Tag Archives: gay rights

Religious Freedom: Colorado’s sensible middle way

There have been a lot of painful back-and-forths about what the proposed state “religious freedom” laws allow. Like this one, where ABC’s Jake Trapper tries to get the sponsor of Arkansas’ original RFRA bill (which has since been watered down a little) to admit that it allows “discrimination” against a same-sex couple getting married, while the legislator will admit only that it allows bakers, florists, et al to refuse to “participate in the message”.

There actually is a sensible in-between position, and I doubt a new law was necessary to allow it, because it was already embedded in the judge’s decision in the 2013 Colorado bakery case, as I noted last week.

There is no doubt that decorating a wedding cake involves considerable skill and artistry. However, the finished product does not necessarily qualify as “speech,” as would saluting a flag, marching in a parade, or displaying a motto. … [The baker] was not asked to apply any message or symbol to the cake, or to construct the cake in any fashion that could be reasonably understood as advocating same-sex marriage. [my emphasis]

Let me take this out of the gay-rights arena with a hypothetical example: Suppose I represent an atheist group that is about to celebrate its tenth anniversary. I go to a baker and ask for a cake. Suppose I want him to write “God is Dead” on the cake, and he refuses. If I sue, then I believe he should win the case, because his freedom of speech is violated if he’s forced to write something he doesn’t agree with.

But now suppose we didn’t get that far: As soon as I say why I want a cake, the baker responds, “I’m not going to make a cake for an atheist group.” All I want is a cake with a 10 on top of it, and he says no. Now if I sue, I believe I should win, because the baker is discriminating against atheists as a religious group. In other words, a business open to the public should be (and I believe is, without any new religious-freedom laws) free to refuse to endorse an idea, but it should not be free to refuse service to people merely because they practice or promote that idea.

Colorado followed that principle again this week when it upheld the right of a baker not to make an anti-gay cake:

The complaint against Marjorie Silva, owner of Azucar Bakery, was filed by Castle Rock, Colo., resident Bill Jack, who claimed Silva discriminated against his religious beliefs when she refused to decorate a cake showing two groomsmen with a red “x” over them and messages about homosexuality being a sin.

Silva said she would make the cake, but declined to write his suggested messages on the cake, telling him she would give him icing and a pastry bag so he could write the words himself. Silva said the customer didn’t want that.

If conservative Christian bakers would offer gay and lesbian couples a similar compromise — “I’ll make the cake and sell you two groom figures, but you’ll have to put them on the cake yourself.” — I suspect they’d have no problems with the courts. Certainly not in Colorado, and probably not anywhere.

The loophole the Arkansas legislator is trying to wiggle through is that the Supreme Court has extended First Amendment protection to “symbolic speech” — wordless actions that make a statement, like burning an American flag. He wants to claim that providing any of the services involved in a same-sex wedding can be construed as a symbolic statement that the provider approves of same-sex marriage. So a florist’s or photographer’s right to free speech is violated if s/he is forced to make such a statement.

That’s ridiculous. It’s the kind of passive aggression I’ve pointed out before: exaggerating your sensitivity in order to control others by claiming offense. Society could not function if we allowed everyone to claim this degree of moral sensitivity. (“If you force me to hire beef-eaters in my widget factory, then you’re making me say I approve of eating beef, which violates my Hindu faith.”) So it’s an implicit claim that conservative Christians have special rights that other people don’t have.

What this situation cries out for is a “reasonable person” interpretation: Would reasonable people look at the flowers at a same-sex wedding and see the florist making a political/religious statement? (“Those must come from Belle’s Flowers. I didn’t know Belle endorsed same-sex marriage. I thought she was a Christian.”) Or would they just think “nice flowers”?

This interpretation separates actual religious-freedom issues from the bogus ones that fundamentalists are putting forward. A reasonable person would assume that the officiating minister approves of the ceremony, so the minister’s presence makes a statement that the law can’t force. But florists? photographers? bakers? caterers? No.

Discriminating Tastes

The [university’s] policy with respect to intermarriage, the record also clearly establishes, was rooted from the beginning in a belief that is derived from scripture: not that races should not associate, but that races should not intermarry.

— William Ball, lawyer for Bob Jones University,
oral argument of Bob Jones University v. the United States (1982)

This week’s featured post is “2016: Understanding the Republican Process“.

This week everybody was talking about Indiana’s new right-to-discriminate law

I’m tempted to go into detail about what’s in it and why it’s wrong, but it’s basically the same thing Governor Brewer vetoed in Arizona last year, so I’d just be repeating what I wrote then. (If you want details, an Indiana lawyer has blogged a better analysis than I could do.)

What I find most discouraging is my own reaction: The bigots are wearing me down. When Arizona was about to do it, I was outraged. Now it’s just “Oh, not this shit again.” And how the heck am I going to boycott Indiana, when I was never planning to go there anyway?


I include the quote at the top to point out that we’ve heard all these points in favor of religiously-mandated discrimination before. Then it was discrimination against blacks rather than discrimination against gays, but the arguments are exactly the same.


And no, Michele Bachmann’s husband was not refused service at an Indianapolis dress shop because the owner thought he was gay. That clever satire went over the heads of many of its readers. They might have figured it out by looking at other articles on the National Report site, like “Obama’s Executive Amnesty Will Grant Illegals Marijuana Seller Permits“.


Georgia has a similar “religious freedom” bill pending. A few days ago, opponents thought they had it blocked by attaching an amendment that takes the bill’s supporters at their word.

As in Indiana, proponents of Georgia’s bill have tried to argue that it has nothing to do with discrimination. Rep. Mike Jacobs, an LGBT-friendly Republican, decided to test this theory by introducing an amendment that would not allow claims of religious liberty to be used to circumvent state and local nondiscrimination protections. Supporters of the bill, like Rep. Barry Fleming (R), countered that the amendment “will gut the bill.”

So it’s not about discrimination, but taking discrimination out of the law “guts” it.

It’s still possible that the unamended version will be restored and passed.


Big Atlanta-based corporations like Delta and Coke have spoken out against similar Georgia laws in the past, but aren’t making a big deal about this one. ThinkProgress speculates:

Some speculate that lawmakers have intimidated these companies into silence with bills that threaten their business — with Delta serving as the example for others. Still pending in the legislature is a bill (HB 175) that would eliminate Georgia’s tax subsidy on jet fuel, which would primarily hurt Delta. Its sponsor, Rep. Earl Ehrhart (R), makes no secret of the fact that the bill is retribution for Delta CEO Richard Anderson’s recent history of weighing in on public affairs, including last year’s version of RFRA.


It’s fascinating to watch the sleight-of-hand involved in defending so-called “religious freedom” laws, particularly when defenders try to make a parallel to liberal freedom issues, either to point out our obliviousness or our hypocrisy. For example:

Shoebat.com decided to call some 13 prominent pro-gay bakers in a row. Each one denied us the right to have “Gay Marriage Is Wrong” on a cake

But this is explicitly not what the bakery court case was about. As the judge wrote:

There is no doubt that decorating a wedding cake involves considerable skill and artistry. However, the finished product does not necessarily qualify as “speech,” as would saluting a flag, marching in a parade, or displaying a motto. … [The baker] was not asked to apply any message or symbol to the cake, or to construct the cake in any fashion that could be reasonably understood as advocating same-sex marriage. [my emphasis]

Or consider this cartoon:

In what sense are Klansmen analogous to gays, or right-wing Christians analogous to blacks? Have gays been lynching right-wing Christians or burning their churches? Does a fundamentalist baker feel physically threatened when lesbians come into his shop?

And finally, Bob the Baker’s reluctance to make a KKK cake is political, not religious. A religious freedom law doesn’t help.

and a plane crash

Once again, CNN has turned into the Air Disaster Network. Every time I checked CNN this week, they were talking about Germanwings Flight 9525. Somehow, they managed to spend 24 hours a day repeating: It crashed, everybody died, and we think one of the pilots might have crashed it intentionally.

Plane crashes are the junk food of news. They seem important — and they are important to the friends and families of the people who die — but otherwise they don’t affect your life and there’s nothing you can do about them. Beyond the simple announcement that a crash has happened, it’s literally News You Can’t Use.


Zak Cheney-Rice points out that CNN could also speculate about terrorism, if the suspect weren’t white. If he were a brown-skinned Muslim, they’d be talking about little else.

This is not an argument for jumping to conclusions. Nor is it meant to accuse Lubitz of terrorism. On the contrary, it is an argument for holding people who commit mass murder to similar standards, regardless of their race or religion. If one gets to be portrayed as a complex human being, they all should be portrayed as such.

and Bowe Bergdahl

But whenever I scanned through Fox News, they were talking about Bowe Bergdahl, the soldier that President Obama got back from the Taliban in a prisoner exchange last May.

The new development this week was that the Army decided to charge Bergdahl with desertion and “misbehavior before the enemy”. For some reason, this makes the prisoner swap a “fiasco” in the conservative mind. I guess they think we should have let the Taliban keep torturing him.

and Yemen

Iran-backed rebels have taken over the capital, and the Saudis have launched air strikes against them. There’s talk of Saudi or Egyptian troops invading. The Christian Science Monitor has a good summary of the situation, which is complicated to say the least.

It’s tempting to frame this as part of the brewing regional Sunni/Shia war — Iran vs. ISIS in Tikrit is another part — but (as in Syria/Iraq) there are more than two sides. The Sunni government was helping us fight the local branch of Al Qaeda, which is also Sunni. The Shia rebels recently overran the air base we had been using for drone strikes against their enemies.

For those of you who can’t find Yemen on a map (don’t be ashamed, just learn), here’s a map.

You actually know more about Yemen than you think. Historically, it might be where the Biblical Queen of Sheba came from. More recently, its Aden harbor is where the U.S.S. Cole was attacked.

Yemen has been an oil producer, but its fields are near exhaustion. (In 2008, the World Bank predicted Yemen’s oil reserves would run out by 2017. How any government will replace that revenue is a mystery.) It’s a poor country that has been badly governed for a long time, and has a scary water problem that climate change is making worse. (Thomas Friedman went there to film Episode 8 of Years of Living Dangerously.)

In short, it’s one of those tragic situations where people are squabbling over crumbs. The victor in the civil war will just win responsibility for solving intractable problems.

and 2016

Presidential candidates are starting to show up in New Hampshire, but it’s surprisingly hard to track them down. (Ted Cruz’ visit this week didn’t show up on WMUR’s candidate tracker.) We’re at a stage in the campaign where candidates want to talk to groups they expect to support them, and don’t want possibly hostile voters showing up to ask embarrassing questions. (Not that I do that.)


Cruz officially announced his candidacy at Liberty University, the school Jerry Falwell founded. WaPo has the transcript of his speech. Next week I plan to start an intermittent series where I look at candidate stump speeches in detail, starting with that one.

and you also might be interested in …

Most of the opposition to the administration’s negotiations with Iran have hidden behind the fig leaf of the “better deal” Obama could get if he took a firmer stand. So it’s kind of refreshing to see a NeoCon honestly admit that he wants war, as former Bush UN Ambassador John Bolton did in Thursday’s NYT.

Bolton thinks bombing “should be combined with vigorous American support for Iran’s opposition, aimed at regime change in Tehran.” Because that would totally work, just like Dick Cheney’s plan to have the Iraqis greet us as liberators.

In reality, Iranians would react to an attack the way we reacted to 9-11: 90% of them would rally behind the government, while the other 10% would either shut up or get ostracized as unpatriotic. If you want to completely destroy any chance of democratic change in Iraq, do what Bolton wants.


Happy Birthday, ObamaCare. Steve Benen lists ten false predictions its critics made.


Happy trails, Harry Reid.


Two weeks ago I talked about a racist song sung on a fraternity bus. I remarked at the time that the song couldn’t be new, because the brothers in the video know the words. Now we know where they learned them: at an SAE national leadership school four years ago.

SAE also turned up in “The Hunting Ground” as a particularly dangerous frat for a woman to attend a party at. On some campuses, SAE is said to stand for “Sexual Assault Expected”.


In New York City, a crime is more likely to get on TV if the suspect is black.


As a Michigan State alum, I can’t not mention our most unlikely Final Four run ever. No one can strategize against us, because no one can figure out how we’re winning.

and let’s close with a cautionary tale

If you take your girlfriend to the game, keep your eye on the KissCam.

When Hate Stays in the Closet

answering the most sympathetic and reasonable arguments against same-sex marriage


I found the Marriage Conservation Facebook page when one of my FB friends linked to something “hateful” posted there. And it’s true, you don’t have to read very far to find nasty comments cloaked in self-righteousness.

But that’s not what I found interesting.

In general, I try to discourage my friends from winding themselves up by seeking out other people’s bile. Once in a while I run into some blessedly innocent person who doesn’t understand the depth of irrational hatred in the world, and who (sadly) needs to be disillusioned a little. But I believe that for most of us, the idea that there are crazy, nasty, ugly people on the other side comes to mind far too easily.

What’s harder to hold in mind is all the good, decent, well-meaning people who are trying their best to do the right thing, but happen to believe something different than I do or you do.

There always are such people, and they often form the majority of the opposition. This is true even if you are 100% right. Human beings are fallible, we’re loath to discard familiar attitudes, and the opportunities for rationalization to derail clear thinking are innumerable. (That’s true for me and the people who agree with me, too.) So recognizing the fundamental humanity of your opponents doesn’t mean you have to compromise with them or pretend that their points have more validity than you think they really do.

Failing to see the well-intentioned people on the other side is also counter-productive. Because the more an argument becomes dominated by hate and angry condemnations of hate, the more convinced the well-meaning people will be that they must be right. After all, if the points they find convincing were answerable, surely people would be answering them, rather than tarring them by association with the bigots or the self-righteous types whose best argument is something like “I just talked to God and He agrees with me.”

So let’s consider some of the points that the more reasonable folks who post to Marriage Conservation find compelling. There are basically two types: testimonies and statistics.

Testimony. One kind of article that has been showing up more and more often lately is the testimony of a young adult raised by same-sex parents. Marriage-equality advocates been using such testimonies effectively for some time, and Justice Kennedy (who is likely to be the deciding vote when the Supreme Court rules on this issue later this year) has said:

There are some 40,000 children in California, according to the Red Brief, that live with same-sex parents, and they want their parents to have full recognition and full status. The voice of those children is important in this case, don’t you think?

So naturally, the other side has found its own testimonies: Not every child raised by a same-sex couple believes in marriage equality. A good example is Katy Faust’s “Dear Justice Kennedy: An Open Letter from the Child of a Loving Gay Parent“.

I write because I am one of many children with gay parents who believe we should protect marriage. … I’d like to explain why I think redefining marriage would actually serve to strip these children of their most fundamental rights.

Faust goes on to say that she loves her mother and her mother’s partner, but the debate about marriage shouldn’t hinge on “lessening emotional suffering within the homosexual community”

This debate, at its core, is about one thing. It’s about children.

“There is no difference between the value and worth of heterosexual and homosexual persons,” Faust writes.

However, when it comes to procreation and child-rearing, same-sex couples and opposite-sex couples are wholly unequal and should be treated differently for the sake of the children.

When two adults who cannot procreate want to raise children together, where do those babies come from? Each child is conceived by a mother and a father to whom that child has a natural right.

She then talks about “the missing parent”. In her case she was raised by two mothers, but her parents’ divorce distanced her from her father. The authenticity of that yearning is what gives her testimony its emotional punch. I’m sure that when same-sex-marriage opponents read her article, they come away with a strong desire to protect children like Katy.

But … what does her testimony have to do with same-sex marriage? The problem here is divorce, not gay or lesbian relationships. Children of divorce often miss their non-custodial parent. It’s a sad situation, whether the custodial parent stays single or re-marries someone of either gender.

If you follow Faust’s argument where it logically goes, rather than just to the place that’s politically expedient, you’ll pay no attention to same-sex marriage and instead work to make it much harder for parents to divorce, and to force men to marry women they get pregnant. That would really enforce a child’s “natural right” to both biological parents.

But no one is pushing either of those proposals, probably because you couldn’t even get support for them in religious-right churches (where divorce rates are higher than among, say, atheists) or in Bible-belt states like Louisiana and Mississippi (which have the highest birth-out-of-wedlock rates in the country).

Lying behind Faust’s argument (and many others like it) is an idealistic view of sex and child-bearing that is beautiful in its way: In the ideal world, there would be no unwanted pregnancies. Every conception would result from an act of love between two people committed to each other and to the life they might bring into the world. The parents would be mature enough and self-aware enough to make that commitment and see it through, and Life or God or Fate would cooperate by letting them live long enough to do it.

Unfortunately, though, that vision is disconnected from the world where we actually live — disconnected, in fact, from any world where anyone has ever lived. Selectively imposing pieces of that vision on gay and lesbian couples because they are an unpopular minority is unfair.

It also would be ineffective; there is no reason to believe that banning same-sex marriage would move the children of America closer to that vision in any way. In a world where no one had ever heard of same-sex marriage, Katy Faust’s parents would still get divorced and she would still grow up without her “natural right” to live with her father. And nothing Justice Kennedy does or avoids doing will fix that for future Katy Fausts.

Who redefined marriage? I keep going back to what Dan Savage told Chris Hayes a few years ago: It isn’t that gay people want to redefine marriage, it’s that straight people have already redefined marriage in such a way that there’s no longer any coherent argument for keeping gay couples on the outside.

I am one of those straight people. My wife and I have been married for 30 years, but (though we dearly love some of our friends’ children), we decided not to have a child of our own. For us, as for many childless-by-choice couples, marriage has been about forming a life-long partnership. A strong marriage partnership is indeed a good setting to raise children; but these days, whether a married couple will raise children or not is a separate decision.

Among straights, child-raising has not been the defining characteristic of marriage for at least a generation. To make it the defining characteristic again only when we consider same-sex couples is unfair.

Maybe you want to roll marriage back to the 1960s, before Governor Reagan signed California’s no-fault divorce law (or even to the 1800s, when wives couldn’t own property). If so, be honest about it and go after the people who are really responsible for the changing expectations about marriage: divorced or never-married straights with children, and married straights without children. Try using the law to impose your will on them. See for yourself how popular that would be.

Statistics. Just in time for the Supreme Court’s consideration comes a statistical study comparing children raised by same-sex and opposite-sex parents: “Emotional Problems among Children with Same-Sex Parents: Difference by Definition” by Donald Paul Sullins, a Catholic priest and a sociology professor at the Catholic University of America (the same institution from which he received his masters and doctorate).

Sullins looks at data collected by the National Health Interview Study between 1997 and 2013. His sample includes 207,007 children, of whom 512 came from households where the adults in the household were same-sex couples. (The study has no data on whether the couples were married. Given the legal situation during most of the period in question, the vast majority of them probably weren’t.) He finds that

Emotional problems were over twice as prevalent … for children with same-sex parents than for children with opposite-sex parents.

Mark Regnerus — author of a similar study a few years ago — interprets Sullins’ results to say “Kids do best with Mom and Dad.” In other words, “biology matters”; the more biological parents a child lives with, the better (on average). And since a same-sex couple at best contains only one of a child’s biological parents, it starts out at a disadvantage.

There are, of course, a number of studies that say the opposite: that all other things being equal, children raised by same-sex couples on average do as well or better than those raised by opposite-sex couples.

What the debate ultimately comes down to is what it means for all other things to be equal, because they seldom are in any literal sense. We live in a society where biological parents get the first shot at raising a child. If they are a committed couple who are willing and able to do the job, no one can stop them or even wants to stop them. So when you study children being raised by someone other than both biological parents, you are often looking at a child for whom something has gone wrong. There may have been a divorce, a death, a desertion, a parent in prison, abuse, a series of foster homes, or an involved custody battle — maybe several of those things.

If you are looking at the emotional well-being of those children as a measure of the the quality of the parenting they are receiving in their current homes, you need to compare them to similar children in other homes. If, say, my wife and I were to adopt a six-year-old from an orphanage in Indonesia, a few years later it might be fair to compare our child to other children adopted at a similar age from similar orphanages — but not to children raised from birth by American parents.

Most studies of same-sex parenting do some similar kind of data-normalization, so that, say, children of divorce are compared to other children of divorce, and so on. But Regnerus argues explicitly for not adjusting the raw data to make apples-to-apples comparisons.

You can make the children of same-sex households appear to fare fine (if not better), on average, if you control for a series of documented factors more apt to plague same-sex relationships and households: relationship instability, residential instability, health and emotional challenges, greater economic struggle (among female couples), and—perhaps most significantly—the lack of two biological connections to the child. If you control for these, you will indeed find “no differences” left over. Doing this gives the impression that “the kids are fine” at a time when it is politically expedient to do so.

This analytic tendency reflects a common pattern in social science research to search for ‘‘independent’’ effects of variables, thereby overlooking—or perhaps ignoring—the pathways that explain how social phenomena actually operate in the real world.

What he is arguing, in other words, is that same-sex couples who are raising children ought to be held responsible for how their children got into this situation, whether they had anything to do with it or not.

For example, suppose a husband deserts his wife and children for another woman, and the wife later finds a committed partner who is female. Regnerus and Sullins would assign the emotional baggage of the desertion to the wife who stayed and the woman who took on the challenge of helping her, not to the opposite-sex household of the man who actually deserted. The impact of bigotry on the same-sex household (which might have something to do with why lesbian couples on average make less money than couples that include a man) is also their responsibility, not the responsibility of those who discriminate against them.

I suspect it wouldn’t be hard to do a Sullins-type study about the emotional problems and developmental difficulties faced by children raised by black parents. Blacks parents, on average, are poorer than white parents. They have lower academic achievement, are more likely to live in neighborhoods with bad schools, and so on. Maybe those factors shouldn’t be normalized out of the statistics by which we judge black parents, because they are “the pathways that explain how social phenomena actually operate in the real world.” Maybe they should instead be arguments for not letting blacks raise children at all, or not letting them get married. Maybe solidly middle-class black couples with good educations should be considered suspect because of the statistics associated with their race.

Or not. Maybe if two men find a willing surrogate mother to bear a child for them, and then raise that child from birth to adulthood in a loving household, they shouldn’t have to answer for statistics shaped by divorce and desertion — as Regnerus and Sullins would have them do.

Magic. Lying behind the Sullins and Regnerus studies is the same kind of magical thinking that Katy Faust demonstrates: If only we made same-sex relationships more arduous, then opposite-sex relationships would miraculously improve. Through some benevolent act of God, there wouldn’t be any more unwed mothers or divorces or households so toxic that the state had to intervene. Those things are all the fault of homosexuals, so of course we shouldn’t factor them out of the statistics when we judge the children they are raising.

I’ve never met Sullins or Regnerus or talked to anybody who has, so I have no idea what motivates a person to devote his career to constructing such studies. But the people who are impressed with those studies and quote them to others, I suspect, are mostly well-intentioned folks. And if Faust is some kind of hater, she hides it really well. I can easily sympathize with her wish that her mother and father had done a better job with their marriage, so that Faust need never have gone through the disruption of their divorce.

But the problems of opposite-sex relationships belong to opposite-sex couples. Making life harder for gay people won’t solve them.

And whether it would happen in your ideal world or not, same-sex couples are raising children. Some are adopting children whose biological parents can’t or won’t raise them. Some are working with doctors and friends to conceive children that they will raise from birth. And some are keeping faith with the children they had in a previous opposite-sex relationship that failed.

In the vast majority of those cases, if they gave those children up something worse would happen to them. And if you make life harder for those couples, you can’t avoid making life harder for their children. Who would that benefit?

If you think someone would benefit, I don’t automatically see you as a hate-filled bigot. But I can’t figure out who you’re picturing. It can’t be Katy Faust, or any of the other victims of failed opposite-sex relationships. And if not them, then who?

Is the Battle For Same-Sex Marriage Nearly Over?

I hated last summer’s Windsor decision. That is, I loved the result — the Defense of Marriage Act overturned — but I hated Justice Kennedy’s mushy legal logic. What did the decision mean? How would it apply to anything beyond the specific case in front of the Court? How would it apply to state bans on same-sex marriage?

Lower-court judges wondered too. As he was striking down Oklahoma’s ban in January, Judge Terence Kern placed a subtle barb into his decision:

This Court has gleaned and will apply two principles from Windsor.

I unpacked that statement like this:

Ordinarily, a lower-court judge just “applies” principles from a higher-court ruling, rather than having to “glean” them first.

Nevertheless, judges all over the country were managing to glean something similar out of Windsor. In one federal district after another — Indiana, Utah, Virginia, Wisconsin — state same-sex marriage bans were going down. The states were appealing those decisions to the Supreme Court, but the Court did not necessarily have to make a ruling, because so far the appellate court rulings were unanimously against the state bans. If one district found them constitutional and another unconstitutional, the Supremes would have to step in. But so far that hadn’t happened.

On Monday, the Court announced that it would take advantage of its right to remain silent: It was refusing to hear the appeals. That instantly established marriage equality in the appealing states, and made virtually automatic its extension to other states in the same appellate districts: Colorado, Kansas, North Carolina, South Carolina, West Virginia, and Wyoming. (The near-automatic ruling in North Carolina happened Friday. Thursday, West Virginia officials dropped their case rather than waste time losing.)

The 9th Circuit Court of Appeals, which comprises much of the Northwest, will hear cases involving Idaho, Nevada, and Hawaii soon. Alaska’s ban went down Sunday, so it might be added to that hearing.

When the dust settles fairly soon, gays and lesbians will be allowed to marry in 30 states — 35 if the 9th Circuit joins the appellate-court consensus. Can anything stop its extension to the whole country before long?

The politics of the Supreme Court. One of the intriguing facts about the Court’s non-decision is that hearing an appeal only requires the approval of four justices, not the five it would take for the appeal to succeed. The Court’s four most conservative members — Roberts, Scalia, Alito, and Thomas — all dissented in Windsor and presumably believe in the constitutionality of state same-sex marriage bans. If they had stuck together, they could have agreed to hear the appeals. That would have stopped the spread of marriage equality at least until the Court ruled, maybe as late as June.

The only reason not to take that course is the fear that they would lose, and that Justice Kennedy would join the Court’s liberal justices — Ginsburg, Sotomayor, Breyer, and Kagan — in establishing a constitutional right to same-sex marriage in all 50 states. Similarly, the four liberal justices could have accepted the appeal and gone for the win rather than for the sizable advance the non-decision represents.

All the justices — especially Kennedy — might want the battle for marriage to play out in a more gradual, more organic way, rather than ending it in a quick thrust with the Court’s fingerprints on the knife.

And both sides can keep their victory scenarios alive, though the conservative victory scenario is shakier: If they can’t convince Kennedy to join them, the conservative justices have to hope a Republican wins the White House in 2016 and has a chance to replace Kennedy or a liberal judge with a conservative.

Nationally, marriage equality has substantial momentum, so a decision upholding it becomes less controversial by the day. And if the Court never decides, in the long run the political process will.

The legal debate. Reading the post-Windsor lower-court decisions, one conclusion is inescapable: The anti-gay side has run out of ammunition. In case after case, they have had no better strategy than to trot out the same arguments all the previous courts rejected, and hope that this judge will be more sympathetic to their cause.

Way back in Lawrence, the Supreme Court rejected the notion that mere moral disapproval (without any substantive injury to those disapproving or to society in general) was an acceptable basis for making a law (against sodomy, in that case). So “I think two men kissing is yucky” is not a rational basis for banning same-sex marriage. Similarly, “The Bible says it’s wrong” doesn’t cut it, because the Bible has no legal standing.

Since those are the actual reasons people oppose marriage equality, the legal arguments against it have always been facades. More and more, they have looked like facades, and judges have routinely knocked them down: There is zero legitimate evidence that letting same-sex couples marry harms heterosexual couples, or the children being raised by either same-sex or opposite-sex couples, or anyone else.

Looking back at the Goodridge decision (that legalized same-sex marriage in Massachusetts in 2003), it’s striking how little has changed on the anti-gay side. The arguments that were unconvincing a decade ago are still the only ones they have.

The political debate. My prediction after Goodridge has been borne out:

Personally, I expect the same-sex marriage issue to follow the same course as interracial marriage. After a few years of Chicken-Little panic, the vast majority of Americans will recognize that the sky has not fallen, and that the new rights of homosexuals have come at the expense of no one.

Focus on the Family’s James Dobson’s predictions, on the other hand, have not fared nearly so well:

Barring a miracle, the family as it has been known for more than five millennia will crumble, presaging the fall of Western civilization itself.

Same-sex marriage has been legal in my state (New Hampshire) for almost five years. And I live just across the border from Massachusetts, where it’s been legal for a decade. If the family or Western civilization is any closer to crumbling here than in heterosexual-marriage-only states like Texas or Alabama, the signs are escaping me.

Scare tactics like Dobson’s are an all-or-nothing gamble. If you can frighten people out of trying something, they’ll never find out that your visions of doom are baseless. But as soon as somebody does try it, then the sky either falls or it doesn’t.

The sky isn’t falling. The more states that implement marriage equality and the more same-sex couples that are visibly pursuing their chance at marital happiness, the more obvious it becomes that the sky is not falling. Little Bobby’s friend Susie has two Dads or two Moms, and it’s just not a problem. You’ll never be able to explain to Bobby why you want the government to break up Susie’s family.

That’s why the poll results are so age-determined. The main people against marriage equality these days are the grandparents, who don’t have to explain stuff to Bobby.

So here’s what I expect to happen as a result of this latest expansion of marriage equality: The opposition will harden in the states affected, but it will also shrink. More and more people will have a chance to observe first-hand the absurdity of the “pro-family” scare tactics.

Here’s what I don’t expect to happen: The Republican Party will not launch a crusade to get this reversed, or play up the Republican-president-appoints-an-anti-gay-judge scenario in 2016. Because nationally, that’s a losing issue. The public has turned.

The last-ditch resistance. In “Not a Tea Party, a Confederate Party“, I defined the Confederate worldview like this:

The essence of the Confederate worldview is that the democratic process cannot legitimately change the established social order, and so all forms of legal and illegal resistance are justified when it tries.

On the national level, conservatives can’t win this battle either legally or democratically any more, and the number of states where they could win democratically is shrinking every year. More and more, the national Republican leadership wants to talk about anything else — Ebola-infected ISIS terrorists crossing our Mexican border, maybe.

Republican strategist Alex Castellanos put it like this:

Increasingly, there is less room in the GOP for ‘big-government’ social conservatives, i.e., social conservatives who believe in using the power of the state to tell people whom they can love or marry. Instead, there is growing agreement, in an ever younger and increasingly libertarian Republican party, that the role of the state in prohibiting relationships should be minimized.

And northern Republican governors like Scott Walker and Chris Christie are happy to leave the issue behind.

But that pragmatic approach to politics doesn’t sit well with the older Confederate types. Mike Huckabee is threatening to leave the party if it doesn’t fight this. Other voices are calling for civil disobedience, though it’s not clear what form that would take.

The most outrageous response came from Pat Buchanan, who recalled resistance to an earlier act of “judicial dictatorship”:

In 1954, the Supreme Court ordered the desegregation of all public schools. But when the court began to dictate the racial balance of public schools, and order the forced busing of children based on race across cities and county lines to bring it about, a rebellion arose.

Only when resistance became national and a violent reaction began did our black-robed radicals back down.

Again, it’s not clear what specific acts of violence he’s calling for.

I also cited the reaction to school desegregation as an example of Confederate tactics in the modern era. And Buchanan apparently sees that relationship too (though he views it positively). He ends his article with a quote from Robert Lewis Dabny’s 1867 book A Defense of Virginia.

American conservatism is merely the shadow that follows Radicalism as it moves forward towards perdition. It remains behind it, but never retards it, and always advances near its leader. … Its impotency is not hard, indeed, to explain. It is worthless because it is the conservatism of expediency only, and not of sturdy principle. It intends to risk nothing serious, for the sake of the truth, and has no idea of being guilty of the folly of martyrdom.

Buchanan is arguing against conservatives who believe that the debate about same-sex marriage is over. Dabny was arguing — after the end of the Civil War — with those who thought that the debate about slavery was over. Dabny was a prophet of the insurgency that ultimately won Reconstruction for the South and established Jim Crow.

And he’s an example that Buchanan wants to emulate.

Who Should Be Beyond the Pale?

Maybe you heard about Brendan Eich, who briefly was CEO of Mozilla. The media’s one-line summary of his story is that Eich was hounded out of his job because he opposes marriage equality for gays and lesbians. The somewhat longer version goes like this:

  • Mozilla (says Wikipedia) “is a free software community best known for producing the Firefox web browser.” (I’ve used Firefox off and on for years, and it has been my main browser for the past few months.)
  • Brendan Eich became CEO of Mozilla on March 24. He was a co-founder of Mozilla and had been Chief Technology Officer previously. The Mozilla blog said Eich “has been deeply involved in every aspect of Mozilla’s development starting from the original idea in 1998.” Back 1998, Marc Andreessen wrote about “Brendan Eich, who single-handedly designed and implemented the scripting language known as JavaScript”.
  • The same day, the small app-development company Rarebit, founded by a married gay couple (one of whom is British and could only get permanent residency in the U.S. after marriage), blogged “It’s personal for us” and announced it would protest by removing its apps from the Firefox Marketplace.
  • On March 28 The Wall Street Journal reported that three Mozilla board members were resigning. The stated issue was not Prop 8, but that Mozilla had picked an insider rather than “a CEO from outside Mozilla with experience in the mobile industry who could help expand the organization’s Firefox OS mobile-operating system and balance the skills of co-founders Eich and [Mitchell] Baker”. The article also noted that “Some employees of the organization are calling for Eich to step down because he donated $1,000 to the campaign in support of Proposition 8, a 2008 California ballot measure that banned same-sex marriage in the state.” The Mozilla blog claims the protests came from “less than 10 of Mozilla’s employee pool of 1,000. None of the employees in question were in Brendan’s reporting chain or knew Brendan personally.”
  • Eich did in fact give the $1000 back in 2008. The public-record listing includes Mozilla as his employer, but that’s just part of the form. Mozilla did not make the contribution, authorize it, or endorse it.
  • Negative buzz developed on Twitter and other social media. By March 31, the online dating site OkCupid was greeting Firefox users with a statement that included “Mozilla’s new CEO, Brendan Eich, is an opponent of equal rights for gay couples. We would therefore prefer that our users not use Mozilla software to access OkCupid.” The statement ended with links for downloading other browsers. (If you insisted on continuing with Firefox, though, you got through.) The OkCupid move seems to have been the trigger to turn a techie Silicon Valley controversy into a mainstream story. (I have to wonder whether OkCupid’s motive was political, or if they realized what a great publicity stunt this would turn out to be. I know I’d never heard of them before, but now I have.)
  • On April 3, Eich resigned. Mozilla insists that he was not fired or asked to resign. The next day, Mozilla insider Mark Surman blogged, “Brendan didn’t need to change his mind on Proposition 8 to get out of the crisis of the past week. He simply needed to project and communicate empathy. His failure to do so proved to be his fatal flaw as CEO.” Rarebit blogged, “I guess this counts as some kind of ‘victory,’ but it doesn’t feel like it. We never expected this to get as big as it has …”

So a better summary is more like: The personal politics of an already controversial choice for Mozilla CEO drew bad publicity to the organization, so he and Mozilla amicably parted ways. It’s still not what I would call a heartwarming story, but let’s at least be accurate.

Backlash. However it really played out, the Eich Affair has turned into an opportunity for right-wingers to denounce “leftist fascists“. Kevin Williamson at National Review wrote “Welcome to the Liberal Gulag.” Over at the web site of the conservative religion-in-public-life journal First Things, Robert George predicted:

Now that the bullies have Eich’s head as a trophy on their wall, they will put the heat on every other corporation and major employer. They will pressure them to refuse employment to those who decline to conform their views to the new orthodoxy

A number of pro-marriage-equality writers used this incident to establish their centrist credentials and distance themselves from what the Brits used to call “the Loony Left“. Andrew Sullivan wrote: “The whole episode disgusts me.” Slate‘s William Saletan denounced “the new Moral Majority” and compared Eich to people who have been fired for being gay. The Atlantic‘s Conor Friedersdorf wrote two articles on the topic, arguing first that pressuring Eich to resign was a violation of liberal values, and then discussing more abstractly the question I raise in the title: When is a point of view so objectionable that good people should stigmatize it and refuse to deal with its proponents in any way? Who should be beyond the pale?

The Wide Pale. Personally, I believe in what you might call a wide pale. Ostracism and boycott have their place, but I prefer to hold them as a last resort. So I continued to use Firefox all through the Eich Affair. My pale’s limits got tested a month or two ago, when a well-known white supremacist posted comments to “The Distress of the Privileged“. Should I just delete them on principle? I decided to wait and see. He posted a few slogans, didn’t insult the other commenters, and didn’t create any disturbance requiring my intervention. The comments are still up.

The wide-pale issue is particularly important when a once-fringe movement becomes mainstream, as gay rights is beginning to. Patterns established when the movement was small and powerless need to get re-evaluated and often are not. For example, the generation of Zionists whose worldview was forged in the Holocaust had trouble taking seriously the idea that Jews could be oppressors. Or, going further back in time, the Puritans who escaped persecution in England couldn’t wrap their minds around the reality that they had become the persecuting establishment in the Massachusetts Bay Colony.

It’s over the top to say that gay rights has gotten to that point already, especially at a time when the right to marry exists in only about half the country, and states are passing laws to legitimize discrimination against gays in the marketplace. But the trends are there. Reading between the lines in the Rarebit blog (“We never expected this to get as big as it has”), I don’t think they ever envisioned themselves as the powerful side of the conflict. A constructive use of the Eich Affair would be to think these issues through.

Morality, not law. The first thing to realize about the Eich Affair is that there’s no legal issue. This isn’t about the First Amendment, because the government isn’t punishing Eich for his views. As in the Duck Dynasty flap in December, everybody involved is exercising freedom under the law: Eich freely contributed to a political campaign, his critics on Twitter and at OkCupid freely stated their objections, consumers freely decided to use or not use the Firefox browser, and Mozilla and Eich came to a free agreement that he should leave.

Of course, many of the abuses during the McCarthy Red Scare of the 1950s were expressions of freedom too. You were free to plead the Fifth Amendment when the Committee asked if you’d ever been a Communist, and all your friends and employers and associates were free to shun you afterwards.

The question is: As a culture, is this how we want to behave? Do we want to evaluate the politics of everyone we deal with, or would society be a more pleasant place if we all made a bigger effort to tolerate people we disagree with? This issue comes up every now and then on the Sift, most clearly during the Chick-fil-A boycott in 2012. In a piece I called “Is That Sandwich Political?“, I confessed to a certain can’t-I-just-eat-lunch annoyance and concluded:

[I]n general, I’m against balkanizing the economy into liberal and conservative sectors. If you really like Chick-fil-A’s food, I don’t think you should let anybody guilt you out of it … But if [Chick-fil-A CEO Dan] Cathy has left a taste in your mouth that a super-sized Coke won’t wash away, don’t let anybody guilt you about that either.

Start here: You feel what you feel. Large chunks of the economy are about giving you pleasure or making you feel good in some way. Sometimes, knowing the backstory of a product or a person ruins that good feeling and consequently ruins the product. This isn’t a rational process and you shouldn’t pretend that it is.

For example: Woody Allen movies. They’re supposed to make you laugh, but if you can’t stop wondering whether or not he sexually abused his adopted daughter, you’re not going to laugh very much. So don’t go. But it’s important to realize that this cuts both ways. Watching Ellen DeGeneres’ show is supposed to be fun. But if knowing that she’s lesbian disgusts you, you’re not going to have much fun. So don’t watch.

Part of the charm of Firefox is that you feel virtuous for using it, because you’re not helping Microsoft/Google/Apple take over the world. (For similar reasons, all the book links on the Sift go to a co-op bookstore rather than Amazon.) But if knowing that Eich was CEO messed up that good feeling for you, it made Firefox less valuable.

That’s why I have a hard time finding fault with Rarebit. As they said, it was personal for them. They were a gay couple spitting into the wind against the larger forces that had tried to keep them apart and made it hard for them to start their company. That’s a little more than just “I don’t like that guy’s politics.”

Given that you feel what you feel, though, the next question is whether you should try to get over those feelings, or instead fan them and try to engender them in others. Do you just privately decide “I’ve eaten enough Chick-fil-A in my life” or do you make a crusade out of it and try to convert others? These are the kinds of questions that become more and more important as your movement gains power and starts to have more responsibility.

The usefulness of purity standards. One point of a boycott is to bring a distant issue into everyday life. The Gallo boycott of the 1970s is a good example. The treatment of farm workers in California was easy to ignore if you were planning a fraternity party at Yale. But if some of the people you invited were boycotting Gallo wine, you had to think about it. Similarly today, eating local or organic or vegan might be a health option, but it’s also creates openings to evangelize against the factory farm system or its treatment of animals.

Having purity standards about what you use — refusing to ignore the moral backstory — can be an important way to balance the nihilism of the marketplace. Blood diamonds, slave labor, dolphin-safe tuna … the market tends to hide the moral implications of our consumption, and refusing to play along is sometimes appropriate. Also, in an era where one of the two major parties opposes regulations on principle, taking action in the marketplace may be the only way you can influence corporate behavior.

So there’s a balancing act to be done: I don’t want a fully politicized marketplace where I have to quiz the baker before eating her muffins. But I also don’t want to advocate a wall of separation between politics and the market.

Rules of thumb. I don’t think there’s a clear line between what should be politicized and what shouldn’t. But these are some rules of thumb I’m using.

  • Corporations are better targets than people. My main objection to campaign against Eich was that it had nothing to do with corporate policy. No one was arguing that Mozilla was being run in a homophobic way. By contrast, Chick-fil-A contributed corporate funds to anti-gay campaigns. So if you bought their food, you were subsidizing those contributions. (More recently, they’ve been downplaying that.) More importantly, corporations are amoral institutions, so you can’t really dialog with one. Hitting it in the bottom line may be the only way to get its attention.
  • If people are targeted, did they make themselves targets or were they ferreted out? This is why I find Eich a more sympathetic figure than Duck Dynasty‘s Phil Robertson. Robertson said a bunch of ignorant, bigoted stuff to a magazine reporter. Again, that’s his right as an American. But it also means that if you’re helping make him a celebrity, you’re helping him promote those views. It’s totally legit to decide you don’t want to do that any more. Eich, on the other hand, gave $1,000 to support Prop 8, which is something any prosperous guy with his views could do. There was no sign he intended to use his position with Mozilla as a platform to campaign against marriage equality.
  • Have attempts at dialog failed? People don’t always realize the full implications of their actions, and can change their minds.
  • Is some drastic action pending that requires you to do something? During the Wisconsin union-busting conflict in 2011, I took heat from a reader for endorsing the boycott of companies supporting Scott Walker. (I sold my stock in Johnson Controls.) I felt that Wisconsin was the beginning of a nation-wide effort to destroy public-employee unions, and a major blow against the existence of all unions. Drastic action was being taken on one side, and similarly drastic action was needed on the other. Prop 8, on the other hand, was settled by the Supreme Court last summer, and all the momentum on the issue belongs to the pro-equality side.
  • Is the view you’re objecting to so reprehensible that you can’t imagine a good person holding it? In some theoretical sense I can imagine a good person being a Neo-Confederate who defends slavery, but my mind revolts when I try to flesh out that vision. Or if you tattoo swastikas on your biceps, sorry, but you’ve lost all my sympathy. On the other hand, I can disagree strongly about abortion and gay rights without demonizing my opponents. (Up to a point. If you want to implement the Biblical injunction to have gays stoned, I can’t see you as a good person.)

If you can think of other rules of thumb for these situations, leave a comment.

Religious Liberty and Marriage Equality

Are the principles that protect religious liberty secure, or are recent court decisions steps on a slippery slope?


One of this week’s big stories was Arizona Governor Jan Brewer’s veto of S.B. 1062, “An Act … Relating to the Free Exercise of Religion“. Proponents claim that this law (and similar proposed laws around the country) is necessary to protect Christians from being forced to participate in same-sex marriage celebrations, in violation of their freedoms of conscience and religious liberty.

There’s one important thing you need to understand about this controversy: It’s symbolic. I went looking for cases where businesses were forced to deal with same-sex weddings and I found exactly five in the entire country.

  • In New Mexico, a photography business was successfully sued by a lesbian couple whose commitment ceremony (same-sex marriage being illegal in New Mexico) it refused to photograph. (I covered the ruling in a weekly summary last August.)
  • The Oregon Bureau of Labor and Industries ruled that a bakery had violated state law when it refused to make a wedding cake for another lesbian couple.
  • A judge in Colorado similarly ruled against a bakery.
  • A Vermont inn was sued for refusing to host a wedding reception for a same-sex couple, which the owners claim was a misunderstanding. The case was settled out of court, so we don’t know what a judge would have said.
  • A suit is pending against a florist in Washington.

Some writers make it sound like these are representative examples out of many, but they may well be the only instances to date.

Last June, the Pew Research Center estimated that over 70,000 same-sex marriages had been performed in the United States, plus an uncounted number of civil unions and legally unrecognized commitment ceremonies like the one in New Mexico. In all but a handful of them, people seem to have worked out whatever differences they had. Wedding planners, photographers, bakers, dress-makers, tuxedo-rental places, florists, celebrants, meeting halls, church sanctuaries … either they approved or they swallowed their disapproval or the couples took the hint and looked for service-with-a-smile elsewhere. Or maybe they found compromises they could all live with. (“I’ll sell you the cake, but you’ll have to put the two brides on top yourself.”)

In short, S.B. 1062 does not address a practical issue. Across the country, people are behaving like adults and working things out without involving the government. Governor Brewer recognized as much in her veto statement:

Senate Bill 1062 does not address a specific or present concern related to religious liberty in Arizona. I have not heard one example in Arizona where a business owner’s religious liberty has been violated.

The uproar is also symbolic on the other side. Critics of S.B. 1062 warned about “gay Jim Crow” laws, but just as there is no flood of suits against fundamentalist Christian florists, neither are large numbers of businesses waiting for the state’s permission to display “No Gays Allowed” signs. As The Christian Post pointed out, Arizona (like many other states) has no state law protecting gays from discrimination. (New Mexico does, which is why the lesbian couple won their suit against the photographers.) So outside a few cities that have local anti-discrimination ordinances, Arizona businesses are already free to put out “No Gays Allowed” signs without S.B. 1062. If any have done so, nobody is making a big deal out of it.

What this all resembles more than anything is the argument over the constitutional amendment to ban flag-burning. Actual flag-burnings are so rare that most of the amendment’s backers couldn’t cite a particular case, but they felt very strongly about it all the same. The few cases that actually exist are merely chips in a poker game; they are symbols of some deeper philosophical conflict, but mean little in themselves.

That’s not to say that philosophical conflicts are unimportant, but they are also not urgent. Because major injustices against one side or the other are not happening every day — and depending on your definition of “major injustice” may not be happening at all — we can afford to take some time to think this through calmly: What principles of religious liberty should we be trying to protect, and are any of those principles implicated in the cases that have been decided?

In my view, one basic principle is: No one should be forced to participate in a religious ritual. That’s why I don’t want teachers leading prayers in public school classrooms, especially when the children are too young to make a meaningful choice about opting out. For the same reason, it would be wrong to sue a priest who refused to perform a Catholic marriage ritual for a marriage his church did not sanction.

Some supporters of laws like S.B. 1062 (and the pending H.B. 2481) are citing this principle, but I think we need to be careful not to stretch the definition of a religious ritual. For example, civil marriage is not a religious ritual, so neither an officiating judge nor the clerk who issues a license is participating in religion. (If they were, that would seriously violate the separation of church and state.) Requiring that they do their jobs is not a violation of their religious liberty. The fact that you don’t make the laws and may disagree with them is a normal hardship of working for the government, not a First Amendment issue.

Similarly, a wedding reception is not a religious ritual; it’s a party that happens to take place after a religious ritual. Baking the cake or DJing the music or manning the bar are not sacramental roles, and do not deserve that kind of protection.

A second principle is: No one should be compelled to make a statement against his or her conscience. This was used as a defense in the Colorado bakery case. Administrative Law Judge Robert Spencer rejected it like this:

There is no doubt that decorating a wedding cake involves considerable skill and artistry. However, the finished product does not necessarily qualify as “speech,” as would saluting a flag, marching in a parade, or displaying a motto. The undisputed evidence is that [the baker] categorically refused to prepare a cake for Complainants’ same-sex wedding before there was any discussion about what that cake would look like. [The baker] was not asked to apply any message or symbol to the cake, or to construct the cake in any fashion that could be reasonably understood as advocating same-sex marriage.

So if a wedding-reception singer refused to sing some special gay-rights anthem, I would support him under this principle. But if he refused to perform at all, or refused to perform more-or-less the same collection of songs he does for everyone else who hires him, then I wouldn’t. Leading the friends and families of a same-sex couple in “The Hokey Pokey” is not a religious or political statement that should challenge anyone’s conscience.

Weighing against these exceptions is a public-accommodation principle that got established during the Civil Rights movement: If a business serves the public, then it should serve the whole public. The point of Jim Crow laws wasn’t to protect the consciences of white business owners, it was to exclude black people from the general public. If excluding gay and lesbian couples from the general public is the purpose behind refusing to serve them, that shouldn’t be allowed.

People try to fudge this principle by creating me-or-him situations. I grew up reading Ann Landers’ advice column in the newspaper. Ann used to regularly get questions like: “My good friend says she can’t come to my wedding if my other good friend is going to be there. What should I do?” As best I remember, her answer was always something like: “Invite everyone who you want to see there. If your friend doesn’t want to come, that’s her decision.” The same idea works here: Everyone should be invited to the marketplace. If you feel that the presence of gays and lesbians in the marketplace means you can’t be there, that’s your decision. No one has forced you out. (This is my answer to the U.S. Council of Catholic Bishops, who claim “Catholic Charities of Boston was forced to shut down its adoption services.”)

The other frequently raised issue has to do with venues: Will the law force my church sanctuary to be available for same-sex marriages? The idea that a sanctified site will be used for some unholy purpose strikes many people very deeply.

The case that is always cited — often not very precisely — involves a Methodist group, the Ocean Grove Camp Meeting Association in New Jersey. The OGCMA owned a boardwalk pavilion, which the judge described as “open-air wood-framed seating area along the boardwalk facing the Atlantic Ocean.” The Methodist group used the facility “primarily for religious programming”, but had received a tax exemption for the property the pavilion was on. One condition of the exemption was that the facility be open to the public. The OGCMA had a web page advertising “An Ocean Grove Wedding”, which cost $250 in rent. The OGCMA did not conduct or plan the weddings, and the page said nothing about Methodist doctrines concerning marriage.

Until the OGCMA turned down a lesbian couple that wanted to celebrate a civil union in 2007, no one could recall a wedding being refused for any reason other than scheduling. After the couple sued, OGCMA re-organized its use of the pavilion. It stopped advertising it to the public and sought a different kind of tax exemption available to it as a religious organization. The judge found:

[The OGCMA] can rearrange Pavilion operations, as it has done, to avoid this clash with the [New Jersey Law Against Discrimination]. It was not, however, free to promise equal access, to rent wedding space to heterosexual couples irrespective of their tradition, and then except these petitioners.

Recognizing that the couple mainly sought “the finding that they were wronged” and that the OGCMA had not “acted with ill motive”, the judge assessed no damages.

In other words, this example is not particularly scary when you know the details. The principle here is pretty simple: If you worry about the sanctity of your holy space, don’t rent it out to the public — which is good advice in general, irrespective of same-sex marriage. If you do rent it out, then we’re back to the public-accommodation principle.

In conclusion, I’m not seeing anything particularly alarming in the five cases (six, if you add the boardwalk pavilion case) that are motivating people to support S.B. 1062 or similar laws. Reasonable principles are prevailing, and I do not see a slippery slope.

So if you’re worried about your minister being forced to bless a same-sex wedding in your sanctuary or go to jail, don’t be. It’s not happening and nobody is advocating for it to happen. Nothing in the cases that have been decided leads in that direction.

Sam We Am

We’ve seen this movie before, we know the lines, and we know what role we’re going to wish we had played.


Last week, All-American defensive tackle Michael Sam let the world know that whichever NFL team drafts him will have the first openly gay player in American major league sports.*

This week the sports world responded, and the discussion had a quality I didn’t expect: It was old. As ESPN said when they broke the story:

In 2014, “Gay Man to Enter Workforce” has the everyday-occurrence sound of a headline in The Onion.

The objections to Sam joining the NFL rehash the ones the public just rejected in the debate over ending Don’t-Ask-Don’t-Tell and letting gays serve openly in the military. If you look further back in history, those arguments are a rehash of what Truman heard when he let blacks into the military, or Branch Rickey heard when he brought Jackie Robinson to the Dodgers. (And they’re not that different from the arguments against letting women into businessmen’s clubs or blacks into white schools.)

By now, we’ve got this conversation’s number. It’s 42.

We’re told NFL teams will avoid drafting Sam so as not to screw up their “locker room culture”. In 2011 and in 1948, people worried about military “unit cohesion” and “morale”. It was code for: “We already have bigots, and they’ll be upset.”

That code doesn’t fool anybody anymore. If bigots cause a problem, it’s on them.

We’re told players will feel oogy, because, you know … showers. We’ve heard that before: about gays in the military, and about blacks, too, if you go back that far. It’s hard to reconstruct the argument now — I guess something about blacks was supposed to contaminate whites in some way — but in 1948 it was a big deal: Young white men from Jim Crow states couldn’t even use the same urinals as black men, so how could the Army expect them to shower together?

We’re told the NFL isn’t “ready” for gay players, as if baseball had been ready for Jackie Robinson or racing for Danica Patrick. Decades ago that seemed like a good point — maybe if we prepare for a few more years everything will go smoothly — but today it’s a fat pitch, a batting-practice lob. Ta-Nehisi Coates hit it over the fence like this:

The NFL has no moral right to be “ready” for a gay player, which is to say it has no right to discriminate against gay men at its leisure

In 2014 we know how this movie comes out, and we know the lines. That’s how people you never would have picked out as gay rights advocates are able to be so forceful and eloquent. Like Dale Hansen, the sports anchor at ABC’s Channel 8 in Dallas:

Since you know the lines, you get to pick your role. We can all be Atticus Finch this time, if we want to. Former NFL receiver Donte Stallworth had the strong-but-reasonable thing down pat when he wrote this for ThinkProgress on Friday:

Michael Sam will only be a distraction if his organization, head coach, and teammates let him become one because of their own biases and lack of leadership. … In my experience with Bill Belichick, the head coach of the New England Patriots, I feel he would handle this by not making it a big deal to begin with. Bill would walk in on day one, as he does every year, and tell his players that he expected them to treat everyone in this organization with respect and a professional attitude. Anything less in that organization is intolerable.

What about the other Super Bowl coach Stallworth played for?

John Harbaugh, the head coach of the Baltimore Ravens, … [would] tell players to handle their problems in the locker room as a family would. If they had something to say, they should discuss it with each other, man to man, brother to brother, as a family. Harbaugh would tell us that if there were any issues among the team that we should hash it out in the locker room or a team meeting. If that failed, he’d tell us to come see him in his office or to go see general manager Ozzie Newsome, who has an open door policy and is always there for players to have an honest talk. Those guys would help players figure out their options or other ways to address whatever problems they had.

Those are separate ways to handle it, but they’re both effective because they both address the fundamental point: that this isn’t something that should distract players from doing the job they’re being paid to do. When you have strong leadership from your head coach and other players in the locker room, that’s an easy message to send. When you don’t, it means your problems are much bigger than a gay football player.

Usually, people give inordinate credit to the fig-leaf arguments of the status quo, and it takes a long time to see through them. But because we’ve been through this before and recently, this story has moved really fast. In just a few days, the question has flipped from “Will Michael Sam be a problem?” to “Is your team professional enough for Michael Sam?” After all, Sam’s college teammates at Missouri could handle having a gay teammate. They went 12-2 and finished the year ranked #5 in the country.** If your NFL team can’t deal with the situation as well as a bunch of amateur college kids, what’s the matter with you?

Overnight, the “manly” reaction flipped from being homophobic to having the maturity to respect your teammates, even if they’re different from you.

Before his announcement, the consensus judgment on Michael Sam was: He won’t be a superstar in the NFL, but he can play. He can help a team win games. At some point in the middle rounds of the draft, he’ll be the best player on the board.

Sam didn’t change any of that by telling us he’s gay.

So when he’s at the top of the board, the onus won’t be on him, it will be on the general managers of the teams. What are you saying, GMs, if you let him go by and draft somebody less talented? You’re saying that you think your players (who you signed) are immature and unprofessional, and that your coaches (who you hired) don’t have what it takes to handle them. You’re saying that you care more about making your job easy than about winning.

When you reach that point, NFL general manager, I’ve only got two words for you: Man up.


* Jason Collins would have had that distinction if any NBA team had signed him this year. But he was a journeyman veteran whose career might have over anyway.


** Missouri students deserve some credit too. When 14 members of the Westboro Baptist Church hate group came to campus to demonstrate against Sam, hundreds of students wearing “Stand with Sam” buttons and “We are all CoMo Sexuals” shirts formed a human wall. (Googling “como sexual” didn’t get me anything enlightening. I assume it means Missouri (MO) students together (co) to support people of all sexual preferences.)

Poor, Poor Bigots and other short notes

Whenever human rights advance, bigots feel victimized because they are no longer entitled to treat people badly. Case in point: This editorial is “concerned” about the rights of anti-gay military chaplains now that Don’t Ask Don’t Tell is history.

Glenden Brown wrote a full takedown on One Utah, so I’ll just sum up: At the root of the chaplains’ complaint is a fundamental misunderstanding of their role. Their paychecks are not issued by God or by their denominations. They work for the U.S. military and their duty is to serve our troops. If you bear that mission in mind, all their issues evaporate.

Chaplains who aren’t right-wing Christians have always felt a tension between serving the soldiers and pushing their own beliefs or the dogma of their particular sect. (Examples: this Quaker chaplain and this Unitarian Universalist.) If right-wing Christian chaplains are feeling a tension now too, that isn’t discrimination.


This weekend I attended (via the Web) Lawrence Lessig’s Conference on the Constitutional Convention, which was interesting both for outside-the-box thinking about political change and because it raised the possibility of a left/right alliance for basic reforms. (Lessig’s co-host was Mark Meckler from Tea Party Patriots.) Details next week.


Surprise! Some of the things said by the Republican candidates in Thursday’s debate were not true.

In fact, the moment that “won the debate” for Herman Cain was also the most outrageous lie of the evening: He claimed that if ObamaCare had been in force in 2006, he would have died from colon cancer because “government bureaucrats” would have delayed his treatment.

Reality: Cain is a multi-millionaire businessman with private health insurance. He will continue to have the same insurance under the Affordable Care Act. And even if insurance-company (not government) bureaucrats get in his way, nothing in the ACA prevents Cain himself from paying for whatever treatment he wants.

Kate Conway elaborates:

It’s kind of twisted that Cain uses his against-the-odds recovery to condemn a policy that could help others less fortunate than him beat similar obstacles.

And Kevin Drum draws the conclusion:

[T]his is a real problem for liberals. Sure, we cherry-pick evidence, we spin world events, and we impose our worldview when we talk about policy. Everyone does that. But generally speaking, our opinion leaders don’t go on national TV, look straight into the camera, and just outright lie about stuff. Theirs do. … It’s awfully hard to fight stuff this brazen … especially when the mainstream press no longer seriously polices this stuff, and isn’t much believed even when it does.


I used to worry that the Republican primary campaign would dominate the airwaves the way Obama/Clinton did after McCain locked up the nomination in 2008. But so far that’s working in the Democrats’ favor. Each debate offers new evidence that the GOP has left mainstream America far behind: cheering for executions, calling to let the uninsured die, and (Thursday) booing an American soldier in Iraq because he has come out as gay now that the law allows him to do so.

William Kristol reported getting an email from “a bright young conservative” saying “We sound like crazy people.” Noticed that, did you?

Crazies can infiltrate any crowd, but here’s the real problem: At none of these moments did a candidate stand up to the mob and defend basic decency. How hard would it have been to tell the gay soldier: “Although we disagree on some issues, I honor your service to our country”?


Rick Santorum’s actual answer to the gay soldier was incoherent, and raised the “special rights” canard. David Tharp refutes:

[DADT repeal] doesn’t give gay and lesbian soldiers any “special privileges;” it only allows those soldiers to be honest about who they are. Straight soldiers are allowed to wear wedding rings, talk about their spouses and acknowledge their sexuality. Now, finally, gay and lesbian soldiers have the same rights.


Conservative commentators were ready to bury Rick Perry after three bad debates, and his nationwide standing against President Obama is slipping. There was some question whether rank-and-file Republicans agreed with their commentariat, but after Perry lost a Florida straw poll to Herman Cain and a Michigan poll to Romney, maybe they do.


I ran across a lot of amusing political images this week, like this Rick Perry poster (“because George W. Bush didn’t do enough damage”). Or this pie chart explaining the consequences of gay marriage. The most amusing same-sex marriage signs are collected here.

This looks cool as a poster: “I refuse to believe corporations are people until Texas executes one.” And I loved: “They only call it class warfare when we fight back.


You should never read too much into the phase-one trials of any treatment, but this NYT story of a miraculous leukemia remission via an immune-system treatment is pretty amazing.


Pro Publica looked at the question of whether regulations kill jobs. Conclusion: Not really.


Add this to my continuing series on Libertarianism: SF author David Brin uses conservative/libertarian principles to argue against “the idolatry of property”.

For Brin, markets are a means, not an end. The Soviet failure taught him that an economy is too complicated for central control; markets allocate resources better through distributed processing. But when a handful of corporations come to dominate an economy and their CEOs all play golf together, you’re back to central control.


Jon Stewart covers the plight of “this nation’s most vulnerable wealthy”. If only a Subway mogul could find some inexpensive way to feed his family …


If you’re feeling excessively cheerful today and want fix that problem, look at Doom by TNR’s John Judis. The governments of the world are repeating the mistakes of the Great Depression, and the only policies that might turn things around are politically impossible.


Surely everybody on FaceBook has seen this by now, since it went viral sometime last week. But new Senate candidate Elizabeth Warren has captured the liberal-populist message better than anybody so far.