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Posts Tagged ‘365gay’

Criminal Laws Matter (Even When They Can’t Matter)

March 24th, 2011 No comments

I’m using the word “matter” in two different senses, obviously. The point is that even an unconstitutional statute can “matter” in terms of the signals it sends out to the group who is the law’s target, even though it can’t legally matter.

In this week’s column, I explore the issue as it applies to interracial marriage and sodomy laws. The motivating event for the piece was the decision by a couple of Kansas legislators to strike a proposed amendment that would have removed the now-unenforceable ban against sexual intimacy by two people of the same sex.

Justice Kennedy’s admonition in Lawrence v. Texas is particularly apt here:

“When homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination both in the public and in the private spheres.”

That’s no less true when the law can’t be enforced.

The Hidden Costs of Inequality

March 17th, 2011 No comments

In today’s column over at 365gay.com, I look at what inequality does to those who are in power.

If nothing else, take a look at the short but powerful video from a couple that really can’t afford to wait until the state gets around to letting them marry. One has Altzheimer’s disease.

Swimming to Maryland

February 10th, 2011 No comments

…narratively speaking, that’s what today’s 365gay column does. I connect a flap over a Letter to the Editor of SWIMMER Magazine to the push for religious exemptions to the marriage equality bill being considered in Maryland.

How? Read the thing.

Illinois Creates Something New

February 3rd, 2011 No comments

It’s the civil union for opposite-sex couples. Will it catch on? And what does it say about the relationship between marriage and civil unions, and about the meaning of marriage more generally?

Today’s column at 365gay explores these and related issues.

Taking on Rauch’s Call for Religious Accommodation in this Month’s Advocate

December 30th, 2010 2 comments

(cross-posted at 365gay.com, with links you won’t find here)

Jonathan Rauch makes the clearest, most consistent conservative case for equality – especially marriage equality – that I’ve yet read. Even his opponents, on both the left and the right, accord him respect. He deserves it.

At times, though, Rauch’s conservatism causes him to call for compromises that are seriously flawed. Earlier this year, he took Judge Walker to task for his opinion stating that Prop 8’s denial of marriage equality was unconstitutional; for Rauch, the civil unions (domestic partnerships, actually) available in California should have been enough. He overlooked the fact that no reason was adduced at trial for conferring all of the benefits of marriage without the label – in other words, to engage in discrimination simpliciter.

Worse is his piece in this month’s Advocate. In an effort to achieve an elusive compromise between anti-discrimination laws and accommodating religious belief, he clatters far off the track. Please read the entire piece. It’s beguiling in its apparently reasonable call for LGBT advocates to tolerate some (unspecified) level of discrimination, but his seemingly commonsensical call for civility falls apart under a closer reading.

At the risk of oversimplifying his exhaustively developed argument, here are his main points: (1) Mainstream opinion has shifted in our favor, with a majority of Americans polled now declaring that they don’t think homosexuality is immoral; (2) It’s therefore time to start acting like a majority instead of like a beleaguered minority, and to show charity and compassion for those who object to our full equality on religious grounds; and, relatedly, (3) It’s not wise to insist on rigorous, unyielding enforcement of existing laws in our favor. Where we can accommodate religious objections, we should.

He’s wrong on every count.

First, the entire article depends critically on believing that polling data indicating (bare) majority approval of homosexuality means that we’ve won (or at least that we’re winning).

Not so fast. A simple, binary “yes/no” on the morality of homosexuality, while a promising development, doesn’t necessarily translate into success on any specific issue. It might be, for example, that a substantial percentage of those who think homosexuality isn’t immoral object to same-sex marriages anyway, or that others don’t see protecting the LGBT community from job discrimination (note that the “T” doesn’t appear in Rauch’s piece) is terribly important.

And it seems to me that the national data, and Rauch, miss the local effect. It’s precisely those places where homosexuality is least accepted that are likeliest to create the greatest number of practical problems – not just cupcake denials – for the LGBT community. I’d expect many more instances of religious objections to equality in, say, Oklahoma, than I would in Philadelphia. But red states are exactly where it’s most important to place the force of law behind the anti-discrimination imperative.

I understand that Rauch is making a more general point here, about a movement toward acceptance that might have reached a tipping point. But given all the work this poll is being called upon to do, the use of the data seems a bit facile, to me. The first year in which homosexuality has lurched across the 50% approval line seems insufficient occasion to declare imminent victory, and Rauch’s recognition that there are still victories to be won comes across as grudging, in context.

Now to the second and third points, which are intertwined. Rauch tries to bolster his argument by opening his piece with a carefully chosen example: A “mom and pop” bakery – not a large corporation, of course – refuses to bake rainbow cupcakes for a college Gay Pride event. The students accept the decision and vow to continue dialogue on LGBT issues, but the city launches an investigation into the event, with the eviction of the business from city-owned property a possible outcome.

Rauch deplores the second of these outcomes. He wants you to ask: Are they really going to kick out these long-term, family tenants over something like cupcakes? I mean, who cares?

His argument depends critically on diverting the reader’s attention from what’s really at stake here. I’d guess that the same religious views that prevented the baking of rainbow cupcakes (for the gays, not for the second-grade Rainbow Pageant) would also make that same “mom and pop” unlikely to hire a gay employee, or to fire him if he came out – say, by getting married to another man. Would that be OK?

What about a teacher who refused to teach a unit on family inclusion that mentioned gay and lesbian-parented households? (The private/public distinction isn’t available to Rauch because he thinks that the discriminatory bakery should be able to retain its place on city property.)

What if “mom and pop” decided to open a bed and breakfast and didn’t want to accommodate same-sex couples? You and your same-sex spouse see the “Vacancy” sign, and walk to the front desk. You’re tired and sleepy after a long day on the road. You’re turned away, and not nicely. (By the way, the same could happen to an unmarried opposite-sex couple under the “religious (sometimes) trumps civil rights” view of Rauch. Should that be OK, too? Or is it only the gays who need suffer the withering reprovals of the ”tsk-tsk” brigade?)

Are these costs “we” can – or, more to the point, must – live with? Rauch doesn’t say.

But even the facially silly cupcake example can be reworked, with little imagination, to up the cost: Imagine that the student asking for the dazzling treat was mercilessly bullied as a kid, and is just now developing a healthy sense of self. To him, the refusal will have a very different meaning than it would for Rauch, or for me.

It’s precisely this difficulty in drawing the line that dooms Rauch’s fuzzy call to…non-action. Any statutory religious exemption beyond activities clearly at the core of the entity’s ecclesiastical mission – celebrating weddings, training clergy – quickly runs into all kinds of line-drawing impossibilities.

Some, like Robin Fretwell Wilson, try to limit the problems by restricting proposed religious exemptions to non-discrimination laws to actions that are closely tied to recognition of same-sex weddings. To his credit, Rauch understands that there’s just no principled reason for roping off that category; if we want to recognize religious accommodations, it’s hard to see any good reason for limiting them in that way.

In a series of posts last year, I argued for a different kind of accommodation: Businesses that are anti-gay should be able to make their religious views known, but not able to act on them in any way. For many, a choice between a gay-friendly and a homo-hating business will be clear. But laws of general application should apply…generally. Or else it’s hard to see why exemptions should be limited to disapprovals of homosexuality, generally. Plenty of religious doctrine opposes the equality of women, even today. Should businesses be able to act on that?

One last point: Rauch doesn’t want to give the religionists a rhetorical weapon by allowing them to claim the label of oppression, saying that they’re being treated as “bigots.”

But they’ve already made this move, even where we don’t have laws protecting us. When we do get those laws, there won’t be any need to name-call: The law will speak clearly enough.

Five Thoughts on DADT Repeal

December 19th, 2010 No comments

Collect them here. Then trade ‘em with your friends and family!

Categories: military Tags: ,

Educated Guesses

December 16th, 2010 No comments

Here are a few of mine for 2011, in terms of LGBT (and other) legal issues.

Maggie Responds! And I Can’t Leave it Alone

December 9th, 2010 2 comments

As readers of this site might not know, Maggie Gallagher directly responded to my post from last week’s 365gay.column. In a (mostly) respectful tone, she clarified — seemingly for the first time — her views on civil unions. In principle, she favors them but worries they’ll lead to full marriage equality. And opposing that outcome is her professional raison d’etre.

In this week’s column, I use her post as a springboard to discuss the oral argument in the Prop 8 case, and to agree with Maggie — civil unions do and will lead to full marriage equality. But we differ, of course, on whether that is a good or bad thing.

Live-Blogging Monday’s Oral Argument in Prop 8 Appeal

December 4th, 2010 No comments

On Monday (Dec. 6), the Ninth Circuit (federal appellate court) will be hearing arguments in Perry v. Schwarzenegger, the case challenging the constitutionality of Proposition 8. I will be live-blogging the argument, beginning at 1 pm EST, over at 365gay.com. (I will link back to it from here when it’s done, but if you want the blow-by-blow, go there — not here.)

The first hour will address the standing issue; the second, the substance of the constitutional arguments. While standing arguments are usually a MEGO1, in this case it’s worth listening closely — there’s more than a minimal chance that the court will toss the Prop 8 defenders out on the ground that intervening parties don’t have standing to appeal.

  1. “My eyes glaze over.”

More, Please

November 18th, 2010 No comments

In this week’s 365gay column, I make the point that many of the anti-equality forces do us a favor every time they try to defend their indefensible positions.

So let them keep talking, even though it can be painful to sit through such bigotry.