Sunshine & Rainbows: Marco Rubio & LGBT Issues

“I believe that marriage is not just a bond but a sacred bond between a man and a woman. I have had occasion in my life to defend marriage, to stand up for marriage, to believe in the hard work and challenge of marriage. So I [am] committed to the sanctity of marriage, [to] the fundamental bedrock principle that exists between a man and a woman, going back into the mists of history as one of the founding, foundational institutions of history and humanity and civilization, and that its primary, principal role during those millennia has been the raising and socializing of children for the society into which they are to become adults.” –Sen. Hillary Rodham Clinton (D-NY)

“I do not support anti-discrimination laws for Bushes and Clintons.”

We all stand, whether conscientiously or insouciantly, at the delirious crossroads of competing obligations, values, and desires. For politicians, in particular, the road threading the needles of the constituent elements of a broader electoral coalition can be a herculean task at the best of times. When volatile issues like marriage policy, protected status for elucidated groups, and religious freedom concerns are the issues of the day, finding a simulacrum of compromise that can please—or displease—enough people in the right ways to win at the ballot box and in the legislative chambers becomes a Sisyphean ordeal that would perhaps evoke more sympathy were the people involved not, as politicians are, powerful and duplicitous.

Somewhere along the Sisyphean route, my home-state Senator and declared presidential candidate Marco Rubio has gained a cascade of (mostly favorable) attention for his encouraging approach to issues that affect the lives and livelihoods of gay Americans. Since announcing his campaign for the Republican nomination, the Floridian made headlines for affirming his willingness to attend a same-sex wedding and his understanding that being gay is not a choice. While these are certainly small steps, they are nonetheless welcome.

Let’s get the obvious out of the way first: Marco Rubio remains as personally opposed to same-sex marriage as Hillary Clinton passionately was until she changed her mind in 2013—a process most Americans have experienced and millions are still undergoing. On a policy level, Rubio retains the states-rights view of marriage that Hillary Clinton championed right up until a week ago. If that is a single-issue deal-breaker—or if you’re an unrepentant liberal—there is little more to say, though I appreciate your reading these words anyway.

However, for genuinely independent, persuadable voters and right-leaning folks who support gay rights, Sen. Rubio is demonstrably among the most appealing candidates in the field of 2016. This development is probably not too surprising for those who have been paying attention to the Miami-native’s approach to LGBT issues, as Rubio has been working to understand and include gay Americans and their political allies for some time now.

According to Gregory Angelo, Executive Director of the Log Cabin Republicans, Rubio’s Senate staff has held regular quarterly meetings with the pro-gay conservative group. (Though I am a member of Log Cabin, I haven’t met with Rubio staffers in that capacity.) Back in January, the junior Senator from Florida stated that he would not contest a Supreme Court ruling in favor of same-sex marriage rights. He’s made true on those remarks by declining to endorse Ted Cruz’s proposal to restrict marriage rights currently available through court order to same-sex couples, as well as refusing to sign—to the enduring umbrage of Maggie Gallagher—a recent amicus brief urging the Supreme Court to enact a ruling to that effect. (Full disclosure: my boyfriend, several friends, colleagues, and I are signatories to the opposing brief in the same case.)

While Rubio’s position is by no means an endorsement of the Supreme Court recognizing a constitutional right to same-sex marriage—which new position Hillary discovered, through a spokesman and with appreciably less brio than her original opposition, three days after her second presidential announcement—there is no daylight between how the executive branch would engage such a ruling under a President Rubio vs. a President Clinton.

Of course, gay rights concerns extend beyond marriage policy, and so does Rubio’s record of public remarks. In summer 2014, the devout Catholic gave a speech on marriage policy and judicial rulings at Catholic University where he acknowledged that multiple levels and institutions of government have discriminated horrifically against gay Americans.

I’ll let Sen. Rubio speak for himself:

“We should acknowledge that our history is marred by discrimination against gays and lesbians. There was once a time when the federal government not only banned the hiring of gay employees, it required private contractors to identify and fire them. Some laws prohibited gays from being served in bars and restaurants. And many cities carried out law enforcement efforts targeting gay Americans.

Fortunately, we have come a long way since then. But many committed gay and lesbian couples feel humiliated by the law’s failure to recognize their relationship as a marriage. And supporters of same sex marriage argue that laws banning same sex marriage are discrimination.

I respect their arguments. And I would concede that they pose a legitimate question for lawmakers and for society.”

It would have been easy enough for a Republican presidential hopeful to elide or gloss over our country’s sordid history of anti-gay persecution. After all, most Americans are unaware of terrors like the McCarthy-era Lavender Scare—in which the federal government systemically hunted and purged gay civil servants and proscribed their employment until the 1990s—or not-that-long-ago prohibitions on serving gay customers in public bars, as was the law in places like New York City. Likewise, many people believe, erroneously, that national anti-discrimination laws already protect people from being fired for being gay. (In fact, 29 states lack such protections.) Yet, without prodding, Sen. Rubio spoke a difficult truth that showed, among other things, that he listens to and cares about the diverse array of voters he represents and aspires to serve.

When he revisited the issue in the wake of the RFRA battle in Indiana, Rubio reaffirmed his commitment to religious liberty (though he did not, as some parties lazily suggested, endorse either version of the Indiana law) and declared unequivocally that the laws of this country should not sanction anti-gay discrimination—putting him squarely in sync with most Americans. To quote him again:

“No one here is saying it should be legal to deny someone services at a hotel or at a restaurant because of their sexual orientation. I think that is a consensus view in America.”

People can disagree about whether conservative Muslims and Christians should be forced to violate their religious beliefs by participating in same-sex weddings. But I would ask those who would dismiss Rubio’s sympathies for business owners’ rights of conscience regarding same-sex weddings to elucidate the coherent principle by which they would allow gays, Jews, African Americans, or anybody decent from compulsory service to events of the Westboro Baptist Church or KKK (both of which, it’s worth noting, purport to be religious organizations). To paraphrase a friend: our rights and freedoms are defined by the edge cases that make us uncomfortable, not the easy-seeming ones that require sacrifice only from our sociopolitical opponents.

While he’s not a perfect candidate, the growing sentiment of tolerance and inclusiveness underlying Rubio’s campaign suggest a realistic foundation for how the Republican Party can move beyond the divisive decades of the matrimonial culture wars. Perhaps his broader aura of constructive, forward-looking optimism will help Rubio sublimate his post-announcement bounce in the polls into an indomitable campaign for the nomination and the White House. Who knows? We’re still several seasons away from the primaries, and politics is a fickle game.

But if you’re one of those many almost-Republicans who have long been alienated by the GOP’s mean-spirited past on gay issues, candidates like Marco Rubio might have a whole new world of political opportunity to offer. Either way, at least we can all agree that same-sex marriages probably aren’t killing babies, whether or not Rick Perry ever figures out if he would attend a wedding.

A Faith in Rainbows

“There can be no covenants between men and lions, wolves and lambs can never be of one mind, but hate each other out and out an through. Therefore there can be no understanding between you and me, nor may there be any covenants between us, till one or other shall fall.” –Homer

Said Hector to Achilles—& a lot of Greeks and Trojans to a lot of other Greeks and Trojans (c.f. The Oresteia).

In a way, the culture war (or what’s left of it) over recent state permutations of the federal Religious Freedom and Restoration Act (RFRA) is the latest instantiation of America’s ever rising sociopolitical polarization. A cursory look at the divergent media coverage shows the predictable degree to which some partisans of either side dismiss the rhetoric of their opponents as symptoms of debilitating paramnesia. Liberals think the most recent incarnation of RFRA in several red states is carefully tailored to allow discrimination. RFRA’s defenders counter that the altered provisions in Indiana would not trump anti-discrimination laws, as such a thing has never happened.

As in many things, it seems people of different views are increasingly living in different worlds.

Yet it seems we are crashing upon the last shores of the tide of gay rights in America. After all, Arkansas Gov. Asa Hutchinson cited his son’s opposition in deciding to renounce support for an Indiana-style RFRA bill in Mike Huckabee’s old stomping grounds—and the red-state Republican even went so far as to openly ponder signing an anti-discrimination order for state workers.

Among Republican presidential hopefuls’ varying levels of support for the new RFRA’s stated intentions, I was most encouraged to see my home-state Senator Marco Rubio explicitly affirming the mainstream view in favor of anti-discrimination laws for gay people while supporting religious liberty. Refreshingly, Rubio’s statement follows naturally from his prior acknowledgement, in a speech at Catholic University, that federal and local governments once required anti-gay discrimination under color of law of. In this way, his statements are probably the closest to the truth of things of any candidate on either side of the aisle.

As the Indianapolis Star (which endorsed Indiana Gov. Mike Pence’s 2012 election) prominently argued, our laws can protect both LGBT and religious people (an overlapping set) with versions of RFRA that explicitly complement anti-discrimination laws. Such harmony exists already in several states, including the bastion of cultural conservatism that is Utah—a state so dominated by Mormonism that it mandates beer be watered down and cocktails be prepared behind “curtains” of modesty lest righteous teetotalers be tempted through sinful spirits.

Like many gay rights proponents from left to far right, my friend Gregory Angelo, executive director of the Log Cabin Republicans (and a Christian), expressed skepticism that Pence and the Indiana legislature will avoid substantive gay rights measures and aggravate all sides with half-measures. Other friends, like guest poster Lyman Stone, share an opposite concern with several other religious conservatives and sympathetic voices: that the Left’s abnegation of the original federal RFRA indicates gay rights activists will never allow, as Ross Douthat puts it, religious opponents of same-sex marriage to negotiate amicable terms of surrender in the late unpleasantness.

Said Achilles before vengeance: There can be no covenants between men and lions.

So let’s be blunt: the culture war is, on some level, about sociopolitical annihilation—that is, there are views that some folks earnestly believe ought to be expelled from the aegis of civil society.

For those familiar with the history of anti-gay discrimination, including the government-mandated homophobia of the 1950s Lavender Scare and the later ballot-box malignance of Anita Bryant and the Family Research Council, modern protests aimed at the cultural extirpation of the old adversary—homophobia—that was intolerable when it was powerful and is now deemed pitiful—but not pitiable—when it is weak, may seem just, perhaps divinely so.

But today’s religious dissidents to same-sex marriage are not the crusading bigots of yesteryear—as exemplified by the contemplative nuance of Rubio—and it seems unlikely that such entrenched bigotry will ever reign again.

Whatever one thinks of neo-RFRA proponents’ true intentions, Gov. Pence is manifestly on point in arguing that religious freedom laws have provided substantial legal protections to people, often of religious minorities, facing impositions on their faith that have nothing to do with gay rights. Repealing federal and state versions of RFRA outright, as many liberals have advocated since Hobby Lobby, would undercut those laws’ substantive protections for imprisoned Muslims, Amerindian kindergarteners in Texas, Indiana’s newly state-approved Church of Cannabis (because politics makes strange bong-fellows), and so many others.

RFRA opponents content to dismiss, while high on schadenfreude, religious freedom concerns in order to ruin perceived bigots should reckon with the collateral damage of that Shermanesque march to the fiery shores of “progress.” This may not be the intention—funny how word keeps coming up—of most anti-RFRA activists, but it is the reality all the same. As even Matt Yglesias of Vox, of all people in all media, pointedly acknowledged (backhandedly, of course), there is more validity than many liberals would rather admit to social conservative fears of a slippery slope beyond their disintegrating trenches in the culture wars. This is especially true when one considers the breathless hypocrisy of “pro-gay” liberals who, say, boycott Indiana and then jet off to Cuba.

None of this is to say that conservatives shouldn’t perhaps be more empathetic to RFRA skeptics who are unwilling to trust the rhetoric and legislative priorities of people they believe to harbor what could be most charitably described as sanguine indifference (and less charitably as outright hostility) to LGBT rights, especially given the aforementioned history of anti-gay vitriol from the government to the pulpit. After all, this sort of skepticism—which extrapolates likely consequences of ambiguous laws from perceived motivations of the most zealous supporters—inclines RFRA skeptics to infer anti-gay maneuvering from people opposed to gay rights for the same genre of reasons that gun rights advocates recognize (correctly) a Trojan horse in many a liberal proposal for “common sense” gun control.

In such cases, opponents of controversial reform (gun control, RFRA, etc.) do not trust that the reformers are dealing honestly when claiming a new law would not do (erode gun rights, allow/foment discrimination against gay couples, etc.) what opponents strongly suspect the reformers wish to do (ban guns, undercut gay rights, etc.).

To some extent in some quarters, this divide will not be bridged. For other situations, pairing robust RFRA protections with LGBT anti-discrimination provisions will be a vital way to convey good will where none is currently inferred. Such a harmony will not satisfy everybody. If that means gay rights opponents will have to withstand liberal opprobrium or religious freedom advocates will have to overcome some religious hostility to gays, so be it. An enduring union of those who seek tolerance and comity it should rally the better angels of the majority of Americans who want to do right by their neighbors.

Or so we can hope.

Guest Post: How Will Life Go On After RFRA?

The following is guest post from my friend Lyman Stone. The views expressed are solely Lyman’s own, and do not reflect his employer, USDA’s Foreign Agricultural Service. If you, dear reader, are interested in adding your own voice and perspective to Token Dissonance, get in touch with my by email, and we can chat.

“What makes this response particularly instructive is that such bills have been seen, in the past, as a way for religious conservatives to negotiate surrender — to accept same-sex marriage’s inevitability while carving out protections for dissent. But now, apparently, the official line is that you bigots don’t get to negotiate anymore.” –Ross Douthat

By Lyman Stone

The “gay” fountain loves show tunes and can’t donate water to the Red Cross.

As I know Rek’s usual readership keeps up with the news, I’ll skip the summary of events surrounding Indiana’s RFRA (and now potentially Arkansas’ as well) as well as any argument as to what the RFRA actually implies for life in Indiana. These may be interesting questions, but the reader is doubtless as well equipped to answer those questions as I. Rather, Rek asked me to write a guest post in response to a line of speculation I advanced: What happens next? So we’ve got some RFRAs with allegedly new, unique, and uncertain provisions that LGBT activists believe are intended to enable discriminatory treatment. There’s a boycott movement against Indiana with, apparently, some real teeth to it. Governor Pence of Indiana has promised to offer “clarification,” while Governor Hutchinson of Arkansas has suggested he wants the bill before him revised to look more like the Federal RFRA. On face value, it looks like LGBT activists may be able to chalk up a win. But there are some unresolved questions here.

Let’s say that the Indiana RFRA is clarified in such a way as to offer protections of LGBT individuals. Indiana does not currently afford such protections, thus such a change would be momentous. Would LGBT activists then go on to other “red” states, crusading for the passage of gay-friendly RFRAs?

The key argument against Indiana’s RFRA is not that it will actually create discrimination, or even legalize discrimination: it’s already legal in Indiana to discriminate against gay people. The argument is that Indiana’s RFRA shows bad intentions; that Hoosier legislators are haters, and haters should be punished by society on the whole. The argument isn’t about policy details, which is why all the explanations about past RFRA usage and compelling interests, etc, aren’t going to change any minds. If you press those most vocally for or against Indiana’s RFRA, it becomes clear that neither side even knows what effect the RFRA will have. Those shouting loudest on this issue tend to support or oppose RFRA primarily as a way of showing solidarity as allies and striking a blow for, respectively, religious liberty or gay rights.

I say striking a blow for a reason: the fight isn’t about what either side is for, but about what, and especially who, they are against. Or, at least, from the perspective of a liberty-minded social conservative like myself, that’s what it looks like.

It does not have to be this way. Either side could outflank the other handily enough. If RFRA advocates paired Indiana-style RFRA bills with non-discrimination provisions and beefed-up free speech and expression rules, they might not win the LGBT activist base, but they could neuter the most effective criticisms, address the areas that create the biggest concern for conservatives, and provide enough “wins” for supporters of civil liberties to credibly show that “No Gays Allowed” signs are neither the goal or consequence of religious freedom advocacy. On the other hand, if LGBT advocates get non-discrimination laws making LGBT-identifying individuals a protected class attached to a similarly robust RFRA (perhaps in a blue or purple state), they could capture much of the base of support for RFRAs among moderate social conservatives who, rightly or wrongly, worry about religious liberty issues.

If neither side tries such tactics (yes, LGBT advocates have tried to attach non-discrimination laws to RFRAs in red states, but mainly by using language that amounted to poison pills, because the goal was to kill RFRA—discrimination protections or not), then, paradoxically, both sides will probably prove their worst impressions of each other. If conservatives won’t introduce any kind of “clarification” or “fix” aimed at preventing a future of segregation by sexuality, the LGBT community will have ample cause to view conservative-backed RFRAs as Trojan horses, within which lies the promise of entrenched discrimination. On the other hand, if LGBT advocates persistently degrade and demean efforts to protect religious liberty—and respond to such proposals with concerted efforts to drive up unemployment with boycotts that broadly hurt even those with no connection to the laws in question—then conservatives will be entirely justified in calling for more, and more robust, RFRAs. Spitefulness begets spitefulness.

The RFRA in Arkansas did not move through the legislature despite the Indiana boycott, but because of it. LGBT advocates should not be shocked if other states respond to “boycott Indiana” by adopting new RFRAs as well. Watching Indiana be pilloried, punished, and shamed for providing what, to many conservatives, seem like pretty anodyne protections for religious liberty might dissuade other conservatives from taking up the cause, as LGBT advocates hope. Or, and I find this rather more likely, it may lead to religious folk having a deepened sense of isolation and a heightened concern for their own apparently-besieged liberty, and thus pressing harder for RFRAs.

I see this even in my own experience: when the Arizona RFRA was debated, I was extremely skeptical of the idea, and argued against many of my fellow conservatives who believed it was a necessary and good law. But watching the treatment of religiously motivated conservatives in Indiana has altered my frame of reference. The LGBT community seems far more vindictive and far less open to compromise on this issue than I would have expected. Innocent Hoosiers, whose state has languished through Rust Belt decline for decades, are going to suffer so that activists nationwide can make a statement about a law that nobody actually understands and will probably have very little effect anyway.

My goal here is not to try to convince others to adopt a given policy position. Rather, I hope to offer an insight, however speculative, into the worsening future that social conservative activists and gay activists are creating together with alarming speed.

So for me, a pretty deep-red and quite religious social conservative with far too many gay friends and loved ones to write off their experiences, the question is: will either side actually show an interest in governing a diverse society?

I hope so.

Right Quick: Freedom from (Religious) Freedom

It seems like only yesterday two days ago that I was evaluating the Left’s supremely disingenuous attacks on the Hobby Lobby ruling that affirmed congressionally enacted protections for religious liberty. Those who remember that post from all those hours ago may recall that I challenged progressives to come clean about the nature of their mendaciously hysterical objections to a legally sound ruling and campaign openly against the Religious Freedom Restoration Act, if they have indeed renounced it to the partisan tune of Ruth Bader Ginsburg.

Now, as we prepare to celebrate the signing of our civil-rights-affirming Declaration of Independence, the zealously progressive Freedom From Religious Freedom Religion Foundation is gleefully patronizing the hack-liberal august New York Times with a full-page ad calling for the repeal of RFRA.

How dare people who create jobs and hire people be religious?! #OUTRAGE

Well that didn’t take long.

In the ad and the news release about it, the Freedom from Tolerance Religion Foundation champion the discredited trope that the Supreme Court ruling allows “employers to decide what kind of birth control an employee can use” or has anything to do with gender on the bench.

Of course, in reality (which we have been told has a liberal bias), the law merely frees closely held or nonprofit corporations (whether churches, schools, family-owned companies, or what have you) from having to pay for some types of contraception—an accommodation the administration itself already extended to certain corporations (a key point made in the ruling, for those who bothered to read it). Employers will still have no say (or interest) in what employees do with their own money, and anyway, no woman will lose access to birth control. But since the Freedom from Pluralism Religion Foundation is so enthusiastically shaming folks for supposedly objectionable views, let’s take a closer look at that ad:

“The photo of the woman at top is that of Margaret Sanger-idol of the pro-choice movement (and the founder of Planned Parenthood) who — this has been all but erased from the panegyrics to her greatness — was a proponent of eugenics. She was, in the words of Arina Grossu a ‘racist, eugenicist extraordinaire’ whose role in pushing these Nazi-like laws resulted in more than 60,000 sterilizations of vulnerable people, including people she considered ‘feeble-minded’, ‘idiots’ and ‘morons.’ She also spoke to KKK women’s groups.

But what is worse is this line from the ad:  ‘All-male, All-Roman Catholic Majority on Supreme Court Puts Religious Wrongs over Women’s Rights.’

Anti-Catholicism apparently is no problem for this group. Should there be a religious test for public office or the highest court of the land?”

How far the progressive antagonists of the RFRA-affirming Court will go in attacking religion, from Catholicism to President Obama’s own political allies in communities of faith, will be an interesting thing to watch.

The Talents of Christian Vocation

“Wherefore by their fruits ye shall know them.” –Matthew 7:20

Mene, Mene, Tekel, Upharsin…

In the wake of the Hobby Lobby case, which has been decided by the U.S. Supreme Court narrowly affirming the codified rights of people who lead closely-held corporations, the once steadfast commitment on the Left for religious freedom appears to have all but collapsed. My friend Yishai Schwartz in the New Republic blames this liberal apostasy on the excesses of conservative opposition to Obamacare.

Commentary Magazine’s Seth Mandel dutifully addresses the undercurrent of victim-blaming that transmogrifies Schwartz’s insightful observation into a distressing bit of progressive apologia—after all, what were the owners of Hobby Lobby, their peers, and supporters to do? Void their actual conscience in the name of abstract “conscience protections”? Aggressively police the partisan media narrative of a case they could never hope to control?

Among many avowed progressives, Ruth Bader Ginsburg’s acerbic dissent (the core of which was joined only by Justice Sotomayor) is something of a new Gospel of slippery slopes that the majority has now unleashed in the name of God. Of course, Ginsburg’s parade of horribles is exceedingly disingenuous and painstakingly countered in the very ruling she contests, but we’ll come back to that point soon.

Like many of Ginsburg’s dissenting fans, Jonathan Merritt, who has profited handsomely from his public Christianity, shores up the rising progressive consensus against religious liberty by attacking the notion of Christian businesses. He has made the following point repeatedly, in famously hostile faith-friendly media like MSNBC, before and since the Hobby Lobby decision:

“Additionally, conservative evangelicals believe that a Christian is a person who is actively engaged sanctification, the process of becoming more holy. They accept that this process is accomplished by the work of Christ through the indwelling of the Holy Spirit. But a corporation can neither accept Christ nor be indwelt by the Holy Spirit.

So if someone (or something) can claim the label “Christian” without repentance, belief, salvation, or sanctification, what is left? Or put a finer point on it, what makes a corporation “Christian” exactly?”

It almost goes without saying among the faithful that this liberally secular misconception of how many Christians view their work is precisely backward. Ironically, Merritt touches on the reason behind this truth in his attempt to deny it:

“If the Bible is your ultimate guide, the only organization one might rightly term “Christian” is a church. And this is only because a church in the New Testament is not a building or a business, but a collection of Christian individuals who have repented, believed on Christ, and are pursuing a life of holiness.”

For Christians who have “repented, believed in Christ, and are pursuing a life of holiness,” obedience to God permeates every aspect of life, from the rearing of children to the vocations by which we serve our neighbors, promote the Gospel, and support our families and communities. It is profoundly unchristian to suggest that born-again believers ought to abandon the Word at the precise point at which they gain the ability to minister to the unbaptized world at large.

This very point is arguably at the heart of the parable of the talents in Chapter 25 of the Gospel according to St. Matthew. To start with the obvious, the Lord pointedly rewards the servants who turned a profit on the talents he invested in them for the fact that they turned a profit in his honor. As for the non-profit(able) servant, the Lord also had a lesson (Matthew 25: 26-28, NJKV):

“But his lord answered and said to him, ‘You wicked and lazy servant, you knew that I reap where I have not sown, and gather where I have not scattered seed. So you ought to have deposited my money with the bankers, and at my coming I would have received back my own with interest. Therefore take the talent from him, and give it to him who has ten talents.’”

Before we go any further, let me be clear that I am not not engaging in a theological debate on New Testament hermeneutics. This parable, like any other, is open to all manner of interpretation and moralizing, and individuals in different denominations reach different conclusions for divergent reasons. I bring this parable up only to shore up what many a conservative (or liberal) Christian already knows—one’s vocation (whether in a closely-held for-profit company or otherwise) is often an extension of the ministry of one’s faith, and the economic and political compartmentalization that seems so natural to some (particularly secular) folks strikes many a true believer as a Petrine exercise in denying Christ.

Put simply, it is useless and unproductive to dismiss the faithful to an extraneous audience by progressively “mansplaining” their own beliefs to them. The real issue in this case is whether we, as a nation, will value and protect religious freedom, or not.

Here we should note that, contrary to what some might like to pretend for partisan—or perhaps ingenuously obtuse—reasons, Antonin Scalia’s Employment Division v. Smith decision profoundly limiting the prerogative of religious objection to generally applicable laws remains binding constitutional precedent. That precedent is not abrogated because the Court has now acknowledged the current government’s actions run afoul of a duly enacted law of Congress (the Religious Freedom Restoration Act) long understood—and demonstrated, even under the Obama administration—to protect religious rights beyond the point of incorporation.

For the proof, let us go to the ruling. In the first place, there is a test for how religious freedom claims are to be evaluated for exemption:

“The Religious Freedom Restoration Act of 1993 (RFRA) prohibits the “Government [from] substantially burden[ing] a person’s exercise of religion even if the burden results from a rule of general applicabil- ity” unless the Government “demonstrates that application of the burden to the person—(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.””

And lest you get caught up, as is fashionable, one the term “person,” the majority notes (my emphasis):

“HHS argues that the companies cannot sue because they are for-profit corporations, and that the owners cannot sue because the regulations apply only to the companies, but that would leave merchants with a difficult choice: give up the right to seek judicial protection of their religious liberty or forgo the benefits of operating as corporations. RFRA’s text shows that Congress designed the statute to provide very broad protection for religious liberty and did not intend to put merchants to such a choice. It employed the familiar legal fiction of including corporations within RFRA’s definition of “persons,” but the purpose of extending rights to corporations is to protect the rights of people associated with the corporation, including shareholders, officers, and employees. Protecting the free-exercise rights of closely held corporations thus protects the religious liberty of the humans who own and control them. Pp. 16–19”

In case your objection, like Merritt, is over whether a corporation is for- or non-profit (and here let us remember, as Schwartz notes, that churches, newspapers, schools, and other charities are all corporations), the justices also have an answer:

“HHS and the dissent nonetheless argue that RFRA does not cover Conestoga, Hobby Lobby, and Mardel because they cannot “exercise . . . religion.” They offer no persuasive explanation for this conclusion. The corporate form alone cannot explain it because RFRA indisputably protects nonprofit corporations. And the profit-making objective of the corporations cannot explain it because the Court has entertained the free-exercise claims of individuals who were attempting to make a profit as retail merchants. Braunfeld v. Brown, 366 U. S. 599. Business practices compelled or limited by the tenets of a religious doctrine fall comfortably within the understanding of the “exercise of religion” that this Court set out in Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872, 877. Any suggestion that for-profit corporations are incapable of exercising religion because their purpose is simply to make money flies in the face of modern corporate law. States, including those in which the plaintiff corporations were incorporated, authorize corporations to pursue any lawful purpose or business, including the pursuit of profit in conformity with the owners’ religious principles. Pp. 20–25.”

But, Smith! you (and Ginsburg) say, noting its appearance in the prior passage:

“Also flawed is the claim that RFRA offers no protection because it only codified pre-Smith Free Exercise Clause precedents, none of which squarely recognized free-exercise rights for for-profit corporations. First, nothing in RFRA as originally enacted suggested that its definition of “exercise of religion” was meant to be tied to pre-Smith interpretations of the First Amendment. Second, if RFRA’s original text were not clear enough, the RLUIPA amendment surely dispels any doubt that Congress intended to separate the definition of the phrase from that in First Amendment case law. Third, the pre-Smith case of Gallagher v. Crown Kosher Super Market of Mass., Inc., 366 U. S. 617, suggests, if anything, that for-profit corporations can exercise religion. Finally, the results would be absurd if RFRA, a law enacted to provide very broad protection for religious liberty, merely restored this Court’s pre-Smith decisions in ossified form and restricted RFRA claims to plaintiffs who fell within a category of plaintiffs whose claims the Court had recognized before Smith. Pp. 25–28.”

The majority even goes so far as to assume the prerogative of the government to mandate cost-free contraception:

“The Court assumes that the interest in guaranteeing cost-free access to the four challenged contraceptive methods is compelling within the meaning of RFRA. Pp. 39–40.

(2)The Government has failed to satisfy RFRA’s least-restrictive-means standard. HHS has not shown that it lacks other means of achieving its desired goal without imposing a substantial burden on the exercise of religion. The Government could, e.g., assume the cost of providing the four contraceptives to women unable to obtain coverage due to their employers’ religious objections. Or it could extend the accommodation that HHS has already established for religious nonprofit organizations to non-profit employers with religious objections to the contraceptive mandate. That accommodation does not impinge on the plaintiffs’ religious beliefs that providing insurance coverage for the contraceptives at issue here violates their religion and it still serves HHS’s stated interests. Pp. 40–45.”

Taking into account all of Ginsburg’s objections faithfully, the majority nonetheless observes that existing U.S. law—not the Constitution, mind you—requires more accommodation of the religious beliefs motivating closely-held corporations, whatever the profit motive, than Obamacare’s unelected regulators allowed. (Here we should note that Justices Kagan and Breyer pointedly renounced Ginsburg’s musings against RFRA’s protections for profit-making corporations.)

And let’s be clear, as the President would say, that the Obama administration essentially argued that closely-held corporations should be forced to fund everything from non-kosher products (whether Jewish or Muslim) to late-term abortions to assisted suicide were government bureaucrats to mandate it. If opponents of this ruling are fine with that reasoning, they should say so openly and clearly.

As for the supposedly slippery slope, the majority notes the slide is actually quite sticky (my emphasis):

“The principal dissent raises the possibility that discrimination in hiring, for example on the basis of race, might be cloaked as religious practice to escape legal sanction. See post, at 32–33. Our decision today provides no such shield. The Government has a compelling interest in providing an equal opportunity to participate in the workforce without regard to race, and prohibitions on racial discrimination are precisely tailored to achieve that critical goal.

… HHS analogizes the contraceptive mandate to the requirement to pay Social Security taxes, which we upheld in Lee despite the religious objection of an employer… We noted that “[t]he obligation to pay the social security tax initially is not fundamentally different from the obligation to pay income taxes.” 455 U. S., at 260. Based on that premise, we explained that it was untenable to allow individuals to seek exemptions from taxes based on religious objections to particular Government expenditures: “If, for example, a religious adherent believes war is a sin, and if a certain percentage of the federal budget can be identified as devoted to war-related activities, such individuals would have a similarly valid claim to be exempt from paying that percentage of the income tax.” Ibid. We observed that “[t]he tax system could not function if denominations were allowed to challenge the tax system because tax payments were spent in a manner that violates their religious belief.” Ibid.; see O Centro, 546 U. S., at 435.

Lee was a free-exercise, not a RFRA, case, but if the issue in Lee were analyzed under the RFRA framework, the fundamental point would be that there simply is no less restrictive alternative to the categorical requirement to pay taxes.”

So contrary to what you may have heard, contraception is and will be no less accessible now than it was just two years ago. Corporations, like individuals, will still generally and broadly be compelled to follow laws. Women, gay people, nonbelievers, and so on will be no more oppressed tomorrow than they were the day before yesterday. And the Supreme Court is not in the business of legislating the hyperbolic political grievances of the Left (or the Right). The only legitimate grounds for opposing this ruling is either because one believes, as Breyer and Kagan do, that the contraception mandate passes the RFRA test (an understandable disagreement) or because one outright opposes RFRA.

If Democrats honestly now believe the once bipartisan consensus for protecting religious freedom—forcefully promoted by such disparate voices as Orrin Hatch and Ted Kennedy (who explicitly endorsed the two-part RFRA test Justice Alito quotes in the majority decision)—is analogous to Apartheid and Jim Crow, or comparable to slavery and segregation, then they should act accordingly. As New Jersey Republican Gov. Chris Christie helpfully noted in his principled  evasion of a response to the Hobby Lobby ruling:

“When…your Supreme Court makes a ruling [you] gotta live with it, unless you can get the legislative body to change the law or change the Constitution.”

If liberals and progressives are willing to admit their opposition to RFRA and campaign accordingly, then I, like many a conservative, welcome the opportunity for honest debate about American values and sound policy in the modern era. Otherwise, all this Ginsburg-fueled partisan mendacity is little more than a tale told by an idiot, full of sound and fury, signifying hackery nothing.

The Gay Republic

“President Obama promised to…heal the planet. My promise is to help you and your family.” –Mitt Romney

Gays want balconies now, too? Next thing you know, they’ll want dignity, respect, and to vote Republican!

Social issues are not merely wedge issues. The casualties of the culture wars are the broken families destroyed by failed policy and left to wilt in ruined American homes. These cultural struggles are deeply personal for those invested, and refusing to reckon with how much real people stand to lose when politicians make bad social policy is essentially punting the long game to claim what is, at best, an evanescent victory and, at worst, a Pyrrhic loss. Families in pain still vote, and they get angrier and more focused the more they’re wronged.

It is the armor of this knowledge that underscores the push to promote Todd Akin as the symbol of a Party that would enslave the wombs of American women to the rapacious whims of strangers. That Governor Romney has disavowed this position is an inconvenient aside to be overlooked. This knowledge also fuels the simmering debate over the fate of gay Americans after January 20, 2013. A recent salvo from the Huffington Post listed five reasons gay American should be terrified of a Romney presidency. So let’s evaluate the claims.

1. Romney is adamantly against same-sex marriage

Not to belabor a zombie horse, but this was true of the Obama-Biden ticket in 2008. The question now, as in 2008, isn’t really about what marriage positions a candidate professes. Rather, it’s about how much we should weigh that position against the total package a candidate offers. It is profoundly unlikely that a viable marriage bill of any kind will emerge in the next term, and even Obama isn’t calling for federally enacted marriage equality.

More to the point, any bills that manage to survive a Senate filibuster and a tumultuous House will almost certainly earn the president’s signature, whoever that president is. Romney is a pragmatist; if his campaign is any indication, he will not squander political capital just to screw over gay people or anybody else. To put it bluntly, this election is not about gay marriage, and to pretend otherwise is to jeopardize the future of America for a leprechaun hiding in a rainbow.

2. Romney’s a flip flopper on LGBT issues – Romney publicly supported LGBT rights in his 1994 campaigning for Senator against Ted Kennedy but…Over the past decade, though, he’s moved to the opposite side of the fence and vehemently opposes LGBT rights on many fronts in this current campaign.

This point is, at best, an exaggeration, at worst, a tendentious bit of flailing. Romney has consistently stood by his support for limited domestic partnerships. This is why he opposed the broadly restrictive no-gay-unions-period Massachusetts marriage amendment—even when the Democratic Speaker of the House and Romney’s own wife and son supported it—but not the narrower don’t-call-it-marriage federal one. More importantly, Romney never said he would be more liberal than Ted Kennedy on gay rights. What he promised to be was more effective in pursuing equality for LGBT Americans. His actual words were:

“There’s something to be said for having a Republican who supports civil rights in this broader context, including sexual orientation. When Ted Kennedy speaks on gay rights, he’s seen as an extremist. When Mitt Romney speaks on gay rights, he’s seen as a centrist and a moderate. It’s a little like if Eugene McCarthy was arguing in favor of recognizing China, people would have called him a nut. But when Richard Nixon does it, it becomes reasonable. When Ted says it, it’s extreme; when I say it, it’s mainstream. I think the gay community needs more support from the Republican Party, and I would be a voice in the Republican Party to foster anti-discrimination efforts.”

This point remains broadly true today. Marriage equality would not exist in New York without the Republican State Senate bringing it up for a vote and four Republican state senators voting for its passage. Likewise, gay marriage would have been annulled in New Hampshire but for the hundred or so Republicans voting against repeal. And let’s not forget the Republicans who helped push DADT repeal over the top.

It will not be possible to achieve LGBT equality nationally without conservative support. Although he has not pressed the point lately, Mitt Romney remains committed to that support, and his position as head of the Republican Party arguably gives leverage and cover to Congressional Republicans who believe “dignity and respect” have political content.

3. Romney reportedly bullied gay classmates in high school

Wait, are you serious? We’re judging candidates for President of the United States based on incidents from high school? And you wonder why all this all this nonsense over Obama’s time at Columbia. If high school is relevant, college certainly is—you’re at least a legal adult in college. But in case it helps, Romney apologized. Now let’s move on.

4. Mitt has opposed LGBT inclusion on hate crime legislation – Mitt Romney vetoed a bill funding hate crimes prevention during his tenure as governor in Massachusetts in 2003. In fact, he cut all funds to hate crime prevention after taking gubernatorial office, which forced an anti-bullying focused Take Force to let its entire staff go. The group remains disbanded.

It’s unclear what actually transpired in this case. The only source is a Wikipedia article citing dead links. It may be referring to Gov. Romney’s disbanding The Governor’s Commission on Gay and Lesbian Youth in 2006. However, that was tied to the legislature creating the functionally equivalent Massachusetts Commission on GLBT Youth. The commission has addressed bullying. In any case, a President Romney won’t overturn the Matthew Shepard Act, and his administration will prosecute crimes committed against LGBT people.

5. Romney doesn’t support same-sex parent adoption – The man with a large family – five children and 18 grandchildren – believes in denying children with no parents the chance to have a [dual]-guardian loving home if the two happen to be of the same sex. After accidentally mildly supporting same-sex parent adoption rights back in May, he retracted his statement and said, “I simply acknowledge the fact that gay adoption is legal in all states but one.” Back in 2006, Romney filed a bill in Massachusetts which allowed Catholic Charities’ adoption policies to overtly exclude same-sex couples.

This is actually two points: adoption and religious liberty. Adoption laws vary messily across the country, and it’s unclear what either president would do about this. Romney’s apparent waffling is not opposition. Moreover, his refusal to campaign against Obama’s support for marriage equality is curiously reminiscent of Obama’s refusal to actually oppose gay marriage while purportedly not believing in it before this year. Granted, Romney is no Obama. But behind the conflicting accusations of pandering, flip-flopping, and extremism is the reality of a pragmatic conservative who is playing the long game. Many staunch Republicans are broadly retreating from or outright opposing anti-gay policy, and a majority of Americans support gay unions. The pragmatist unwilling to make a campaign issue of gay marriage will not channel Tony Perkins in office with the Family Research Council well on the path to irrelevance.

To the second point, the state is not always obliged to accommodate religion, but it is not unreasonable for it to do so. You can believe in access to contraception without demanding a church violate its magisterium to provide it. You can believe a woman has the right to abortion without requiring that her bishop—or our government—foot the bill. And you can believe gay Americans have the right to marry and adopt without compelling the Holy See to blink. It does not follow from trying to compromise with Catholic charities—and thus keep them from closing—that Romney opposes gays adopting any more than tax exemptions for Scientology entail state endorsement of L. Ron Hubbard.

What matters in this election is that the president has failed. Unemployment is unyielding, entitlements court insolvency, the debt devours our inheritance, and all the administration has for us are tax returns and ad hominem. The Obama campaign has become a national analog to Ned Lamont, circa 2006—the Miltonian apotheosis of a monomaniacal fetish for being in opposition to the opponent. If that hackneyed approach couldn’t win in Connecticut for a Democratic nominee, what will it mean if we endorse it for the incumbent President of the United States?

The future is dim for any cause put in chains aboard a sinking ship. In a perfect world, Mitt Romney would be a perfect champion for equality. But as with Barack Obama in 2008, we cannot let the perfect be the enemy of the good. I want to get married someday and maybe have kids, but first my loved ones and I need steady jobs and a functional economy. We’ve weathered four years of billowing hope. Now it’s time for some change.

Conscientious Objection

“It would be refreshing, though, if it were expressed honestly, without the “of course we respect religious freedom” facade…Say what you really think: that the exercise of our religion threatens all that’s good and decent, and that you’re going to use the levers of power to bend us to your will.” –Ross Douthat

This Immaculate Contraception brought to you by the Obama Administration.

In case this needs to be reiterated, again (yes, I know that’s redundant): the contraception mandate in ObamaCare is a blatant infringement on free exercise of religion. Why many of its advocates will not admit as much—even as opponents concede the First Amendment isn’t absolute—is as peculiar as it is telling. Many on the Left are operating on the premise that serious religion is a marginal facet of social life that has little bearing on the practical world of serious people. But as the Supreme Court reminds us in Employment Division v. Smith, we can have a productive conversation about the nature of justifiable infringements on religious expression.

The curious impasse lies in liberals’ agitation for a “War on Women” and conservatives’ fears of becoming casualties of that campaign. But really, this isn’t about religious freedom, or even primarily about abortion. It’s about the complexities of fiscal compulsion, the content of our social obligations, and, of course, healthcare.

Is there a difference between being compelled to finance activities abominable to your values (e.g. Thoreau’s tax dollars in the Mexican-American War) and perform said activities (e.g. Thoreau hypothetically being drafted in that war)? Further, what constitutes legitimate uses of tax dollars? What are the limits of acceptable coercion, public or otherwise? What constitutes a properly religious space (a house, a school, a nursery)? Why do Democrats whine more about wars than the French? These are all complex and thoughtful questions that require serious interlocutors committed to discussion in good faith.

Don’t care to get into all those meaningful objections that affect real people and stuff? You needn’t worry; we won’t get around to having this national conversation. Bumper-sticker carnage and the “War on Women” make for much better entertainment in the media. Never mind the fact that the debates over abortion and women’s health decisions—which should and will continue—are not identical to the matter of taxpayers footing the bill for somebody else’s contraception.

But I have one last inquiry I hope you consider. Why should everyone subsidize free contraception? If your answer is that birth control has separate medicinal properties, why not treat it, in that capacity, like any other medicine? If you will answer that we need to make sure everyone is healthy; I agree. Everyone should have nutritious food, clean clothing, and good hygiene products, but we ordinarily charge people for those. If you have such aplomb that you will admit the government should subsidize our sexual freedom, then tell me more about your thoughts on conscientious objection or not having your tax dollars go to abstinence-only education, even if it might work.

Dear proponents of the mandate, my conservative friends may stop beating you with the Constitution if you acknowledge the legitimate concerns that these issues raise. If not, then there will be war. Just don’t whine about being oppressed.