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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.

My Big Fat Lead News Story on 365gay.com

March 12th, 2010 No comments

Having seen my posts on the anti-discrimination controversy in Virginia, the Editor in Chief of one of the premier gay on-line news sites, 365gay.com, contacted me yesterday evening and invited me to submit a post on the subject there. I wrote it last night, and it went up this morning. You can find it here. (By the time you read this, they should have taken care of the misspelling of my name; which oddly appears only in the headline, not in the by-line).

If you have a few seconds to click over there, I’d appreciate it. This was a big deal gig to land, and I’m excited about it.

Virginia AG Dives Head-First into Culture Wars, Hits Cement

March 8th, 2010 1 comment

I might have been writing about William and Mary’s basketball team, which will play for the CAA championship this evening. But instead, I’m constrained to talk about something disturbing involving my alma mater, and the state’s schools more generally.

A few days ago, I reported on the rumor that Virginia’s new Attorney General, Ken Cuccinelli, had commanded the state’s universities to rescind their policies that prohibited discrimination against gays and lesbians. No one would talk.

Well, in an article that reminds us of the continuing vitality of and need for the mainstream media, the Washington Post obtained a copy of the letter and reported the story on Saturday. It does indeed “advise” the state’s schools to withdraw the policies, which he acknowledges are “benign.” This is one of the worst moves by a public official since — never mind, there are too many to choose from.

The letter never should have been written. The law isn’t as clear as Cuccinelli says it is. The cases in which the AG has found that such policies exceed the state’s authority involved municipalities or, in one infamous case, the Governor’s Office (when Gov. McDonnell was AG, he opined that Gov. Kaine had exceeded his authority with an Executive Order extending non-discrimination protection to gays and lesbians). None of them involved a university, and for good reason.

Although the state’s universities are of course “public institutions,” they’re not like municipalities, or state agencies, and everyone knows that. As even Cuccinelli recognizes in the letter, they enjoy a certain necessary amount of autonomy. But that autonomy isn’t only granted to allow the school to carry out its day-to-day functions; it’s also a recognition that universities need a certain freedom to act in order to flourish. Cuccinelli is right to say that they can’t contravene the General Assembly, but supplementing the state’s anti-discrimination policy isn’t the same thing as contravening it. In other words, he puts the burden in entirely the wrong place: If the Commonwealth of Virginia feels that it wants to put itself out there on the issue, it should be required to pass a law specifically stating that universities within the state system may not offer protection based on sexual orientation. (Update: A former governor and AG of Virginia, Gerald Baililes, agrees with me.) Presumably, even the newly red-again state isn’t stupid enough to do that. In the silence, the current list of protected classes should be regarded as a floor, not a ceiling — a floor on which the universities may build further protections, both to affirm their basic commitment to equality and — more practically — to attract the most qualified professors, administrators, staff, and students.

This will quickly turn into a PR nightmare for the state. Most of the members of the universities’ governing boards are staying mum for now, as they figure out what to do. But at least one member of George Mason’s Board of Visitors — a Republican, by the way — called the action “reprehensible.” Senator Mark Warner stated that Cuccinelli’s action will “damage the Commonwealth’s reputation for academic excellence and diversity.” A student at Old Dominion University opined that we’ll see “the gamut” of protests on this one. He’s right, I’d imagine — and hope.

None of this can penetrate the true believers’ thick skulls. One spokesman for the Family Foundation said: “I find it hard to believe that this would be the final straw in whether or not someone’s going to come to Virginia’s universities…They are some of the best universities in the country.”

Well, part of the reason for their excellence is their refusal to accede to paleolithic principles, even if the Commonwealth lags behind. And here’s a counterexample on the “final straw” argument: Me.

When I was down to the final, difficult decision about whether to attend William and Mary or Brown University — a close and difficult call — had this issue come to my attention, I would have chosen Brown. And if William and Mary and the other state universities (where “state university” is defined as a school that gets 14% of its operating budget, and none of its endowment from the state) continues to get slapped around by the state in this way, the entire state will be off my daughters’ list of college possibilities. So, there.

Even McDonnell wisely avoided addressing this issue directly when he was AG. Cuccinelli should have done the same, but apparently he’s determined to take down his own party and to make the state a place of last choice for anyone who cares about basic equality. The opinion isn’t self-executing, though. Let’s see whether the universities’ boards have the cojones to resist.