Tag Archives: Gay Rights

Getting It Backward

In a recent article about the experiences of gay Supreme Court clerks, I came across the following paragraphs:

Justice Antonin Scalia, joined by Rehnquist and Justice Clarence Thomas, has authored some of the most caustic dissents against gay legal rights. In his dissent in Lawrence v Texas, Scalia said the majority had “signed on to the so-called homosexual agenda … directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct.”

Asked last month in an interview about his dissents in past gay-rights cases, voiced from the bench as well as in his written opinions, Scalia said he was merely reading the Constitution, which he says does not cover a right to same-sex relations: “Where does it come from?” he said. “This is a trendy view of the current society elite. It’s not right to impose it on everybody else. It’s a democratic question. If you want to permit homosexual sodomy, then pass a law.”

This betrays a profound misreading of the Constitution and our most basic approach to the role of government–a misreading that Scalia himself would scorn in a different context.

One of the very few things the Tea Party folks get right is their insistence that rights precede government. Their formulation is that rights are “god-given”–I won’t go that far, but I agree with the Founders that humans have rights simply by virtue of being human, that we are born with “inalienable” rights. The Bill of Rights is a list of actions that government is forbidden to take—actions that would violate those antecedent rights.

The language in the Ninth and Tenth Amendments–amendments that Scalia the “textualist” rarely mentions–is pretty explicit on the point, providing that failure to “enumerate” a right in the preceding Amendments is not to be taken as evidence that the right was not protected. That language was included in order to calm the fears of folks like Alexander Hamilton, who argued that the government of delegated powers that the Founders had created had been given no power to infringe fundamental liberties, and worried that a written Bill of Rights would inevitably omit some important ones.

The Constitution doesn’t explicitly protect a right to have children, or a right to travel, or any number of other rights the Court has had no difficulty recognizing as protected. We would rightly consider it absurd if a Justice of the Supreme Court said something like “If you want to allow people to have children, pass a law.” A majority of the Court–unlike Scalia–understands that we don’t comb through the Constitution to find out whether government, in its infinite wisdom, has conferred a particular right on We the People.We look to the Constitution to see whether government has been given the right to interfere with a particular liberty.

And I don’t find anywhere in the Constitutional history or text where government is given the power to decide who has human rights.

Comments

Do You See What I See?

A couple of days ago, an email from the Human Rights Campaign began with the following paragraph:

“Just yesterday, one of Mitt Romney’s highest profile supporters, and a member of the GOP platform committee, said same-sex marriage is something the government should condemn – along with drug use and polygamy.”

The rest of the message teemed with righteous indignation, and ended with a predictable plea for money.

Now, I fully understand how demeaning that statement feels. But I also understand where it comes from. A few years ago, during my sabbatical, I did research that later became my book God and Country. I was curious about the ways in which religious cultures and beliefs shaped people’s positions on various policies–not just hot-button social issues, but also policies we think of as wholly secular, like welfare, the environment, criminal justice.

The research was fascinating–and enlightening. It turns out that our religious socialization affects the way in which we categorize issues. So–when it comes to sexual orientation, for example–research suggests that Christians and Jews tend to classify the issue differently. Jews are more likely to classify sexual orientation as one aspect of identity, like eye color or intellectual capacity; for most Christians, on the other hand, sex is classified as a behavior–like drug use or polygamy. This initial classification doesn’t necessarily prevent Christians from drawing moral distinctions between different behaviors, and many Christians do not consider homosexuality to be immoral. But the evaluation process proceeds from different starting points.

Cultural assumptions can be changed over time, of course, and changing the way people classify sexual orientation initially is one of the great triumphs of the gay civil rights movement.

We can see it in the language: the term “sexual preference” is rarely used these days (except by the likes of a Micah Clark or Sarah Palin); it has been replaced by “sexual orientation.” The first term suggests a behavioral choice; the second, an immutable characteristic. It is an incredibly important distinction; immutable characteristics–like gender or eye color or skin color–are by definition morally neutral.

You can choose to use drugs, you can choose to be a polygamist. But science has exploded the myth that people choose to be gay, and most Americans–whatever their religious socialization–have come to understand and accept the fact that sexual orientation is not chosen.

It’s not a fluke that the people who compare homosexuality to drug use are also anti-science.

There are many ways to slice and dice the American electorate, but I am increasingly convinced that the fundamental (no pun intended) fault line is between those who accept science and modernity and can live with the resulting ambiguities, and those who don’t and can’t–those who find change threatening and ambiguity terrifying, and who cling more and more tightly to the comforting categories and certainties of the (re-imagined) past.

Comments

This is Getting Tiresome

Micah Clark of the Indiana Family Institute is nothing if not dependable. And unhinged.

The Indianapolis City-County Council is considering a proposal that would extend benefits to unmarried employees whose significant others are either unemployed or cannot get those benefits from their own employers. Predictably, councilors received a long, rambling email from him with accusations that such a policy would “undermine marriage and mock Indiana’s marriage statute,” that it was a “political statement, not a policy change,” that children residing in the homes of unmarried partners “will be sexually, physically or emotionally abused,” and that “gay men are substance abusers at a higher rate than the general population.”

Zach Adamson–who has more patience than I would have with Mr. Clark’s accelerating emotional instability–calmly tried to respond to the torrent of accusations. As he noted, the proposal does not “extend marital benefits” as Clark charged; it simply amends the City’s employment package to adjust compensation levels. It is a human resources policy modeled after that used by over 60% of Fortune 500 companies to attract and retain a qualified workforce. Other midwestern cities–Columbus, Cleveland and Cincinnati, for example–already have such policies.

Zach’s point-by-point takedown was a great example of trying to reason someone out of a position he didn’t reason himself into. It was also futile. The two page diatribe simply dripped with hatred for GLBT people, with accusations that gays are trying to destroy marriage, that lesbians are alcoholics, homosexual men syphilitic…well, you get the picture. It is impossible to read it without wondering what demons Mr. Clark is battling–what monsters are in his personal closet.

Thankfully, the days when Micah Clark and his ilk controlled the public discourse on these issues are over. Homophobes used to be able to use religion to deflect criticism of their hatreds, but increasing numbers of churches are endorsing equality for gays and lesbians. As their fig leaves are stripped away, nothing but incoherent fury and frustration remain.

Poor Micah Clark. I feel sorry for him, but I’ll be glad when society quarantines his particular strain of mental illness.

Comments

Deconstructing “Special Rights”

I heard someone make the claim again yesterday: gays want “special rights.”

So let me understand this argument:  If government respects the civil rights of Christians—and if Human Rights agencies protect those Christians from being picked on because of their beliefs—that’s simply government protecting equal rights.

But if government treats LGBT folks just like it treats everyone else—if it empowers those same Human Rights agencies to protect gay folks from being picked on because of their sexual orientation—that’s “special rights.”

When laws protect Christians, that isn’t a violation of the religious liberty of Jews, Muslims or atheists—it is a simple recognition that all religious people are entitled to hold their beliefs freely, without fear of discrimination. But if laws protect gays and lesbians, that’s an impermissible endorsement of the “gay lifestyle” and a violation of the religious liberty of those Christians who condemn homosexuality.

Got it.

I routinely encounter people who hold these logically incompatible beliefs, and to be honest, I’m getting pissed off. One of these days, I’m going to get in the face of one of these “Christian Nation” folks and demand to know just how they manage to twist the definition of “liberty” to mean their  right to impose their beliefs on those who don’t share them.

We’ve had the “special rights” accusation—lame as it is—for quite some time. But the charge that requiring businesses to treat people fairly violates “religious liberty” is a relatively new wrinkle on that argument—and it is driving me up the wall.

I posted recently about a hearing at which the South Bend, Indiana, Common Council was considering the addition of sexual orientation and gender identity to the categories covered by the city’s Human Rights ordinance. The measure passed handily, but not before a number of people asserted that forcing them to hire or retain qualified GLBT workers, or rent to same-sex couples, would violate their religious freedom.

Very similar claims were made when the Obama Administration ruled that employer-provided health insurance had to cover birth control for female employees who wanted it.

The argument seems to be that “religious freedom” means government can never interfere with me if I am acting on the basis of a genuine religious belief. That, needless to say, is not and never has been the law—I may sincerely believe that I should sacrifice my first born, or deny my child medical treatment, or smoke peyote during a religious ceremony, but the law doesn’t allow me to do any of those things, or hundreds of others, merely because I claim a genuine belief that God wants me to.

One reason that isn’t the law should be fairly obvious, at least to rational people. How on earth would we know that an employer was denying women workers birth control because he believed its use to be sinful, and not just because he wanted to save a few bucks? How would we know whether a landlord’s refusal to rent an apartment to a gay single or a same-sex couple was motivated by theology rather than by garden-variety homophobia?

This is the same problem prosecutors now face in the Trayvon Martin shooting, under the ridiculous “Stand Your Ground” law. Self-defense has always been a defense to a charge of murder—but only as part of a trial, after an initial arrest. Stand Your Ground laws are self-defense on steroids; they allow anyone to make a subjective claim that the government must initially treat as objectively true. Such a practice is simply contrary to the rule of law.

Religious liberty means that each of us has the right to believe what we wish, to follow the dictates of our consciences and theologies, and to observe the tenets of our faiths so long as we do not thereby infringe the equal rights of others or violate laws of general application (i.e., we can’t “kill a commie for Christ” as the 50s joke went). Religious liberty is not a “get out of jail free” card allowing us to deny an equal right to liberty to people we don’t like.

Comments

Sausage-Making at Work

There’s an old saying that the two things you should never watch are sausage-making and law-making. Good as that advice is, it can be very enlightening (if somewhat nauseating) to be present as the democratic process unfolds.

Yesterday, I accompanied the President of Indiana Equality to South Bend, where the Common Council was to deliberate (for the third time) on a proposal to amend that city’s Human Rights Ordinance. The existing Ordinance allowed the Human Rights Commission to mediate complaints of discrimination in employment, public accommodations and housing based upon race, gender, national origin and religion; the proposal being debated was to add sexual orientation and gender identity to that list.

I was there to offer “expert” testimony–my status as an expert by virtue of an imposing title and the fact that I live more than 50 miles away. Opponents insisted that the city had no legal authority to enact the changes, and that the Ordinance was so poorly drafted that enforcement would be impossible. Since the language was identical to that in the Indianapolis Ordinance–which has been in effect for seven years without challenge or problem–that wasn’t exactly a winning argument.

The most audacious claim made by those who opposed the new language, however, was that the standard religious exemption–specifying that the provision would not apply to churches and religious institutions–was inadequate because it would not protect “religiously motivated” discrimination. This is similar to other arguments we’ve been hearing lately: that allowing female employees access to contraception violates the religious liberty of Catholic employers, or that anti-bullying legislation infringes the “free speech” rights of the bullies. The argument is apparently that I should be able to pick on gay people—or black people, or women, or Jews–if my motivation is religious. This is an argument one occasionally hears from those who still believe that the 1964 Civil Rights Act was a violation of their individual rights.

There were two hearings: a committee meeting that began at 4:00 pm and the Council meeting, which began at 7:00–and lasted until 1:00 a.m. (And you wondered why there was no blog post this morning!) The hearings were Democracy In Action. (Please note capitals!)

I’ve been to similar debates before, and I fully expected that the conservative churches would bus in lots of their parishioners in order to dominate, if not fill, the chamber. I was pleasantly surprised to see that the “good guys”–wearing big blue paper buttons provided by Indiana Equality–vastly outnumbered the folks wearing red stickers emblazoned with “No Special Rights.”

I was also impressed with the testimony of the very long line of supporters–beginning with the young Mayor, Pete Buttigieg, who began the public testimony portion of the hearing with a brief but powerful speech about the importance of being an inclusive community and doing what is fair and right.

There was a tall, elderly African-American woman who identified herself as a grandmother, and told the councilors they needed to “do what’s right.” There was a representative of the AFL-CIO, who delivered an impassioned plea for inclusion and equality. A young service-member back from two tours in Afghanistan looked straight at the members of the council and said,  “I’m sitting in the front row, right there.” (He pointed to his seat.) “If you vote tonight to tell me that I am not entitled to the same rights I fought to protect for all Americans, then I want you to come look me in the face and tell me why.” There were several ordained ministers, and a bible scholar from Notre Dame, all contesting the notion that being “Christian” meant opposing equality for GLBT citizens.

Those who testified were young and old, black and white, gay and straight. (A surprisingly large number, in fact, were straight.)

The response by opponents was predictable–and much as they tried to argue on legal and policy grounds, the inevitable ugliness soon emerged to discredit them. It was the parade of the “usual subjects”–this is a “Christian Nation,” sexual orientation is a choice, same-sex relationships are “disordered” and “immoral,” protecting GLBT people from discrimination will increase the incidence of AIDS. A nurse graphically described  medical problems she attributed to anal sex (the “ick” factor). Several people asserted that the measure would “promote” homosexuality and the dreaded “gay agenda.”

And I’ve never heard so much talk about who will use which restrooms.

Virtually all of the testimony from opponents was based upon religion: the grandmother who assured the council that a “yea” vote would be a vote against the will of God (she evidently talked to him recently…), the used car salesman/pastor (I am not making that up!) who quoted selected bible verses, and the concluding litany by the self-described “Good man of God” who threw the kitchen sink at the issue: gays cause disease, sin and early death, and they need to repent. Reparative therapy works. It’s a choice. And repeatedly, that prohibiting him from firing gay people, telling him he couldn’t refuse to rent an apartment to a gay person, would deprive him of his constitutional right to  religious liberty.

The council voted 6-3 to amend the Ordinance. I’m not sure who was more persuasive–those of us who supported the measure, or the homophobes who demonstrated why it was necessary.

Democracy worked.

Comments