Published: Tue, 21 Feb 2017 00:00:00 -0500
Last Build Date: Tue, 21 Feb 2017 21:19:42 -0500
Fri, 17 Feb 2017 13:30:00 -0500Florists—at least those in Washington State—can be forced to provide their goods and services for gay weddings. That was the unanimous decision from the state's supreme court handed down yesterday. The high-profile case, which had been winding through the courts for a while, pitted Baronnelle Stutzman, owner of Arlene's Flowers in Richland, against a gay couple who had come to her seeking her flowers for their wedding. She declined, citing her religious opposition to recognizing same-sex marriage. As had happened in other cases involving bakers and wedding venues, this decision put Stutzman on a collision course with the state's public accommodation antidiscrimination laws. Washington forbids discrimination on the basis of sexual orientation. Stutzman's argument was that she wasn't discriminating on the basis of the men being gay but rather refusing to participate in the wedding (which wasn't even legally recognized by the state when they started planning it in 2013). She argued that government mandating her participation by requiring her to provide flowers violated her constitutional rights to free speech, free exercise, and free association. The court roundly rejected all of her claims. The decision noted courts had previously rejected claims that attempted to separate "status" from "conduct" in similar ways, that, for example, discriminating against somebody who is pregnant falls under sex discrimination. As for her attempt to invoke her religious freedoms, they noted that the Supreme Court has set the precedent that "that individuals who engage in commerce necessarily accept some limitations on their conduct as a result." As for her free speech claim, the court has shared the position that we've seen in similar cases: They say Requiring Stutzman to prepare flowers for a same-sex marriage is not actually compelling her to endorse said marriages. This is very similar to how courts have ruled on wedding cakes. They have declined to accept the argument that the creation of a wedding cake is in and of itself expressive speech, but a baker does have the freedom to reject orders to pass along a particular textual message. (I explained the almost comically absurd complexity of this line of legal reasoning here years ago). Perhaps even a little more concerning, even if they did accept floral arranging as a form of expressive speech, it still might not have changed their ruling. In a similar case in New Mexico, a photographer lost a fight to refuse to shoot a gay wedding. Pretty much everybody understands that photography is expressive speech. But this majority decision agreed with the New Mexico court's decision, which concluded, "[W]hile photography may be expressive, the operation of a photography business is not." That is the kind of logic that can end up in all sorts of bad places: "While the publication of a newspaper may be expressive, the operation of a media business is not." The operation of a business is indeed expressive. It remains deeply frustrating to see the courts (and the American Civil Liberties Union) continue to sometimes cling to an idea that people lose some of their freedoms simply by engaging in commerce, which is itself a type of freedom. The Cato Institute submitted an amicus brief defending the florist's right to say no to the couple as a First Amendment issue. Cato (like Reason) has long supported legal recognition for same-sex couples. That's not the issue here; it's a matter of free speech (or compelled speech, in this situation). The Alliance Defending Freedom, which represented the shop (and was just designated a "hate group" by the Southern Poverty Law Center) is promising to try to get the case before the U.S. Supreme Court. I'm skeptical the high court would take the case. They've already refused to hear the previous wedding photography case, and that's a much more straightforward example of expressive speech. And so far, the business owners have been losing all these cases. There's no conflict in judicial rulings that the Supreme Court needs to resolve, as yet. Read the ruling here.[...]
Sun, 12 Feb 2017 10:00:00 -0500In a speech on Saturday night, Meryl Streep once again congratulated herself on her courage in criticizing Donald Trump. "It's embarrassing and terrifying to put the target on your forehead," she said, "and it sets you up for all sorts of troll attacks and armies of brownshirt bots and worse, and the only way you can do it is if you feel you have to. You have to. You have no choice, but you have to speak up and stand up and act up." The occasion was a Human Rights Campaign (HRC) gala at the Waldorf Astoria in Manhattan, where Streep received a National Ally for Equality Award. In this context, it is hard to give Streep points for bravery. If she had stood before an audience of LGBTQ activists and their progressive supporters to defend Trump, that would have demonstrated courage. Confirming the unanimous opinion of her listeners and portraying Trump's critics (including Streep herself) as bold dissidents seems more like a profile in conformity. Likewise, it did not take much gumption for Streep to criticize Trump, then the president-elect, at last month's Golden Globe Awards, where the acclaimed actress told her audience of Hollywood stars and movie critics that "you and all of us in this room really belong to the most vilified segments in American society right now." By Streep's account, the burden of defending culture and decency against Trump and his philistine horde has fallen upon her and her rich and famous friends, and they must not shrink from the challenge. Streep did pay a price for (accurately) portraying Trump as a crude bully: The president elect, who in 2015 described her as an "excellent" actress and "a fine person," decided she was "one of the most over-rated actresses in Hollywood," thereby illustrating her point that the blowhard billionaire prefers ad hominem attacks to logical argument. Streep alluded to that Twitter slam in her speech at the HRC gala, describing herself as "the most overrated, overdecorated and, currently, overberated actress, who likes football, of my generation." The football reference was a joke about another joke. In her Golden Globes speech, Streep had warned that "Hollywood is crawling with outsiders and foreigners, and if we kick them all out, you'll have nothing to watch but football and mixed martial arts, which are not the arts." The remark struck many people as a condescending swipe at Trump's benighted supporters. Streep acknowledged the backlash during her HRC speech, saying, "I was making a joke, and Mike Nichols told me, 'If you have to explain the joke, Meryl, you're doomed.'" Yes, of course it was a joke, but it was a joke at the expense of the uncultured rubes Streep and her friends seem to imagine when they think of Trump voters. "It isn't helpful to make it us versus them," Streep acknowledged on Saturday. But by continuing to portray herself and her privileged social circle as the valiant resistance against everything Trump represents, she only reinforced a Manichean view in which wealthy celebrities (except for Trump) risk everything to defend civilization against the encroaching darkness. "If we live through this precarious moment," Streep said, "if his catastrophic instinct to retaliate doesn't lead us to nuclear winter, we will have much to thank our current leader for. He will have woken us up to how fragile freedom is. His whisperers will have alerted us to potential flaws in the balance of power in government. To how we have relied on the goodwill and selflessness of most previous occupants of the Oval Office." Streep's claim that Trump is uniquely selfish or malevolent is not only dubious but irrelevant. The point of checks and balances is that they protect us against liberty-threatening power grabs, regardless of the motives behind them. As Louis Brandeis observed, "The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding." If the Trump presidency reawakens progressives to the importance of limiting executive power, that would indeed be a positive development. It woul[...]
Thu, 02 Feb 2017 14:01:00 -0500Earlier in the week, the White House put out a statement that President Donald Trump is going to maintain President Barack Obama's executive order prohibiting federal agencies and federal contractors from discriminating against gay and transgender employees. So why are some people afraid this is just a big smoke screen? People might be a little confused at news reports that there's an executive order floating around the White House that does nearly the opposite of what they said they were doing—an order that blows big holes in discrimination policies in order to protect religious freedom. Prior to the White House's announcement on Tuesday that it would be maintaining the order, some media outlets had gotten their hands on something titled "Executive Order—Establishing a Government-Wide Initiative to Respect Religious Freedom." Even after the White House announcement, civil liberties and LGBT groups expressed concerns about the possibility that despite what Trump declared, something was coming down the line that was going to harm their interests. Representatives of the American Civil Liberties Union, the Human Rights Campaign, the National Association for the Advancement of Colored People (NAACP) and others even had a media teleconference Wednesday to express concerns about the contents of this semi-mysterious order. Wednesday evening The Nation finally published the executive order that had been circulated within the beltway, along with some analysis by legal and civil rights experts. It's a four-page, broadly-written, and pretty complicated order, both in what it attempts to accomplish and what its hidden consequences may be. There are parts of the executive order fans of religious freedom and freedom of association would support—it spells out that religious organizations (and individuals) cannot be forced comply with mandates to fund birth control or abortions, for example. But it also has some deep constitutional and rule-of-law issues. The order establishes that federal employees (and contractors) must be "reasonably accommodated" for acting or refusing to act in accordance to a set of beliefs outlined within the order. The very particular beliefs protected: Marriage should be reserved to heterosexual couples; biological sex is immutable (in other words, transgenderism isn't real); and life begins at birth conception and abortion is bad. This whole part of the order, then, establishes a particular set of beliefs that are protected by government order. It's not a "religious freedom" order at all. It's saying that the government will recognize and protect a particular set of religious beliefs, which is a violation of the Establishment Clause. It literally establishes a set of religious beliefs the government will give special preference to. Mississippi passed a law with similar carveouts last year. Its implementation has been blocked by a federal judge, for now. So after all that explanation, what is the real story here? Is this order legitimate? Is Trump going to sign it? The answers so far are that yes, the executive order appears to be legitimate and was circulating within federal agencies, but no, the Trump administration is not considering it. At least for now. A White House official told ABC News Trump has no plans to "sign anything at this time." The vague possibility hangs in the air, and so apparently gay and civil rights groups are continuing activism against an the executive order anyway and treating it though it's a Sword of Damocles about to fall at any moment. If these opening weeks of the Trump administration are an indicator, we are going to see a very, very leaky government. In most ways, this is great. It's awesome. Trump certainly doesn't appear to be a fan of transparency (at least not when it's about him, anyway). But internal resistance and conflict between parts of his administration is going to result in information about its operations and planning to make it out into the wild for the public to evaluate and even push back against at a[...]
Tue, 31 Jan 2017 12:20:00 -0500While the populist triumph of President Donald Trump represented the possibility of backsliding on freer immigration and trade policies, look at all this news that makes it abundantly clear that America, at least, won't be backtracking on gay and transgender acceptance. To wit: Federal executive order prohibiting anti-LGBT workplace discrimination remains intact. This morning the White House announced that Trump will be keeping President Barack Obama's 2014 anti-discrimination order in place. This order prohibited discrimination against gay and transgender employees by federal contractors. The White House put out a brief statement: President Donald J. Trump is determined to protect the rights of all Americans, including the LGBTQ community. President Trump continues to be respectful and supportive of LGBTQ rights, just as he was throughout the election. The President is proud to have been the first ever GOP nominee to mention the LGBTQ community in his nomination acceptance speech, pledging then to protect the community from violence and oppression. The executive order signed in 2014, which protects employees from anti-LGBTQ workplace discrimination while working for federal contractors, will remain intact at the direction of President Donald J. Trump. To be clear, the administration here is setting the terms for working with the federal government and not attempting to establish (or advance) a general federal ban on LGBT discrimination by private employers elsewhere. If you want to get government money, you have to follow their rules. The order maintains narrow exemptions for religious organizations who provide federally funded social services. This decision (and the White House deliberately publicizing it) is an important test of whether Trump as president would be able to maintain his own generally pro-acceptance positions as policy even while bringing in social conservatives to run his administration. Now whether the executive order will actually be enforced is another question (that won't be answered for some time). The response by the Human Rights Campaign, the top LGBT activist organization, is very "Yes, but … ," (via The Hill): "You can't claim to be an ally when you send LGBTQ refugees back to countries where their lives are at risk. You can't claim support and then rip away life-saving services made possible through the Affordable Care Act for transgender people and those living with HIV or AIDS. You can't be a friend to this community and appoint people to run the government who compare being gay to bestiality," [Human Rights Campaign President Chad Griffin] added. Exit polls showed that even though Trump has been the most vocal supporter of LGBT issues the Republican Party has seen in a presidential candidate, he did terribly with LGBT voters, even worse than previous candidates. But we'll have to wait to see how actual policies affect LGBT folks moving forward. Betsy DeVos, friend of the gays? When Trump selected DeVos as his choice to head the Department of Education, supporters of school choice cheered. She's a massive ally and fighter for the rights of families to control where their children get educated. But many within the LGBT community were not so happy. DeVos' family has a lengthy history of opposing gay issues; and we're not just talking about speaking out or voting against gay issues. The DeVos family has helped bankroll ballot initiatives against gay marriage recognition. But according to a story by The New York Times, DeVos does not share the positions of her elders. She has a history of personal support for gay and transgender accommodation that she doesn't make a big public deal about: Ms. DeVos's personal experience with the debate over gender identity and bathrooms dates back decades. As chairwoman of the Michigan Republican Party, she came to the aid of a transgender woman who wanted to use the women's restroom at a call center, upsetting some of the other women there, according to two associates at th[...]
Fri, 27 Jan 2017 13:10:00 -0500We're seeing either an attempt to resurrect gay marriage discrimination policies in Texas or its death throes. Hopefully it's the latter, but it could also be a useful case to bring about a discussion of the extent and fiscal consequences of expansive government employee benefits! (Spoiler: That's not going to happen.) A couple of taxpayers, supported by the Texas Republican establishment, are suing to stop the City of Houston from extending spousal benefits to partners in same-sex marriages. This would seem to go against the Supreme Court's decision in Obergefell v. Hodges, the 2015 ruling that mandated that the federal government and the states recognize same-sex marriages as they do heterosexual marriages. Indeed, Texas courts initially rejected the case, but the governor, lieutenant governor, and attorney general submitted briefs arguing that this case is an opportunity to "examine the scope" of how broad the Obergefell ruling is. So the Texas Supreme Court will hear arguments in March. At the heart of the case is a claim that gets really odd, really quickly: They are arguing that legally recognizing a same-sex couple doesn't necessarily mean that they have to extend the same employee benefits as they do to heterosexual married couples: "No city employee — whether heterosexual or homosexual — has a 'fundamental right' to receive employee benefits for his or her spouse. It is perfectly constitutional for the government to offer benefits or subsidies to some married couples while withholding those benefits from others." While it's true that no city employee has a "fundamental right" to spousal benefits, this line of argument is a bit of a straw man. The justification for denying benefits and subsidies matters—the government can't just withhold them arbitrarily. Access to marriage benefits was part of the meat of what both the Obergefell and the previous Windsor ruling (which required the federal government to recognize gay marriages performed in states where it had been legalized) were about. From the majority opinion in Obergefell: The marriage laws at issue are in essence unequal: Same-sex couples are denied benefits afforded opposite-sex couples and are barred from exercising a fundamental right. Especially against a long history of disapproval of their relationships, this denial works a grave and continuing harm, serving to disrespect and subordinate gays and lesbians. Whether or not politicians in Texas support or "approve" of same-sex marriage should not be relevant to a decision of whether spouses should have access to benefits. It would certainly be deemed discriminatory to withhold benefits on the basis of the spouse's race or political affiliation or any number of other categories. If taxpayers have an objection to the cost of extending benefits to spouses of government employees, then the discussion truly should revolve around reducing those benefits as a class. But that's not what this is about (which is a shame, really). If the government is going to offer a legal benefit or a privilege to a spouse, it needs to have a legitimate reason for discriminating against a particular couple. Not liking gay marriage isn't a legitimate reason. Read through the case files here. While it seems likely that this lawsuit must be doomed, courts can be tough to predict.[...]
Mon, 09 Jan 2017 15:05:00 -0500
(image) Talk about a race to the bottom.
Legislators in the great state of Alabama are moving swiftly to protect the safety of people using public restrooms.
Senator Phil Williams will introduce the Alabama Privacy Act, according to our news partners at AL.com.
The bill will require bathrooms and changing rooms to either be exclusive to one gender or open to all genders. Bathrooms that are open to all genders must be staffed by an attendant at all times.
According to the bill, any public institution the leaves bathrooms unattended could be hit with fines ranging from $2,000 to $3,500 and face potential lawsuits.
So it's not just a hysterical reaction to the nonexistent threat of men dressing up as women to gain entry to bathrooms because, come on, perversion, right? It's also a jobs program! Needless to say, State Sen. Phil Williams defines himself as a "conservative Republican."
The Daily Caller notes that it's not just Alabama (and before it, North Carolina) that's wrangling with bathroom bills. Texas' Lt. Gov. Dan Patrick, writes Amber Randall, is dropping knowledge like he just had lunch at What-A-Burger:
"If laws are passed by cities and counties and school districts allow men to go into a bathroom because of the way they feel, we will not be able to stop sexual predators from taking advantage of that law, like sexual predators take advantage of the internet," Patrick explained."
Virginia, too, is prepping a bathroom bill, because it's important to deal with non-issues rather than, say, balance state budgets or rein in public pensions.
Because we don't actually live in a completely post-fact world yet, it's worth underscoring that non-discrimination ordinances (NDOs) have been in place for years in various jurisdictions and led to no uptick in bathroom crimes.
HT: The Twitter feed of former Reasoner and current Wash Poster Radley Balko.
Related video: How To Share a Bathroom with a Trans Person in 4 Easy Steps.
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Tue, 20 Dec 2016 12:42:00 -0500The saga of North Carolina's House Bill 2 appears to be coming to a close. HB2 drew national attention, courted controversy and boycotts, and quite possibly contributed to both N.C. Gov. Pat McCrory's defeat at the polls and—paradoxically—Donald Trump's victory. HB2 was most famous for mandating that people in public schools and government buildings use the bathrooms and any gendered facilities as the sex listed on their birth certificates, blocking them from accommodating many transgender people. The law also forbid cities from either raising minimum wages above those the state mandated and also forbid cities from adding their own protected categories to anti-discrimination laws. The state law was a direct response to outrage from conservatives over Charlotte's City Council adding sexual orientation and gender identity to all its antidiscrimination laws. This included public accommodation laws, meaning both public and private entities would be obligated to allow transgender people to use the facilities of their chosen sex. Thus came the great transgender bathroom panic of 2016, also fed by pushes from the Departments of Justice and Education to require all schools across the country to provide similar accommodations. On Monday, in the spirit of compromise, Charlotte's City Council rescinded its additions to its antidiscrimination laws. And now McCrory has responded by calling for a special session of the state's legislature to strike down HB2. So in the end, everything will be back the way it was at the start, like your average sit-com. (McCrory is complaining that the way Charlotte immediately folded after he was ousted is proof that the true goal was to get rid of him.) The outcome will be that neither Charlotte nor the state of North Carolina as a whole offer protections against discrimination on the basis of sexual orientation and gender identity. Note that—as I have corrected bad reporting previously—eliminating HB2 does nothing to actually add LGBT protections. In fact, the state could have added LGBT protections to antidiscrimination laws and keep HB2 intact. But that's a whole different issue. Both Charlotte's ordinance additions and HB2's mandates were bad regulations that attempted use the law as a hammer in a culture war rather than carefully considering the personal liberties of all parties involved. A transgender person should be able to identify himself or herself to the government as he or she sees fit (assuming no effort to defraud the government or others). The purposes of things like birth certificates should be for us to tell the government who we are, not for the government to tell us who we are. As a legal and civil liberties matter, whether transgender is a "real thing" should not be relevant to our right to control our own identities. But to demand that private entities come along for the ride or face fines or shutdowns by government agencies denies those people the right to decide for themselves how much to accommodate others, and that has led to a massive backlash. There is little sign that the fear of predators posing as transgender people in order to target children or women is based on actual threats. But the rush to use the law to bypass the necessary cultural shifts to help transgender people achieve public acceptance got drawn into the tiresome "public correctness" fight that helped drive this election, and it didn't need to. There are signs that acceptance of transgender Americans is improving, bathroom conflicts aside. When you use the law to try to force agreement through threat of fines or force, the battle then becomes over who controls the law. And it assumes that there must be winners and losers and not a society where people work things out with each other through negotiation, debate, and influence.[...]
Tue, 20 Dec 2016 07:30:00 -0500School choice is not the enemy for gay and transgender students. People with an entrenched interest in maintaining the public school status quo are selling it as a threat, suggesting the idea of charter schools and vouchers is all just a trick to siphon education funding away to religious schools and evil, evil "for-profit" corporations. (Whether or not parents are happier with the educations their kids are getting there is irrelevant.) It's not entirely clear what the landscape on LGBT issues and public schooling is going to look like under President-Elect Donald Trump. It's an exaggeration of describe Trump as "anti-gay," but it's definitely accurate to at least describe his secretary of education nominee Betsy DeVos as having a history connecting her to anti-gay activism. Members of the religious DeVos family don't just have a particular set of conservative views. Through their foundation, they've spent money on state-level efforts to block same-sex marriage recognition. This doesn't necessarily mean that making life miserable for LGBT students is on DeVos' agenda. It does mean that her religious motives are being used to impugn school choice, and that's a shame. If school choice is for anybody, it's for students who don't fit into a "one-size fits all" education system, and that includes LGBT teens, particularly now that transgender people are coming out at a younger age. For proof, head down to Atlanta. Reuters has a story about Pride School Atlanta, a private non-profit school focused on serving these students. It's the first of its kind down there and is not sitting around waiting for the federal government to create rules on how to treat its students. And more power to them: At Pride School, where transgender students are the majority of its inaugural class, Josh Farabee, 14, feels comfortable showing off his spunky pink and lime hair and long mauve nails. Under the gender-neutral restroom policy students voted for, he tried the men's restrooms but discovered he still prefers the women's. The transgender student's days at the school are a far cry from his former public school, where classmates called him "tranny" and "fag." "I don't wake up scared to go to school," he said. One thing to note about Pride School Atlanta is that it's a private school, not a charter school, so it has a tuition. Imagine how great it would be for parents of LGBT kids if it were a charter school, and they were able to send their children to a positive school that was funded from the tax dollars they have to contribute into the education systems. That's why it's so important not to allow the idea that school choice is just for the right people (white religious folks) to control the debate. Charter schools are a boon for poor minorities in urban environments and parents love them. Parents should not have to rely on the hospitality of the president or whoever is in charge on the federal level to determine whether their children are treated right. School choice will give parents the power to put kids in schools that treat their students well and punish those that do not.[...]
Fri, 16 Dec 2016 04:00:00 -0500
(image) The Illinois Human Rights Commission has upheld an $80,000 judgement against the Christian owners of a bed and breakfast who refused to host a gay wedding. An attorney for owners of the Timber Creek Bed & Breakfast says they have never hosted civil union ceremonies or gay weddings and do not plan to do so despite the ruling against them.
Thu, 15 Dec 2016 14:05:00 -0500Pittsburgh has joined a handful of states and other cities this week by legislatively banning the professional practice of conversion therapy for minors—that's counseling that seeks or claims to cure gay people of their homosexuality or transgender people of their feelings of being the opposite sex. The practice is widely discredited by professional counseling and mental health organizations. Not only does it probably not work, many therapists believe it is actively harmful to the mental health of its subject. In America, it's heavily tied to religious efforts to cure followers of unwanted sexual urges, and it is often (but not always) pushed on teens by the parents. I have been—and remain—a critic of these laws, not because I support conversion therapy (I agree with the mental health experts completely), but because I'm very concerned about the consequences of government control over subjective psychological treatments that are significantly speech-related. This law tells licensed therapists in Pittsburgh that they literally cannot talk to minor patients about a particular subject. There are a couple of indicators that government is well aware that they're regulating and censoring speech, even as they insist it's about stopping fraud. First of all, the law (as the other laws have been passed) only covers minors. The argument is that the treatment is fraudulent and dangerous, but if adults want to partake in it, go ahead. But minors often get put into conversion therapy against their will by parents and there are consent issues involved (a dynamic we occasionally see in other controversies where parents contradict medical professionals in the appropriate health treatments for children). Second, the law, like the others, only covers mental health professionals licensed by the state of Pennsylvania. They can't tell non-professionals that they can't talk with gay or transgender teens and tell them they can be "cured," because that would flat-out be censorship. As a result, this law can (and will) be ignored by church-based or religious-based conversion "therapy" treatment that is not provided by licensed professionals. Thus, the extent that this law really stops any actual conversion therapy taking place in Pittsburgh is not clear. But what it does do is establish a precedent of the government deciding what sort of discussions are legally legitimate by classifying it as "fraud" rather than speech and therefore open to regulation. And so far, the Christian Science Monitor notes, federal judges have deferred to the argument that these laws are regulating professions, not censoring free speech. Their piece also quotes from my previous criticism of these laws as using government regulation to provide scientific certainty to a social science field that is ever-evolving. Is there a reason to actually care if it stops kids from being abused by their parents? Yes, because why stop there? If a government agency can declare by its authority that a controversial matter is actually "settled" as a legal and regulatory issue, imagine what that could potentially mean. You don't have to stretch too far. Heck, you don't even have to leave this site. A pack of attorneys general have colluded to target ExxonMobil, attempting to subpoena reams of correspondence between them and think tanks (among them, the Reason Foundation, which publishes this website). Their argument is that the debate and discussions about climate change was actual an organized attempt to defraud people and they're looking for evidence. Ron Bailey noted at the time: "It's bad enough to politicize science, but to outlaw disagreements over how to interpret science heads down the perilous path toward Lysenkoism, in which only officially approved science is allowed to be practiced and to be discussed." Is there a better way of [...]
Mon, 05 Dec 2016 00:01:00 -0500On gay rights, America has come a great distance in a short time. Remember the days, not so long ago, that gays stayed in the closet, sodomy was a crime, same-sex marriage was banned and people could be fired from their jobs because of their sexual orientation? Actually, you don't have to try to remember that last. It's still the case in 28 states, including Mike Pence's Indiana, that holding hands with your same-sex partner in public can mean losing your livelihood. A bigoted boss can cashier a good employee for loving someone of the wrong gender. This unprotected status is an anomaly under the 1964 Civil Rights Act, which forbids employment discrimination on the basis of "race, color, religion, sex, or national origin." African-Americans and other racial minorities are protected, Catholics and Muslims are protected, women are protected and immigrants are protected. Gays are not. Many libertarians, whose general principles I share, think the law is an intolerable infringement on contractual freedom. When Gary Johnson, the party's presidential nominee, said at the Libertarian Party's national convention in May that he would have voted for the 1964 Civil Rights Act, he was booed. But pretty much everyone else agrees that ship has sailed, as well it should have. The question now is not whether federal law should ban discrimination on the basis of certain criteria. It's merely which criteria deserve inclusion. On this issue, the public took the side of gays even before coming around on same-sex marriage. Most Americans think discrimination on the basis of sexual orientation should be illegal. Not only that, a 2015 survey by the Public Religion Research Institute found that 75 percent think it already is. A study by the Williams Institute at the UCLA School of Law reported, "A majority of Americans in every U.S. congressional district support laws that protect against employment discrimination on the basis of sexual orientation." Such an expansion would make sense, because gays are similar to other minorities that have long been targets of hostility and mistreatment. But when the 1964 law was passed, no one was thinking of protecting gays, who were widely viewed with ignorant disgust. And a bill known as the Employment Non-Discrimination Act has been repeatedly introduced in Congress, to no avail. So federal law leaves gays out in the cold. Or does it? A lawsuit heard on Nov. 30 before the 7th Circuit Court of Appeals in Chicago argues that the federal law against discrimination on the basis of sex should be interpreted to cover sexual orientation. Nearly all of the judges who asked questions appeared to find much merit in the argument. Frank Easterbrook, a renowned conservative appointed by Ronald Reagan, noted that in its 1967 decision in Loving v. Virginia, the Supreme Court struck down a law forbidding interracial marriage because it treated people of different races differently. A black woman could marry a black man but not a white man. She was penalized solely because of her race. In the gay rights case, community college teacher Kimberly Hively said she lost her job after she was seen kissing her female partner goodbye in the parking lot. Had she been seen kissing her male partner, she would not have lost her job. "Why isn't that sex discrimination by exactly the reasoning of Loving?" demanded Easterbrook. Hively allegedly suffered retribution not for having a female partner, which would be perfectly fine if she were a man, but for being a woman who has a female partner. How can that not qualify as sex discrimination? The obvious retort is that the lawmakers who approved the 1964 Civil Rights Act didn't mean to prohibit discrimination on the basis of sexual orientation, and therefore it doesn't. But they also didn't set out to deter sexual harassmen[...]
Tue, 22 Nov 2016 13:10:00 -0500Georgia Republican Rep. Tom Price is being floated as one of President-Elect Donald Trump's likely picks to serve as secretary of Health and Human Services. It shouldn't come as a surprise (at least for people who know who Price is). Price, current head of the House Budget Committee, is a doctor and huge opponent of the Affordable Care Act as it exists. But Price is more than just somebody who doesn't like Obamacare—he's one of the Republicans responsible for actually putting together a substantive plan for reforms. Peter Suderman analyzed Price's ideas to repeal and replace Obamacare in a 2014 issue of Reason magazine. Price is also extremely conservative in just about every way—including holding socially conservative views opposing gay marriage and gay rights laws. Price regularly scores a zero on the Human Rights Campaign's scorecard evaluating legislators' votes on LGBT issues. He put out a statement after the Supreme Court mandated government recognition of same-sex marriages as "legislating from the bench" and "a sad day for marriage." He has previously supported a constitutional amendment defining marriage as being between one man and one woman. So his history of comments on LGBT issues has popped up on gay blogs and sites as a source of concern. But would his positions opposing gay marriage actually mean anything in office? Legal recognition is a settled matter. It seems unlikely he would be able to implement policies that, for example, assist families headed by a heterosexual couple but not gay ones. There is a quote from 2013 people are noticing that could be instructive. Price is no fan of LGBT folks, but he's also clearly a policy wonk. When asked by an antigay rabbi about whether the legislature should take into account the "health impact and economic impact" of "promoting" homosexuality, abortion, or pornography, he responded: The consequences of activity that has been seen as outside the norm are real and must be explored completely and in their entirety prior to moving forward with any social legislation that would alter things. I'm always struck by people who wake up one morning and think that they've got a grand new way of doing something when as you all know that the tried and true traditions in history that made us great are preserved and have survived because they are effective. I hear you, medical health and costs; you talk about a huge cost-driver to state pensions and other things, many of these areas would significantly alter state balance sheets. The quote is kind of fascinating in the sense that homosexuality, abortion, and pornography are hardly "new" and are part of those traditions of history that have survived because some people happen to be gay and lots of people love porn. Liberal elites aren't the only folks who live inside bubbles sometimes. But as for his concerns about the cost impact to state pensions and balances, I can only assume he's talking about what happens to benefits when states are legally required to recognize same-sex partners as beneficiaries. In that case, let's suggest that if it's too costly to treat couples equally under the law for these benefits, the problem then lies in the benefits themselves, not with equality. Given Price's interest in cost controls and reducing government spending, maybe that's something he should think about. There will likely be fights between the LGBT and a Price-run HHS in issues raging from whether transgender people can have treatments covered, access to the latest medicines that are showing to be increasingly successful in preventing the spread of HIV, and even the unending debate over how much to teach children about sexuality and/or abstinence. If anything, these examples show the problem with the government having so much control o[...]
Mon, 14 Nov 2016 14:15:00 -0500Because President-Elect Donald Trump has taken just about every conceivable possible position on gay and transgender issues, and because these LGBT issues played almost no role in how the election turned out, I've been reluctant to even speculate what might happen in a Trump administration. Others have been much less circumspect and are certain that Trump is going to be a disaster for LGBT issues. History suggests they would be saying that regardless of who the Republican nominee was, so it's helpful to recognize that this freakout would have happened if it had been Jeb Bush, Marco Rubio, or probably any of the other GOP candidates except maybe John Kasich. The Republican Party did decide to maintain and even expand an anti-gay platform prior to the election despite the opportunity to move forward. All of this response is rather disconnected from what Trump actually has the power to accomplish when in office and what the public at large would actually stand for. Yes, Vice President-Elect Mike Pence has legitimately awful positions on gay and transgender issues, but that should not be taken as indicator of what can actually happen. After all, conservative Christians rallied voters to the polls in 2004 with the possibility of a constitutional ban on same-sex marriage recognition and that never happened or even got anywhere near where it was even a possibility. It did influence several state-level gay marriage bans. Fear was used to keep the LGBT vote strongly directed toward the Democrats. Clinton lost, but the fear remains, even though it's tied to not a whole lot but rhetoric. Walter Olson, Cato senior fellow and Reason contributing editor, took to the New York Post to actually analyze what's likely to happen under Trump and came away concluding that as president, he won't be rolling back gay rights. But LGBT groups may not succeed in pushing for even more federal oversight over private treatment of gay and transgender issues. Gay marriage recognition is safe (Trump said on 60 Minutes that he has no interest in trying to relitigate that fight). There's going to be no effort to reinstitute a ban on military service. But there's a couple of issues that Olson points out where I agree and would like to flesh out a little bit. Quoting Olson: The federal government will pull back from its ill-advised attempt to prescribe nationwide rules for school bathrooms and changing areas. Debates will continue at the state and local level, where public opinion will prove more amenable to workable compromise than one would guess from the loudest voices on both sides. Trump himself said in April he opposes the controversial North Carolina law on the issue that some social conservatives have championed. Organized LGBT groups will go on refusing to concede any legitimate role for religious exemptions in discrimination law, even in the operation of, say, church-affiliated colleges. They will therefore decline to enter any negotiations to amend or refine proposals like the so-called First Amendment Defense Act. That will, in turn, increase the danger that congressional Republicans will themselves overreach by enacting some version of such a proposal that is unfair or impractical. Right before the election, the Supreme Court agreed to hear the case of a transgender teen fighting with a Virginia school board over the Department of Education's rule-making that schools must accommodate his request to use male facilities at school. The case, though, could end up really being about the process of federal rule-making and could avoid answering the actual question of whether the Obama administration's interpretation of the law is correct. The court could rule that the administration didn't properly implement policies, and th[...]
Fri, 28 Oct 2016 12:20:00 -0400Meet Brian Sims, member of Pennsylvania's state House of Representatives and a Democrat. He gets a lot of attention nationally because he's also openly gay and an activist in the gay community. He's been serving in office since 2012. Now meet Dick Yuengling Jr., the elderly proprietor of Yuengling brewery in Pennsylvania. Donald Trump's son, Eric, visited the brewery on Monday and promoted it as a great business success, promising there would be more companies like it if his dad were president. Yuengling (the man, not the brewery) is a Trump supporter and told Eric, "Our guys are behind your father. We need him in there." Apparently that some people at a brewery support Trump as president has resulted in some outrage within the gay community, and this has led to a call for gay bars to dump Yuengling's beers as a protest. Sims is a loud proponent of such a boycott. He posted on Facebook: GOOD BYE, Yuengling Brewery: I'm not normally one to call for boycotts but I absolutely believe that how we spend our dollars is a reflection of our votes and our values! Supporting Yuengling Brewery, that uses my dollars to bolster a man, and an agenda, that wants to punish me for being a member of the LGBT community and punish the black and brown members of my community for not being white, is something I'm too smart and too grown up to do. D.G. Yuengling & Son, Inc. believes that an agenda that is anti-woman, anti-immigrant, anti-LGBT, anti-racial minority and anti-equality is best for them and that tells me all I need to know about what they think is best for their own customers. I won't reminisce about your product or lament any losses. Goodbye Yuengling and shame on you. Sincerely, A former customer of 17 years! Now, this initial post is simply Sims saying he's not buying Yuengling anymore because of the owner's politics, and, you know, there's nothing wrong with that. Many people have made choices like this. But a subsequent post took it to the next level and called on gay bars in the Philadelphia area to dump the beer. And because of Sims' position as an elected official, this call is getting media attention. Claire Sasko over at Philadelphia magazine notes that Dick Yuengling is a well-known conservative who holds conservative views and has been such for years, so Sims acting like he's just discovering the man's politics is a bit rich. If true, it kind of shows how unaware Sims is of his state's own political landscape. I've been critical of previous LGBT-centered boycott calls as misguided and ineffective (consider the absurd and pointless of boycott of Stolichnaya vodka in order to attempt to punish the Russian government for treating gay people there badly). We should be even more critical of this call from Sims. Sims is not just a gay activist. He is an elected official of the Democratic Party. He is calling for citizens to punish a business for supporting the presidential candidate of the political party that opposes him. He is not Dan Savage. He's an elected office-holder attempting to punish a supporter of another political party. He can couch it in terms of gay issues all he wants, but he is still calling for the economic harm of a man and a company over support of a Republican. This is grotesque and needs to be pushed back. This is an unhealthy attitude for a politician in a country that values free and open elections. The response from a Democratic politician to Trump's campaign should be to make a better case for Hillary Clinton, not to try to hurt citizens within his own state who support the Republican. Furthermore, this is an effort that can so clearly and obviously backfire terribly. A good, huge (yuuuuge!) chunk of Trump voters are motivated by the belief that the[...]
Mon, 10 Oct 2016 17:45:00 -0400Speaking for myself and only myself, I feel as though it's actually a positive development that gay and transgender issues are playing such a minor role in this year's presidential election. Granted, there are still some political fights going on (particularly in North Carolina over transgender bathroom issues and discrimination regulations), and there are some fears that the Supreme Court might rethink gay marriage recognition (very unlikely). But for better or worse, gay issues are not a major narrative in this election. But that does make me wonder why a blog post I wrote last February got a bunch of new visitors over the weekend. Maybe the title of the post helps explain: "Hillary Clinton's Struggles on Gay Issues Are About Her Honesty, Not Her Transformation." Like many Democratic politicians (including President Barack Obama), Clinton was not a supporter of legal gay marriage recognition until recent years. She "evolved," is the term they've all decided to use. Clinton got herself into some hot water earlier last fall defending Bill Clinton's signing of the Defense of Marriage Act (DOMA) back when he was president. Both Clintons have tried to argue that their support of DOMA as an attempt to prevent a possible Republican effort to pass a constitutional amendment prohibiting recognition of same-sex marriage nationwide. They were trying to shift blame for their own support for DOMA to Republicans. The problem was that there was no Republican push for a constitutional amendment during Clinton's administration. That failed effort didn't come around until George W. Bush became president. LGBT activists knew this and blasted Clinton for trying to blame her own positions on Republicans. It was a revisionist history designed to try to wriggle their way out of responsibility for the passage of anti-gay legislation. Now the new leaks of internal emails within the Clinton campaign from Wikileaks make it clear that the Clinton campaign understood that she was wrong about the history of DOMA, but she also was not likely to admit it or their role in supporting the legislation. Clinton campaign LGBT liaison Dominic Lowell noted last October that gay activists were not supporting Clinton's story that there was a constitutional amendment being pushed by the Republicans. Dan Schwerin, director of speechwriting for the campaign, noted: [M]y two cents is that you're not going to get her to disavow her explanation about the constitutional amendment and this exercise will be most effective if it provides some context and then goes on offense. And later … I'm not saying double down or ever say it again. I'm just saying that she's not going to want to say she was wrong about that, given she and her husband believe it and have repeated it many times. Better to reiterate evolution, opposition to DOMA when court considered it, and forward looking stance. We've hit Trump repeatedly in his stubborn refusal to acknowledge the facts on everything from crime and trade because they're politically inconvenient to the message he's trying to sell to voters. Here, too, Clinton has been selling herself as the savior to LGBT voters for every political issue that remains (regardless of whether it needs any sort of federal involvement). But she stubbornly wants to cling to the idea that she was forced into an antigay stance, a claim that is not supported by history. That, in a nutshell, explains why this latest round of email leaks has probably led people back to my blog post from last year about her honesty. Which version of Clinton would be president? Why are we asking that question about Trump, but not her?[...]