its purpose was political, not legal. HJR3’s second sentence is a disaster, and this is just a lame effort to obscure that fact.

Attempts at distraction aside, here’s what mystifies this recovering lawyer:

Over and over, its proponents insist that a state constitutional amendment is needed because Indiana’s current statute defining marriage as a union between one man and one woman isn’t strong enough. We’re told a constitutional amendment is needed to protect Indiana’s existing ban from “activist” judges.

This is utter horse poop. (I am trying to watch my language.)

In Indiana, “activist” state court judges have already upheld Indiana’s legislation banning same-sex marriages. So there is no threat from the state bench. And a state constitutional provision would be utterly useless should the U.S. Supreme Court affirm a right to marry. In such a case, a state constitutional measure would be just as unenforceable as the existing statute.

Let me spell this out slowly, for those crack legal minds (or was that legal minds on crack?) in the General Assembly: passage of HJR3 will not “protect” Indiana’s current ban on same-sex nuptials.

That isn’t to say that passage of HJR3 would be meaningless. It would do several things: send a signal that Indiana is a backward, intolerant state; invite lots of litigation inviting those “activist judges” to figure out what the hell the second sentence does or doesn’t mean; encourage members of Indiana’s creative class to consider relocation; and make it far more difficult for Hoosier businesses to recruit “the best and brightest.”

Those consequences are clear enough.

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Credulity 101

Are the members of the churches in his network as ignorant and credulous as Eric Miller clearly thinks they are?

If so, it’s the most convincing evidence to date of the need to improve civics education.

As the Indianapolis Star has reported, Miller and his fellow culture-warrior Curt Smith are trying to rally their troops by claiming that, if HJR6 doesn’t pass, pastors who preach against homosexuality might be thrown in jail.

This, of course, is utter bullshit.

Although his willingness to tell humongous fibs does raise the possibility that Miller didn’t really graduate from an accredited law school (or listen to church lessons about bearing false witness), I’ve always presumed that he did, and that somewhere along the way he had to encounter the U.S. Constitution. The First Amendment–and specifically, the Free Exercise Clause–clearly allows pastors to preach whatever they believe without fear of punishment by big, bad government. (If bigotry from the pulpit were a criminal offense, a lot of racist pastors would be ministering from behind bars.)

The worst thing government can do to churches is revoke their tax-exempt status when they become too involved in partisan political campaigns–and the IRS has historically been loathe to impose even that penalty.

Miller’s other assertions are equally bogus. HJR6 would place a ban on same-sex marriage and civil unions in the Indiana Constitution. The presence or absence of that ban would have absolutely no effect on merchants’ decisions about what customers to serve. A prohibition on discriminating against gay customers would only take effect if Indiana ever amended its state civil rights laws to include GLBT folks. Unless and until that happens, homophobic business owners remain free to refuse service to gay people, to fire people for being gay, and to refuse to hire people they suspect may be gay.

I’m not going to dignify the restroom accusation, except to point out that most public restrooms are used by one person at a time, and–don’t tell Miller–a lot of establishments today only have one facility for both men and women. I’ve never understood the Right’s hysteria over toilets.

Speaking of hysteria, these latest, patently ridiculous accusations are the latest sign that Miller and his merry band of culture warriors are getting pretty hysterical. They are not going softly or gracefully into the dustbin of history.

But hysterical or not, that’s where they’re going.

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When Abstaining Isn’t

There’s been an unpleasant little episode playing out at IUPUI, where I teach. Although both Indiana University and IUPUI have officially come out in opposition to HJR6–passage of which would make it incredibly difficult to recruit first-rate faculty–the Executive Committee of IUPUI’s Staff Council recently decided to abstain, and remain neutral.

As the name suggests, the Staff Council is an organization of staff–the administrative assistants, IT experts, development professionals and others without whom the university simply couldn’t operate. And evidently (unlike the situation with faculty, virtually all of whom oppose the measure), some staff members support HJR6. So the Executive Committee–without a staff vote and in what I take to be an effort to avoid controversy–decided to sit this one out.

The problem is, there are some things you can’t sit out. There are some issues–and this is one of them–where taking “no position” is taking a position.

We don’t think kindly these days about the white Southerners who decided to “stay neutral” about segregation, or the whites (North and South) who “stayed neutral” about discrimination in housing and on the job.

When you say “Well, maybe black children should be entitled to go to school with white ones, but a lot of my neighbors think blacks are inferior and I don’t want to piss off my neighbors so I’ll just stay quiet and accept the status quo,” you are endorsing that status quo. When you say “I know gay people already can’t marry in Indiana, but some of my colleagues want to make sure we outlaw civil unions too, and I don’t want to argue with them,” you are endorsing the legitimacy of your colleagues’ anti-equality position.

I understand that some Christians–certainly not all, or these days even most–consider homosexuality a sin. That is their right. Their churches have a right to preach that doctrine, a right to refuse to marry same-sex couples, to write letters to editors and to fulminate to their family members at Thanksgiving. But in our constitutional system, they should not have a right to deny gay people equal treatment under the law, and (however grudgingly and inconsistently) most courts, government institutions and everyday Americans have come to agree.

The right to equal treatment by civil authority is more than a constitutional requirement; it is a moral touchstone of American culture. It’s not something one can be neutral about.

Refusing to engage–abstaining from the struggle in an effort to placate everyone–satisfies no one. It’s cowardice–and betrayal.

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