Gay Rights – Page 8 – Sheila Kennedy

Still Fighting The Last War

Indiana Republicans seem determined to keep fighting the culture wars–especially the ones they’ve already lost.

At the Republican state convention–held the same day that approximately 100,000 Hoosiers gathered in Indianapolis to celebrate Pride and watch a parade that has become larger than the parade mounted by the Indy 500– GOP delegates voted down a proposed change in the party’s platform. The change would have removed language describing marriage as only between a man and woman.

Take that, 21st Century!

As the Northwest Indiana Times reported,

EVANSVILLE — The Indiana Republican Party, by an overwhelming margin, reaffirmed Saturday its commitment to marriage “between a man and a woman” as the preferred structure for Hoosier families.

In so doing, the 1,494 GOP delegates attending the party’s biennial state convention turned aside a revised “strong families” platform plank, proposed by Gov. Eric Holcomb’s party leadership, that expressed support for all adults raising children, in favor of renewing explicit support for opposite-sex marriage that first was inserted in the platform in 2014 by marriage equality opponents.

According to several reports, most of the delegates in attendance applauded and cheered following the vote. The reaction was described as an endorsement of “Mike Pence-era” attitudes.

Daniel Elliot, the Morgan County GOP chairman and leader of the Republican Victory Committee that pushed the platform issue to the convention’s forefront, said preferring man-woman marriage “is an important part of who we are as Hoosier Republicans.”

Unfortunately for Indiana, he’s right. It is who they are.

Hoosier Republicans continue to deny the equality of their LGBTQ neighbors–and generally reject other efforts to move the party in the direction of inclusiveness for people who don’t look like the people they see in their churches on Sunday, or in their mirrors. The Indiana GOP is– as the Northwest Times article suggests– still the party of Mike Pence.

It isn’t just homophobia. Members of the Pence party are suspicious of calls for equal pay for us “uppity” women, let alone the scandalous notion that we should be allowed to control our own reproduction. Pence Party Hoosiers want to halt immigration (at least from south of the border), and they roundly reject the notion that we might have an obligation to resettle the women and children refugees who have fled from unimaginable horrors. They are equally uninterested in the possibility of raising the minimum wage in order to ameliorate the struggles of the working poor– the third of Hoosier families that fall within the ALICE demographic.

Mostly, however, it’s “non-Biblical” sex that offends them. (Or, as a friend of mine used to opine, they are enraged by the prospect that across town somewhere, someone is having a good time…)

It will be interesting to see how these Pence party attitudes–which may have carried the day in Evansville, but are by and large not shared even by urban Republicans– play out in November. Granted, this is Indiana–the “buckle on the Bible Belt”–but citizens of this red state have largely come to terms with the Supreme Court decision on same-sex marriage. Lots of Hoosiers have gay friends and relatives, significant numbers attend churches and synagogues that are affirming and welcoming, and they are ready to move on.

The “Pence party,” not so much.

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A Decision That Isn’t

Well, the United States Supreme Court just emulated Solomon.

Remember the biblical story in which two women claimed to be the mother of a baby, and demanded that Solomon decide between them? He proposed to cut the baby in two, knowing that the real mother would withdraw her claim in order to protect the baby. The lesson from that parable? Solomon was a smart guy.

So is Justice Kennedy.

The case before the Supreme Court was poised to add lots of fuel to America’s already raging culture war. In 2012, a Colorado baker had refused to create a wedding cake for a same-sex couple, citing his religious beliefs. (This wasn’t a refusal to sell a cake that already existed; the baker had evidently been asked to create one especially for the couple. He argued that doing so would amount to compelling his speech in favor of same-sex marriage, which he opposed.) At the time, Colorado did not recognize same-sex marriages, but the state had a civil rights law that included protections for LGBTQ citizens, and the state’s Civil Rights Commission ruled that the baker had violated that law, and intermediate courts upheld the Commission.

The Supreme Court reversed, ruling 7-2 for the baker. Sort of.

Although it is hard to fault the logic of the dissent by Ruth Bader Ginsberg and Sonia Sotomayor, who argued that baking a cake is not the expression of an opinion, the majority decision in the Masterpiece Cake case was a masterpiece. (Okay, terrible pun.) As USA Today reported,

the long-awaited decision did not resolve whether other opponents of same-sex marriage, including bakers, florists, photographers and videographers, can refuse commercial wedding services to gay couples. In fact, the court on Monday scheduled a similar case involving a Washington State florist for consideration at their private conference Thursday.

The decision reiterated the rule that business owners generally cannot deny equal access to goods and services under a neutral public accommodations law. The result in Masterpiece turned instead on the Court’s finding that the baker had been treated prejudicially by Colorado’s Civil Rights Commission– that the Commission had demonstrated a hostility to religion in its treatment of the case.

Kennedy reasoned that Phillips, in refusing to create a same-sex wedding cake, had good reason to believe he was within his rights. State law at the time allowed merchants some latitude to decline specific messages, such as those demeaning gay people and gay marriages.

The government cannot impose regulations hostile to citizens’ religious beliefs, the ruling said. But it was limited to Colorado’s treatment of Phillips; had the process been fair, Kagan and Breyer likely would have been on the other side, and Kennedy would have had a tougher decision to make.

“A vendor can choose the products he sells, but not the customers he serves — no matter the reason,” Kagan wrote, joined by Breyer. “Phillips sells wedding cakes. As to that product, he unlawfully discriminates: He sells it to opposite-sex but not to same-sex couples.”

The plaintiff won. He gets a new hearing. However, the ruling is unlikely to affect other claims of discrimination by same-sex couples.

The Court’s decision deprives the Religious Right of a grievance that would have been useful for fundraising and political organizing, it does no damage to gay civil rights generally, and it is too narrowly tailored to be used as a precedent by others claiming a religious right to discriminate. If you are going to “lose” a case, this is clearly the way you’d want to lose it.

Well done, Supremes.

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Confirmation: It Isn’t About Religion

The Indianapolis Star, in one of its increasingly rare forays into what used to be called “news,” reported on a very interesting study investigating popular opinion about the pending Supreme Court case brought by a baker who refused to sell a wedding cake to a gay couple.

As most of you are aware, the baker–routinely described as very pious–has argued that forcing him to sell one of his cakes to a same-sex couples would not only violate his religious liberty, but would amount to “compelled speech.” That is, he argues that civil rights laws requiring him to do business with people he considers immoral are really compelling him to affirm his approval of that immorality.

The free speech argument appears to be a fallback, in case the Supreme Court doesn’t buy the religious liberty one. In any event, most people who are aware of the controversy see the conflict as one pitting respect for “sincere religious belief” against the rights of LGBTQ citizens to be free of discrimination.

As the study found, it really isn’t.

I vividly recall a conversation I had many years ago with a friend I knew to be a truly nice person. He wasn’t a bigot. I was Executive Director of Indiana’s ACLU at the time, and he understood the organization to be a defender of individual liberty and the proposition that the power of government (and popular majorities) to prescribe our behaviors is limited by the Bill of Rights.

He wanted to know why the ACLU didn’t think civil rights laws violated individual liberty. Doesn’t “freedom” include the freedom to discriminate?

The study cited by the Star confirms the continued salience of his long-ago question.

People who believe businesses should be able to deny services to same-sex couples aren’t necessarily citing religious reasons for discriminating, a new study by Indiana University sociologists has found.

Instead, many simply believe businesses should be able to deny services to whomever they want — even though that violates civil rights laws that protect certain classes of people….

Slightly more than half of those surveyed said they supported a business denying wedding services to a same-sex couple, whether the business cited religious opposition to same-sex marriage or non-religious reasons.

I’ve been in these discussions, and more often than not, people who believe civil rights laws deprive them of their liberty will say something like: “what about those signs that say ‘no shoes, no shirt, no service?” or “the government shouldn’t make the kosher butcher sell ham,” or “what if a Nazi asked the baker for a swastika cake?”

I will restrain myself from launching into one of my “civic ignorance” diatribes, and merely point out that civil rights laws do not deprive merchants of their liberty to refuse service based upon a customer’s behavior. Merchants also retain the liberty to decide what goods they will sell (if a menswear store refuses to stock dresses for sale to a female customer, that doesn’t violate anyone’s civil rights.)

Civil rights laws prohibit discrimination based upon the identity of customers who are members of legally specified classes. (FYI: Nazis aren’t a protected class.)

Do those laws curtail a merchant’s “liberty” to discriminate? Yes. So do laws prohibiting religious parents from “whipping the devil” out of their children, and a variety of other “sincere” behaviors deemed damaging or dangerous to society.

Here’s the deal–the “social contract.”

When a merchant opens a shop on a public street, he depends upon local police and firefighters to protect his property. He depends upon government to maintain the streets and sidewalks that allow customers to access his store, and the roads, railways and air lanes that carry his merchandise from the manufacturer to his shelves. In return for those and other public services that make it possible for him to conduct his business, government expects him to pay his taxes, and obey applicable laws–including civil rights laws that protect historically marginalized groups against his disdain.

The butcher, the baker, and the candlestick maker retain their liberty to advertise that disdain. They retain the liberty to lobby for repeal of civil rights laws. They retain the right to exclude people they consider immoral or unpleasant or just “different” from their social gatherings, their churches and their homes.

As I’ve often said, if you don’t like gay people, you don’t have to invite them to dinner. You just have to take their money when it’s proffered in a commercial transaction.Is that really an intolerable invasion of your liberty?

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Indefensible

Although the United States and Europe have made impressive strides, both culturally and legally, in the battle against homophobia, that progress has by no means been global in scope.

Homosexuality is illegal in over 70 countries, and in 13 of them, the penalty is death.

Very few of the issues that come before the United Nations are straightforward, but on September 29th, members voted on a Resolution that should have been a “slam dunk” for the U.S. The motion called upon countries in which capital punishment remains legal to take steps to ensure that the death penalty is not imposed “arbitrarily or in a discriminatory manner” or for forms of conduct such as apostasy, blasphemy, adultery and consensual homosexual relations.

As numerous outlets, including Newsweek, reported,

The United States was one of 13 nations, including some of the most repressive nations on Earth, to oppose a United Nations motion condemning the death penalty for those in same-sex relationships, blasphemers and adulterers.

Incredible as it seems, the United States voted in Geneva against that United Nations motion. We were joined by Botswana, Burundi, Egypt, Ethiopia, Bangladesh, China, India, Iraq, Japan, Qatar, Saudi Arabia and United Arab Emirates in voting no. That’s the company we are evidently now keeping.

The measure passed anyway, with 27 votes, but that doesn’t make our vote any more palatable, or any less of a betrayal.

Rights activists have condemned the Trump administration and its U.N. ambassador, Nikki Haley, for refusing to back the measure, with the Human Rights Campaign slamming the decision as “beyond disgraceful.”

“Ambassador Haley has failed the LGBTQ community by not standing up against the barbaric use of the death penalty to punish individuals in same-sex relationships,” said Ty Cobb, director of HRC Global in a statement.

Susan Rice, ambassador to the U.N. under Barack Obama, said “shame on US!” in reaction to the vote.

“I was proud to lead U.S. efforts at UN to protect LGBTQ people, back in the day when America stood for human rights for all,” she tweeted.

The State Department denied animus toward the LGBTQ community, and defended the vote on the grounds of “broader concerns”– i.e., the resolution’s condemnation of the death penalty. (It called for countries which have yet to abolish the death penalty to “consider” doing so.) In the past, the U.S. has abstained from voting on condemnations of capital punishment, and we could easily have joined the seven nations that abstained from this particular vote. But we didn’t.

Abstention is one thing. A “no” vote is another. The U.S. has never previously voted against such resolutions.

Despite State Department insistence that the vote did not signal a change in U.S. support for the rights of LGBTQ persons,

The U.N. vote comes a week after the Trump administration argued in court that federal anti-discrimination law does not protect gay people from being fired by their employers because of their sexuality.

Nineteen states in the U.S. and two-thirds of the countries in the world have abolished the death penalty. In retaining capital punishment, we join countries like Uganda, Afghanistan, Pakistan and other nations not exactly known for their enlightened view of human rights. We not only retain the death penalty, we use it. A lot. The U.S. executes more people than most other nations; according to Amnesty International, of the 10 nations in the world that account for the highest number of executions, we rank seventh.

That enthusiasm for the death penalty, while incomprehensible to me, might have justified an abstention from the vote. It does not justify voting against the resolution. Claims that the vote isn’t a signal that the Trump administration is trying to roll back progress on gay rights ring hollow.

Not that an assault on yet another group despised by White Straight Conservative Christian Males should surprise us….

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What’s Different?

As the Supreme Court prepares to take up one of the persistent “I won’t bake a cake for ‘those people'” cases, a friend asked me to explain the difference between a merchant who refused to do business with a Neo-Nazi group and one who refused to serve gays or Jews.

It’s an important distinction, but not an immediately intuitive one.

Civil rights laws were initially a response to businesses that refused to serve African-Americans–many of the proprietors claimed that their religious beliefs prohibited “mixing” the races (much as those refusing service to LGBTQ folks today base that refusal on religious teachings). Those civil rights measures–later expanded to protect other groups– were based upon an important principle that undergirds our legal system.

Our system is based upon the premise that your right to be treated like everyone else depends upon your behavior, not your identity.

As a result of that important distinction, I can post a sign saying “No shirt, no shoes, no service.” I cannot post a sign saying “No blacks, no Jews.” I can “discriminate” between customers behaving properly, and those who are disruptive, are unwilling to pay, or are otherwise exhibiting behaviors that I believe are harmful to my ability to ply my trade.

I cannot discriminate based upon my customers’ race, religion, or–in states that have inclusive civil rights law–sexual orientation or gender identity.

The confusion between a merchant’s unwillingness to have her business associated with the KKK, for example, and unwillingness to serve LGBTQ customers is reminiscent of arguments raised when Indiana was (unsuccessfully) trying to add “four words and a comma”(sexual orientation, gender identity) to Indiana’s civil rights law, which still does not include protections for gays or transgender individuals.

During those arguments, opponents of the added protections asserted that “forcing” a business to serve gay customers would be indistinguishable from forcing a baker to make a cake with a swastika or forcing Muslim or Kosher butchers to sell pork.

That comparison, however, is fatally flawed.

If I go into a menswear shop and ask for a dress, am I being discriminated against when I’m informed the store doesn’t sell women’s clothes? Of course not.

Civil rights protections don’t require the baker who doesn’t bake swastika cakes, or the butcher who never sells pork to add those items to their inventory. Civil rights laws do keep the baker from refusing to sell the cakes he does make to “certain people.”

The kosher butcher doesn’t have to carry pork, but he can’t refuse to sell his kosher chickens and beef to Muslim or Christian customers, again, so long as those customers can pay and are abiding by the generally applicable rules of the shop.

The distinction may not be immediately obvious, but it’s important. The essence of civil rights is the principle that you can be denied service for your chosen behaviors, not for your identity.

I hope that helps…

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