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Published: Thu, 26 Apr 2018 00:00:00 -0400

Last Build Date: Thu, 26 Apr 2018 12:12:35 -0400


Joy Reid Blames Mystery Hackers for the Anti-Gay Stuff on Her Old Blog

Wed, 25 Apr 2018 14:15:00 -0400

To the extent that I know who MSNBC host Joy Reid is, it's generally due to some really dumb tweets like this one: "Classical liberal" is an accurate term for a person who supports New Deal economics and social modernity but does not identify as socialist — Joy Reid (@JoyAnnReid) November 5, 2017 To be honest, it wasn't until I started getting pulled into libertarianism many years ago that I even heard the term "classical liberal" myself. But I also wouldn't presume to confidently define terms that I'm unfamiliar with. It's not clear if she even knows how wrong she was, despite the reams of responses from people correcting her, and the tweet remains online. But she has deleted some decade-old blog writing from when she was a radio host in Florida, and now it's coming back to haunt her. Mediaite has taken note of some homophobic posts from Reid's blog back around 2005 through 2007. Rather than taking responsibility for the posts and apologizing, Reid, via a cybersecurity consultant, is claiming that the now-defunct site was hacked or somehow manipulated to make it appear that she had written commentary that indicated discomfort with gay affection and gay marriage. Reid has an admitted history of gay-baiting from the left as a way to attack politicians on the right. She apologized back in December when old blog posts were unearthed in which she frequently speculated that Charlie Crist, a former Republican governor from Florida, was gay. She's far from the only person to make such speculations, but she did it in a nasty, sarcastic way to attack those she saw as ideological opposition. Back when those Crist posts were unearthed and exposed, she responded, "It was insensitive, tone deaf and dumb. There is no excusing it—not based on the taste-skewing mores of talk radio or the then-blogosphere, and not based on my intentions." This time, though, she's insisting the newly unearthed homophobic posts were not written by her and that somebody went through the effort to manipulate the history of the site's content—even interfering somehow with the pages archived on the Wayback Machine—in order to "taint [her] character with false information." Here is Mediaite's summary of some of the uncovered blog posts (and there's a Twitter thread by the person who unearthed the content here): A 2006 Reid Report post included a compilation of the top five "totally not gay celebrities of the year," which was a satirical attempt—albeit, a lazy one—at suggesting everyone on the list was secretly gay. Singer Clay Aiken and CNN pundit Anderson Cooper both made the list, which—if the publishing date is correct—was posted years before they had come-out publicly. In another post dated to 2005, the author said Cooper is the "gayest thing on TV" and noted that they have it "on good authority that Cooper is totally gay." He didn't come out publicly until 2012. Other mentions on the list included the stars of Brokeback Mountain, the previously noted film that the author didn't see because "two male characters having sex" was "too out there." I have no way of definitively determining whether these posts are real or fake. I certainly wasn't reading her blog at the time. But if some shadowy force was going through the effort to destroy Reid's reputation, it apparently put in the time to make sure the posts were relevant to the discussions of the time. Who remembers NBA basketball star Tim Hardaway's anti-gay comments from 2007 anymore? At The Intercept, Glenn Greenwald points out that the baiting, attacking language in the posts Reid insists are fabricated resembles the kind of language she had admitted and apologized for. Greenwald also rapped the left for ignoring the story, but that seems to be shifting. Mainstream media outlets are picking it up, particularly because the organization that handles the Wayback Machine put out a statement yesterday that it can find no evidence of tampering with their versions of the posts. Furthermore, the well-known national LGBT advocacy and support organization PFLAG has announc[...]

I Don't Want to Tell the Census That I'm Gay. Don't Erase Me.

Fri, 06 Apr 2018 15:40:00 -0400

Two parts of the upcoming 2020 federal Census have gotten a lot of people upset. First, it will ask people if they're U.S. citizens. Second, it will not ask people if they're gay, bisexual, or transgender. In all likelihood, there's an overlap: People upset about one are upset about the other, despite the contradiction. That's because they care about the Census to the extent that the answers to the questions can be used to control and influence government. Matt Welch has noted correctly that asking about citizenship is a deliberate effort to undercount illegal immigrants in order to alter the Congressional district map landscape in ways that will be more friendly to Republicans. Democrats and progressives are definitely not happy about that. For the LGBT question, the exact opposite is happening: People who want a head count of gays and transgender people believe the data will then be valuable in influencing federal policies and spending on projects that benefit LGBT people—or, more accurately, to benefit certain LGBT organizations. I blogged about this when the outrage first hit a year ago, but now there's a new round of complaints (much of it from people not checking the dates on the stories they're linking to) and some insultingly bad headlines. The Daily Beast claims "Gay and Single? Bisexual? Transgender? The 2020 Census Still Erases You." No. It doesn't. The census is still counting you. It's just not asking your sexual orientation, unless you're in a same-sex relationship. Your body will still be used to determine how many seats your state gets in Congress. I remember back in the day when it was religious conservatives who wanted to treat gay people as though we were nothing more that our sex lives. What the hell happened here? It's about the money. Here's how NPR is covering the lack of LGBT questions: "If this is about how resources are spent or given to communities and we are talking about the LGBTQ community, not everyone is married or in a relationship," says Ronald Lewis, an out gay man who is currently single. So I guess I won't be getting some check from the feds for being a single gay man. But that was never going to happen anyway. We're talking about lobbying for federal funding for particular projects. This is about pork-barrel spending. Here's a paragraph in that same NPR piece that's worth picking apart: But the questionnaire won't have a space for him and other LGBT people who are not living with a spouse or unmarried partner to indicate their sexual orientation. That means for now, there are no reliable national data about how many LGBT people live in the U.S. that can inform public policy. No, that's just simply not true. First, there is a lot of scientific polling—extensive amounts of polling—about LGBT populations across the United States. Some of it is even by the federal government, via the National Health Interview Survey. You can look at some of the data on this Wikipedia page. To the extent that those data are not reliable, they're not going to be any more reliable than data gathered by the U.S. Census. That's for the exact same reason that the data the Census collects on citizenship is sketchy: It's only as accurate as people's responses. Many people are not comfortable with telling the government their sexual orientations and will see it as a breach of their privacy. But this isn't about getting an accurate count. It's about using data to push for policies or funding for groups who claim to represent LGBT people, regardless of whether they actually do. Count this gay dude out. I'm not going to have my body used to lobby for spending that I probably don't agree with. If they ever add sexual orientation questions to the Census, I won't be answering. The purpose of the Census is to determine congressional representation. Beyond that, feel free to "erase" me from whatever other spending plans you have in mind.[...]

Will and Grace Botches the Gay Wedding Cake Fight

Fri, 16 Mar 2018 14:30:00 -0400

Granted, we shouldn't expect complex legal analysis from television comedies, even ones that have lawyers in them. But I thought that Will & Grace, of all shows, would at least grasp the basics of the conflict around conservative bakers and gay wedding cakes. Alas: Thursday's Will & Grace, in its comic pursuit of laughs connected to current gay issues, gets the entire wedding cake debate absurdly wrong in its attempt to flip the script. In "The Beefcake and the Cake Beef," over-the-top wealthy gadfly Karen, a vocal supporter of Donald Trump, is rejected by a bakery when she tries to get a cake made with "MAGA" on it for a birthday party for the president. Here's the set-up: src="" allowfullscreen="allowfullscreen" width="560" height="340" frameborder="0"> Refusing Karen is well within the bakery's rights, and it will be regardless of how the Masterpiece Cakeshop case before the Supreme Court comes out. A pro-Trump message on a cake is speech. A cake baker, a T-shirt printer, or a book publisher cannot be forced to print speech that he or she disagrees with. That's called compelled speech. The show ends up taking this role reversal to a weird and terrible conclusion. Grace, who hates Trump and all he stands for, pushes the bakery to make Karen's MAGA cake, going so far as to raise the specter of the American Civil Liberties Union (ACLU) coming after them. To its credit, the show takes the argument to its natural, terrible conclusion: The episode ends with the baker reluctantly baking a customer a cake with a swastika on it. But in doing so, the show pretty much gets everything backwards. It mentions that the ACLU has represented the free speech rights of Nazis, and this is true, but the show doesn't even grasp the basic idea that the bakery has speech rights too. When it comes to compelled speech, the ACLU would likely be defending the bakery here. The argument about gay wedding cakes is fundamentally about what counts as speech and expression. The ACLU is representing gay couples in these wedding cases, including Masterpiece Cakeshop. Their argument is not that bakers have to cook whatever cake their customers demand. They're arguing that this isn't a speech or religious freedom issue and that it's foundationally about denying service to gay people in violation of public accommodation laws. They don't see wedding cakes and other wedding products as a form of expressive speech. The writing on the cake, yes. The cake itself, no. I think the ACLU is wrong here. So does the Reason Foundation, which publishes this site: We've submitted an amicus brief supporting the bakery and arguing that custom-made wedding goods like cakes and floral arrangements count as expressive speech and therefore that the government cannot force businesses to provide them. But even some libertarians disagree. Eugene Volokh of The Volokh Conspiracy (hosted here at Reason) submitted an amicus brief supporting the opposite side. Within this dispute, though, neither side argues that a baker should be required to make any cake that any customer wants. People do not give up their rights to free speech (and more important, the right to refuse to communicate some speech) just because they've opened a business and serve the public. Everything about this debate is where those boundaries of speech sit. So Grace was completely in the wrong when she browbeat the bakery into making Karen's MAGA cake. By doing so, she treated those bakers as though they're nothing but servants with no say in what they may do—which, ironically, makes her just like Karen.[...]

Workplace Discrimination Against Gays Is Covered Under the Civil Rights Act, Says a Second Federal Court

Wed, 28 Feb 2018 12:45:00 -0500

Two federal courts have now decided that Title VII of the Civil Rights Act protects people from workplace discrimination on the basis of sexual orientation, even though the law does not specifically use those words. A third federal court had previously ruled the opposite, and the current Department of Justice does not agree that federal antidiscrimination law covers sexual orientation. So there's a good chance one of these cases will end up before the Supreme Court within the next couple of years. On Monday the 2nd U.S. Circuit Court of Appeals, which covers Connecticut, New York, and Vermont, reversed a previous panel decision and concluded, in a 10–3 opinion, that discriminating against a person on the basis of sexual orientation is a type of sex-based discrimination forbidden under federal law. The Civil Rights Act of 1964 does not mention sexual orientation, and when it was first passed it certainly was not assumed to cover sexual orientation. But over time, as court precedents and case law have hammered out the contours of what "discrimination based on sex" means in practice, the door has opened to a broader understanding of the phrase. One of those precedents, a Supreme Court decision from 1989, ruled that punishing an employee on the basis of whether he or sh exhibited stereotypical gender traits is a form of forbidden sex discrimination. That ruling is now being used to argue that anti-LGBT discrimination essentially punishes an employee on the basis of not engaging in stereotypical gender traits, as in entering relationships with somebody of the opposite sex (or in transgender cases, living as the opposite sex). The majority decision on Monday agreed with this argument, noting in part: To determine whether a trait operates as a proxy for sex, we ask whether the employee would have been treated differently "but for" his or her sex. In the context of sexual orientation, a woman who is subject to an adverse employment action because she is attracted to women would have been treated differently if she had been a man who was attracted to women. We can therefore conclude that sexual orientation is a function of sex and, by extension, sexual orientation discrimination is a subset of sex discrimination. With this ruling, the 2nd Circuit is on the same page as the 7th Circuit, which covers Indiana, Illinois, and Wisconsin. The 7th Circuit ruled in a similar fashion for similar reasons last spring. But this ruling is at odds with the 11th Circuit Court, which covers Alabama, Georgia, and Florida, and which has ruled that the Civil Rights Act does not cover sexual orientation. The Supreme Court had the opportunity to hear an appeal of the 11th Circuit case and settle the matter, but in December it turned the case away. Now we have two federal districts disagreeing with a third. Furthermore, we've got the Department of Justice at odds with the U.S. Equal Employment Opportunity Commission, which has been supporting the argument that the Civil Rights Act covers workplace discrimination on the basis of sexual orientation and gender identity. At some point the Supreme Court is going to have to take a case to hear this argument. It seems untenable for workplace discrimination against LGBT people to be a violation of federal law in New York but not in Georgia. This isn't about a difference in what classes are covered by each state's own laws. This is an inconsistent application of federal law.[...]

Brickbat: Indonesia Isn't for Lovers

Tue, 27 Feb 2018 04:00:00 -0500

(image) The government of Indonesia looks to be aiming to outlaw gay sex and sex outside marriage. The head of a panel set up to update the nation's criminal code says there is consensus to recommend those changes "but only if one of the sexual partners or their family members report the crime to police."

Everything You Wanted To Know About The Volokh Conspiracy: Podcast

Wed, 13 Dec 2017 09:05:00 -0500

"Intellectual honesty isn't just refraining from lying," says UCLA law professor Eugene Volokh in the newest Reason Podcast. "It's mentioning the arguments against you and explaining why you think that they're mistaken, as opposed to just omitting them, hoping that the audience isn't going to catch on." Volokh is the founder of The Volokh Conspiracy, "one of the most widely read legal blogs in the United States" [which] "has more influence in the field—and more direct impact—than most law reviews." The blog is written by mostly libertarian and libertarian-leaning law professors and court watchers, so we're excited as hell at Reason to now be hosting the Volokh Conspiracy on our website. It will remain editorially independent from Reason, though all of our readers will find much of interest and value in its content, which ranges from in-depth yet accessible glosses on the most important legal cases of the moment to disquisitions on pop culture. Volokh explained to me a few weeks ago that the blog began chafing under its home at The Washington Post partly because of that publication's paywall and partly because the newspaper would censor curse words even when they appeared in court documents that Volokh conspiracists were analyzing. When Volokh suggested would be a good home for the blog, I instantly agreed, only adding that we would insist on publishing curse words even when they weren't strictly necessary. In a wide-ranging interview about The Volokh Conspiracy, Volokh discussed the site's aims, why he thinks the government is sometimes right to force business owners to serve customers they don't like, and his high opinion (so far) of Donald Trump's appointments to the federal judiciary. In an age of deep polarization and intellectually mendacious debates, the Volokh Conspiracy remains a straight shooter when it comes to pursuing what its contributors see as the truth. "I hope even our libertarian readers appreciate that," says Volokh, "because then they know that when we do take a view that they agree with more, that's because we really, sincerely believe it and think it's the best argument, and sometimes perhaps they see that there are some points in which conservatives, or even liberals or moderates, might be more correct than the libertarian orthodoxy." Audio production by Ian Keyser. Subscribe, rate, and review the Reason Podcast at iTunes. Listen at SoundCloud below: src="" width="100%" height="300" frameborder="0"> Don't miss a single Reason podcast! (Archive here.) Subscribe at iTunes. Follow us at SoundCloud. Subscribe at YouTube. Like us on Facebook. Follow us on Twitter. This is a rush transcript. Please check any quotes against audio to ensure accuracy. Nick Gillespie: Today, we're talking with Eugene Volokh. He's a UCLA law professor and perhaps better known as the proprietor of The Volokh Conspiracy, a long-running legal group blog that I am excited to announce is coming to After being its own site and then being perched at The Washington Post for a long time, it is now coming to Eugene, thanks so much for talking to us. Eugene Volokh: Thank you very much for talking to me. Gillespie: Let's talk about The Volokh Conspiracy, which is obviously the premier group legal blog on the planet, I'm willing to say. There are, I guess, certain parts of Africa and some of the 'Stan' countries, I'm not familiar with their law blogs, but I'm pretty sure that The Volokh Conspiracy is still big there, too. What is the aim of The Volokh Conspiracy, for listeners or readers of Reason who may not be fully familiar with it? Volokh: Sure. We're mostly law professors, and we blog mostly about law. We also blog about wha[...]

Supreme Court Won't Decide Whether Civil Rights Act Bans Anti-LGBT Discrimination

Mon, 11 Dec 2017 16:45:00 -0500

(image) The Supreme Court will not yet step in to rule on whether federal laws against discrimination on the basis of sex also forbid discrimination on the basis of sexual orientation.

Today the top court declined to hear a lawsuit from a woman in Georgia who claims she was harassed and forced out of her job as a hospital security guard because of her sexual orientation. Lambda Legal, the LGBT-issue-focused legal group that represented her, argues that this violated Title VII of the federal Civil Rights Act of 1964.

That law does not explicitly mention sexual orientation as a protected category, and for much of its history it was treated as though orientation were not included. Many states have chosen over time to add sexual orientation and sometimes gender identity to their own discrimination laws. But Georgia has not.

There is, however, a Supreme Court precedent—established in 1989's Price Waterhouse v. Hopkins—that discrimination based on whether a person expresses stereotypical masculine or feminine behaviors counts as sex-based discrimination. In this security guard's case and similar cases, lawyers argue that discrimination over sexual orientation is rooted in sex-based stereotypes about how males and females should look and behave, and that Title VII therefore covers it after all.

This view of the law does have some federal court rulings supporting it, but it has not made it up to the Supreme Court for a final decision. The interpretation played a significant role in the Obama administration's decision to tell schools they must accommodate transgender students' restroom and locker room choices. The issue of transgender accommodation in schools was heading to the Supreme Court, but when Attorney General Jeff Sessions took over, the Department of Justice reversed its stance, taking the position that federal discrimination laws do not cover sexual orientation or gender identity. Tthe Supreme Court subsequently punted the bathroom case back down to the lower courts, leaving the matter somewhat unsettled as a matter of law.

An 11th Circuit Court of Appeals panel rejected the Georgia woman's claim in March. In April, the 7th Circuit Court of Appeals, which covers Indiana, Illinois, and Wisconsin, determined the opposite—that the Civil Rights Act does prohibit discrimination against gays and lesbians. So there is a split in federal court rulings, making the Supreme Court's decision not to hear the case a bit of a surprise.

The Supreme Court did not indicate why justices are declining to take the case. A representative from Lambda Legal said in a statement that they're going to keep pushing to get the issue in front of the Supreme Court. Unless Congress passes a law settling the matter one way or the other, this seems likely to end up before the Supreme Court eventually.

These Three Cases Define This Month at the Supreme Court Term: Podcast

Fri, 08 Dec 2017 14:45:00 -0500

The Supreme Court's docket is jammed with important cases if you care about individual liberty and limited government, none more so than Masterpiece Cakeshop v. Colorado, which pits religious expression against anti-discrimination laws, Carpenter v. United States, a case with massive implications for warrantless surveillance and tracking, and Christie v. NCAA, which challenges the ability of the federal government to "commandeer" state officials. In the latest Reason Podcast, Nick Gillespie talks with Senior Editor Damon Root, the author of the widely praised Overruled: The Long War for Control of the U.S. Supreme Court, about significance of these cases and their likely outcomes based on recent oral arguments. Root also analyzes how new Associate Justice Neil Gorsuch is likely to influence the decisions and how Donald Trump's picks for the federal judiciary are shaping up. Audio production by Ian Keyser. Subscribe, rate, and review the Reason Podcast at iTunes. Listen at SoundCloud below: src="" width="100%" height="300" frameborder="0"> Don't miss a single Reason podcast! (Archive here.) Subscribe at iTunes. Follow us at SoundCloud. Subscribe at YouTube. Like us on Facebook. Follow us on Twitter. This is a rush transcript—check all quotes against the audio for accuracy. Nick Gillespie: Today we're talking with Damon Root. He is a senior editor at Reason and he is also the author of Overruled: The Long War for Control of the US Supreme Court. And we're going to be talking with Damon today about the Supreme Court. The cases that are in front of it right now. And what is the likelihood that Neil Gorsuch, the newest associate justice is going to change the balance of power or maintain the status quo. Damon, thanks for talking. Damon Root: Thank you. Gillespie: So, what are the biggest and most important cases that you're tracking this season? Root: Well, I'd say the three biggest that are in front of the court right now, we have the gay marriage wedding cake case, we've got a case called Carpenter v. United States, which is about the Fourth Amendment and the warrantless acquisition of cellphone data by the government. The ability of the government to basically track your whereabouts with historical cellphone data, using records from cell towers and whether or not that's a Fourth Amendment violation. And then this case out of New Jersey, Christie versus NCAA, which is a 10th Amendment federalism case dealing with a federal law that basically makes it illegal for the states to legalize or in this case partially legalize, sports gambling. Gillespie: All right. Well, let's let's start with the gay wedding cake, and the baker. Should, as I think it was Austin Petersen the libertarian who is running for the Libertarian nomination, Libertarian Party nomination for president put it, should a Jewish baker have to bake, I guess, a homophobic Jewish baker have to bake a gay Nazi wedding cake? What is going on there? What are the basic facts of the case? And where do you see it going? And we just heard oral arguments about that as well. Root: The basic dispute is that this baker, his argument is that by being forced to create a custom wedding cake for a same sex marriage, that the government and the state, in this case the state of Colorado, is compelling him to speak. He has sincerely held religious beliefs and disapproves of same sex marriage for these sincerely held religious beliefs and to be compelled to create a custom wedding cake for gay marriage is his compelled speech. The government is forcing him to speak, he's an artist. He expresses his artistic view for the cake. Gillespie: Yeah. So is this a [...]

Brickbat: Kiss This

Thu, 07 Dec 2017 04:00:00 -0500

(image) Police in Tanzania have arrested a woman, who wasn't identified by media, after video of her kissing another woman at a party was shared on the Internet. Homosexuality is a crime in Tanzania carrying up to a life sentence, and the government has cracked down on homosexuals since President John Magufuli came to power in 2015.

Kentucky Top Court to Consider Shop's Refusal to Print Gay Pride T-Shirts

Wed, 06 Dec 2017 13:15:00 -0500

(image) Kentucky's Supreme Court has agreed to hear a case about whether a T-shirt shop owner can decline to print gay pride shirts.

This case has been winding through the state courts for years. Way back in 2012, Hands On Originals refused to make T-shirts for a gay pride event in Lexington because the owner had a religious objection with printing anything with a pro-gay message. The city's public accommodation ordinances prohibit discrimination on the basis of sexual orientation, and the Lexington-Urban County Rights Commission ruled that the shop had violated this law.

As a matter of law, the commission was completely wrong. Forcing a T-shirt maker to produce a message and particular images for a customer is a clear and extremely obvious example of compelled speech.

Lower court rulings in Kentucky have already made it clear that antidiscrimination laws cannot be used to force a T-shirt company to print messages or symbols it finds offensive or disagree with. This is not a case about discriminating against gay people. It's a case where the government is trying to force a private business to distribute a message against its will.

Do not be surprised when the commission loses this case and loses badly. During the oral arguments yesterday for Masterpiece Bakeshop v. Colorado Civil Rights Commission, the justices spent much of the time debating and analyzing hypotheticals about whether cakes themselves are artistic expressions and therefore "speech." They discussed whether Colorado could force a baker to include a rainbow or a cross on a cake regardless of his or her feelings about such symbols.

Colorado had previously determined that a bakery could refuse to write on a cake Bible passages the bakers found to be offensive, so clearly even Colorado believes there were limits to what the government can compel bakers to make.

Even the justices who seem most inclined to rule against Masterpiece Cakeshop yesterday (by which I mean the more liberal justices, such as Ruth Bader-Ginsburg and Sonia Sotomayor) were clearly concerned with crafting a decision that protects people from being compelled to communicate a message they find offensive. The justices all recognized that the Masterpiece case is not merely about a business refusing to serve gay people; it was also a case about compelled speech and artistic expression.

Now, whether they'll decide that creationg a wedding cake is an act of artistic expression is very much up in the air. Yesterday's oral arguments, in my eyes, didn't give a solid indication of how the court will ultimately rule. And as Reason's Stephanie Slade (who attended the hearing) wrote yesterday, the ruling may well be very narrow and tailored to avoid establishing a broad precedent.

But in the Kentucky case, the precedents are already there: The government cannot use antidiscrimination laws to force a T-shirt shop to print messages it finds offensive. I would be absolutely shocked if the shop lost this case.

Can States Compel You to Bake a Cake Against Your Will? The Supreme Court Will Decide.

Tue, 05 Dec 2017 16:05:00 -0500

If cake artistry counts as speech, what doesn't qualify—and how do you tell the difference? That was the essence of the question the Supreme Court asked this morning during oral arguments in Masterpiece Cakeshop v. Colorado Civil Rights Commission. The case centers on whether a state may, in the interest of preventing discrimination, require a private baker to produce a custom wedding cake for a same-sex marriage celebration. As Jack Phillips, the baker in question, put it yesterday in a USA Today op-ed, his creations are "not just a tower of flour and sugar, but a message tailored to a specific couple and a specific event—a message telling all who see it that this event is a wedding and that it is an occasion for celebration." Such a message in the case of a gay union, he wrote, "contradicts my deepest religious convictions." His lawyers argue that nonetheless forcing him to "sketch, sculpt, and hand paint" a cake, as the state civil rights commission has done, is "compelled speech" and a violation of his First Amendment rights. But wouldn't the same logic, the justices wanted to know, permit someone to turn potential clients away based on their race or religion as well? Could someone refuse to make a birthday cake for an African-American child by saying his religion tells him it's wrong to "celebrate black lives"? This is an important legal question, because unlike sexual orientation, race and religion are protected classes at the federal level—and laws against discrimination on those grounds have been frequently upheld. (In 1983, for example, the Court ruled that Bob Jones University could not claim a religious exemption to government desegregation efforts.) If Phillips' challenge to the Colorado rule necessarily implicates widely accepted decades-old protections against other forms of discrimination, it stands little chance of succeeding. Like it or not, the Court is not about to throw out a key provision of the Civil Rights Act. On the other hand, if there is some aspect of the Colorado policy that clearly separates it from (and makes it more egregious than) the laws that came before, the justices might be willing to side with the cake artist. Thus, their frequent attempts to get Phillips' lawyers to narrowly define a theory about when the state can or can't butt in. "What is the line?" Justice Stephen Breyer asked at one point. "The reason we're asking these questions is because obviously we want some kind of distinction that will not undermine every civil rights law." It wasn't just the baker's legal team that was pressed to state a limiting principle. When the attorneys representing Colorado took the floor, they were immediately interrupted with similar queries. Is there any form of compelled expression, the justices wanted to know, that would in the state's view cross the line? If the government can require you to make a cake against your will, what can't it do—and how do you tell the difference? Could a state force Catholic Legal Services to represent a same-sex couple in a wedding-related dispute, Chief Justice John Roberts asked, since the nonprofit happily represents heterosexual couples in similar situations? What about a case that involves words and not just images, Justice Ruth Bader Ginsburg suggested—would Colorado say a baker must spell out "God Bless the Union of Charlie and David" in frosting? Justice Samuel Alito wondered if a writer who gets paid to pen wedding vows for couples could be made to do so for a gay marriage. If any of these regulations fail, the justices were implicitly asking, what makes the Colorado law different? And if all these regulations are licit, well, what good is the Constitution? The Supreme Court is left with something its members clearly see as a difficult task: defining the contours of a state[...]

Supreme Court Today Mulls Whether Bakers Can Be Forced to Make Gay Wedding Cakes

Tue, 05 Dec 2017 07:50:00 -0500

This morning the Supreme Court will be hearing arguments in a case that may determine whether businesses providing services for weddings— like bakers, florists, photographers—may decline to provide goods and services for same-sex couples based on their religious objections to gay marriage. In Masterpiece Bakeshop Ltd. vs. Colorado Civil Rights Commission, bakery owner Jake Phillips was ruled to have violated the state's anti-discrimination and public accommodation laws by declining to make a wedding cake for a gay couple. Phillips has countered that his speech is being compelled and his religious freedom is being violated by being forced by law to produce a cake for the couple. There will be some complicated questions before the court: Do religious freedom protections extend to decisions by a business not to serve certain customers? Is refusing to serve gay couples getting married fundamentally different from rejecting gay people entirely? Is baking a cake or creating a bouquet of flowers fundamentally an act of speech or artistic expression protected by the First Amendment? Is providing goods and services to a gay couple getting married the equivalent of recognizing and supporting same-sex marriage? The American Civil Liberties Union is representing the gay couple. The Alliance Defending Freedom represents the bakery and its owner. The Department of Justice under Attorney General Jeff Sessions has declared support for Phillips. The Reason Foundation (the nonprofit that publishes and Reason magazine), joined the Cato Institute and the Individual Rights Foundation in an amicus brief supporting Phillips. The brief argues the court should consider the creation of cakes and floral arrangements a form of expressive speech and urges the court to resist the mandate to provide these goods and services. Not all liberty-minded legal experts agree. Law professors Eugene Volokh and Dale Carpenter (of The Volokh Conspiracy group blog) have come down on the opposite side with a brief supporting the state of Colorado. They argue the act of cake-baking has not typically been seen as a form of expressive speech that should be protected by the First Amendment. This matters to Volokh and Carpenter, having previously argued that a wedding photographer should not be forced to provide services for a same-sex wedding because photographs and photography are recognized as a form of expression. Carpenter further explained to Reason in an email the circumstances of the Mastershop case encouraged them to align with the opposite side: "The particular facts of the case show a 20-second conversation where the baker said 'no' before even learning what the customers might want beyond a generic wedding cake. There was no discussion of words, images, or symbols. In our view, that's stretching the protection of 'speech' too far." Libertarians may be frustrated with the Supreme Court's decision not to address freedom of association between private businesses and customers. There is very little evidence the court will consider the larger concept of if, when, or how states or cities determine when businesses are allowed to reject customers. Government, in my opinion, should have to show a serious, significant, widespread problem threatening people's livelihoods before considering restricting the right of a business owner to refuse to associate or contract with certain customers. Wedding services do not, by any means, fall into this category of concern. I predict a close, narrowly tailored ruling, but I'm still undecided on which direction. Reason's Stephanie Slade will be at the court today listening to arguments. Expect a follow-up post later today about the nature of those arguments and the mood of the court.[...]

Here’s What Happens When You Accuse Michael Moynihan of Being in Denial About NAMBLA Because Maybe He’s Gay

Fri, 17 Nov 2017 14:17:00 -0500

By every account I've seen, including his own, Robert Mariani got a bum deal from the Daily Caller, the conservative website that relieved Mariani of his opinion-editor duties after he solicited a column from controversialist Milo Yiannopoulos about Kevin Spacey. So we invited the freshly unemployed young man onto The Fifth Column, the weekly podcast (and Sirius XM POTUS program) featuring Kmele Foster, Michael C. Moynihan and myself, to talk about this specific experience, ruminate on the potential pitfalls of skirting up to the acceptability edges of opinion journalism, and reflect on the values (or lack thereof) of publishing Milo and similar outrage-inducers in the first place.

It was on the latter point that things went pear-shaped. Moynihan asked Mariani what useful perspective Yiannopoulos brings, Mariani asserted that it was worthwhile to note that in "the '70s and '80s, there were NAMBLA floats at every single gay-pride parade," Moynihan disputed that assertion with some vigor, and we were off to the races. Here's the whole clip; fireworks are teased near the top, but the exchange really gets started around the 12-minute mark:

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Some related reading:

* Me, on trolls vs. velvet-ropers

* Robby Soave, on Milo's "Sad, Aborted Free Speech Week Disaster at Berkeley"

* Elliot Kaufman, in National Review, on how "Campus Conservatives Gave the Alt-Right a Platform."

And here's Moynihan doing a Vice News piece on the fading provocateur himself:

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Australian Voters Say Yes to Gay Marriage Recognition (But There's More to Come)

Tue, 14 Nov 2017 19:50:00 -0500

(image) The results of Australia's mail-in referendum on same-sex marriage are in, and its citizens have significantly declared they would like to see their gay brothers and sisters tie the knot.

In the end, 61.6 percent of voters said yes to legally recognizing same-sex couples. And the country saw nearly 80 percent of its eligible citizens mail back their ballots.

But it's not entirely a done deal. This was a non-binding referendum, and does not actually force the country to recognize gay marriages. The country's Parliament is still going to have to vote to make it legal.

That's kind of what the rather unusual election was about. The more conservative component of the country's ruling coalition remained officially opposed to same-sex marriage recognition and would not allow its members to vote their consciences and defy the party's position. The polls though, showed that Australians widely supported same-sex marriage recognition. So the ruling government called for this nationwide referendum to ask the citizens one single question: Whether to legally recognize same-sex marriage.

This yes vote will now give members of parliament the political cover to go ahead and change the law. Prime Minister Malcolm Turnbull said he'll bring a bill before the Parliament before Christmas. While it appears same-sex marriage is inevitable, there's going to be a familiar-to-Americans fight over what sort of protections to include to account for private religious objections to recognizing same-sex marriages. Stay tuned for a new round of wedding cake wars, perhaps.

Brickbat: Get This Straight

Thu, 09 Nov 2017 04:00:00 -0500

(image) Camille LeNoir had a job offer from then-New Mexico State University womens basketball head coach Mark Trakh, her former coach at the University of Southern California, to work for him as an assistant. But two days before she was to leave for New Mexico, Trakh called and said he'd seen a video online in which LeNoir said she was no longer gay. In fact, she said she is now a Christian and believes homosexuality is wrong. Trakh rescinded the job offer.