This post by PFAW and PFAW Foundation Senior Legislative Counsel Paul Gordon was originally published in the Huffington Post.
Ted Cruz, Bobby Jindal, and other conservative leaders have recently lashed out against the Supreme Court's decision on marriage equality by proclaiming that local clerks who don't personally agree with marriage equality should not be required to issue marriage licenses or perform weddings for same-sex couples - even though it's their job to provide that service to the public.
Their logic is fundamentally flawed. Civil marriage is a civil function, not a religious one. Government employees allowing someone to access their legal rights are not doing anything religious, nor are they condoning the actions being licensed any more than with any other type of license.
That's why when government employees in our country have had religious objections to divorce and remarriage, they have still had to do their jobs. And when government employees have had religious objections to interracial marriages, they have still had to do their jobs. So, too, have government officials with other religious objections to whether or how certain couples get married.
But when the particular religious belief in question is opposition to lesbians and gays, that's apparently a different matter altogether. Now, suddenly, we're told that government employees need to have their religious liberty "protected."
A principle of religious liberty that is invoked only in the context of one particular religious belief is no principle at all. It is a pretext.
The far-right movement that is coalescing around these "protections" allowing civil servants to impose their religious beliefs on others and deny them service does not have clean hands in this regard. While they proclaim loudly that they just want to "live and let live," the policies they have pursued vigorously for decades have aggressively sought to prevent LGBT people from having basic human rights. The Right's new clamor for "protections" is just another form of homophobia.
If the religious right simply wanted to "live and let live," they would not have spent these past decades seeking to impose their religious beliefs about homosexuality on others both through custom and through force of law. They would not have boycotted television networks for airing shows portraying LGBT people as ordinary people. Nor would they have screamed bloody murder when popular celebrities came out of the closet. They would not have fought to prevent us from raising children. They would not have battled to ensure that surviving members of couples be denied Social Security survivor benefits. They would not have opposed letting us serve our country in the intelligence services or in the military. They would not have put so much energy into convincing Americans that we are sexual predators going after their children. They would not have tried to bar us from teaching in public schools. They would not have threatened us with criminal prosecution just for our private, consensual sexual conduct.
Whether it's religious refusals specific to marriage, more general Religious Freedom Restoration Acts in a post-Hobby Lobby world, or Sen. Mike Lee's misleadingly named "First Amendment Defense Act," the Right is yet again attacking LGBT people. With a growing number of Americans - and now the Supreme Court - affirming that the right to marry is a right guaranteed to all regardless of sexual orientation, some on the Right have come to understand that their best tactic to fight marriage equality is to couch their homophobic goals with the language of "religious liberty" instead of explicitly speaking out against LGBT rights. But it's up to all of us to make sure that they do not succeed in these efforts to portray themselves as virtuous defenders of religious liberty, because in reality they're just waging another war against LGBT people.
In response to a bill authorizing public officials to refuse to perform same-sex marriages becoming law in North Carolina this morning, Dr. Terence K. Leathers – a pastor at Mt. Vernon Christian Church in Clayton, North Carolina and a member of People For the American Way's African American Ministers In Action – released the following statement:
“Shame on our legislature for making this harmful and unnecessary bill become law. As a pastor, I believe this is not only a blow for the dignity of all North Carolinians but also a blow for true religious liberty.
“Governor McCrory did the right thing when he vetoed this bill, and the fact that our legislature overrode it shows just how far they will go in misusing the principle of religious liberty in order to discriminate. This is a sad day for our state.”
Last week, Dr. Leathers published an op-ed in The Huffington Post calling on the legislature not to misuse religious freedom to license public officials to discriminate.
Conservative religious leaders have been delighted to work with parts of corporate America – most notably the Koch brothers’ political networks – to elect candidates who back right-wing social and economic policies. Religious conservatives have championed Citizens United and the demolition of regulations on campaign cash. The Kochs even promote Religious Right leaders who tell their followers that the Bible opposes minimum wage laws, unions, and progressive taxes. But many of America’s biggest companies have also become supporters of equality for gay, lesbian, bisexual and transgender people, and that’s making religious conservatives angry.
When a number of major corporations pushed back hard against an anti-gay “religious freedom” law in Indiana, Gov. Mike Pence asked the legislature to amend the law to state that it would not allow businesses to discriminate. And that made the Religious Right furious. Reliably pro-business Republican presidential candidates like Mike Huckabee, Ted Cruz, Rick Santorum, and Bobby Jindal have been attacking big business support for gay rights in a sometimes awkward attempt at right-wing populist rhetoric.
Today’s mail brought a direct mail letter from the Family Research Council’s Tony Perkins complaining, “Big Business has joined the anti-Christian bullies!” Perkins warns that “the seduction of Big Business by the homosexual rights movement is the main reason that movement has gained such momentum over our freedom to believe and live according to those beliefs.” Perkins asks for donations to “Stop Big Business’s Assault on Religious Freedom” and to support an FRC initiative to talk to business leaders and bring them around.
Another direct mail piece from Perkins, this time for FRC’s political arm, FRC Action, arrived the same day, in an envelope emblazoned with, “When you can’t make a living because you’re a Christian…THAT’S NOT FREEDOM.” The letter complains that “big corporations are foolishly aligning with the Left’s social agenda” and pledges that FRC Action will help states “create and pass a protective wall of religious freedom laws.” Perkins gripes about business opposition to Indiana’s Religious Freedom Restoration Act:
The media published incredible false claims about what the law said and what the law would do. Hollywood celebrities, giant corporations, sports leagues, and even other states became a national lynch mob. They threatened and enacted boycotts of the state.
Tragically the governor ultimately caved in to these pressures. With the corporate community threatening boycotts and economic loss to the state, it appears that many political leaders in the state were more concerned about economic issues than moral truth, religious freedom, and the well-being of the family.
Over at conservative journal First Things, University of Notre Dame Professor Patrick Deneen says it is clear that in Indiana, “Republicans and Christians lost, Democrats and gay activists won.” (Of course this simplistic formulation ignores the Christian leaders who were allied with LGBT activists in opposing the law.) Deneen, a critic of both corporate capitalism and liberal democracy, blames the outcome in Indiana on business involvement:
Had the only appreciable opposition to RFRA come from gay rights activists, RFRA would have been a smashing political success for Republicans. It would have made the right enemies while generating gratitude and energy in the base. They did not expect their usual friends in corporate America to join the opposition, which was an idiotic miscalculation given the fact that establishment outrage scuttled the Arizona RFRA last year.
Deneen wrote last year that “The modern corporation and modern marriage are born of the same philosophical roots: rootless individuals seeking self-gratification in whatever way they see fit, short of ‘harming’ another.” In his First Things article, he portrays corporations standing with LGBT groups as a smart business decision given pro-gay shifts in public attitudes. But he calls the gay-rights collaboration between cultural and economic “elites” a dangerous alignment that is “ready to steamroll anyone in their way.” After Indiana, he says, “religiously based opposition to gay marriage is now more likely than ever to be treated by our society as tantamount to a hate crime,” and warns that the “elite-sanctioned attack on ‘bigotry’” will “reach inevitably into the sanctuaries of the churches themselves.”
As the Supreme Court prepares for arguments about the right to marry, PFAW Foundation Senior Fellow Jamie Raskin says our country may be “on the verge of a historic breakthrough.”
On Thursday, PFAW hosted a telebriefing for members and supporters on this historic moment in anticipation of oral arguments in the Supreme Court marriage cases (Obergefell v. Hodges) next week. PFAW Executive Vice President Marge Baker moderated a conversation among affiliate PFAW Foundation Senior Fellows Jamie Raskin and Elliot Mincberg as well as People For supporters who called in to join the discussion.
In the telebriefing, Raskin and Mincberg unpacked some of the questions before the court — not only whether states can prohibit same-sex couples from marrying or refuse to recognize marriages from other states — but also the implications of the various types of reasoning the justices may use to reach their decision.
They also reflected on the remarkable social transformation our country has seen on the rights of LGBT people. Raskin remembered that the 1986 Bowers v. Hardwick decision, which upheld the criminalization of “sodomy,” came out while he was in law school. With the Court’s steady march away from that kind of legal reasoning, he said, “there’s no going back from here.”
Mincberg pointed out that, unfortunately, the backlash has started before the Supreme Court even decides the cases. With “right to discriminate” legislation pending in more than a dozen states and a handful considering “marriage refusal” bills, it’s clear that the far Right is already forging ahead with a nationwide push to undermine the expanding rights of LGBT Americans.
Call participants shared some great questions and opinions, including a retired pediatric doctor who asked why the principles accepted by the medical community to take care of your patients rather than question or judge them have not been accepted by the political community as well.
Listen to the full telebriefing here:
The following is a guest post by Erik Lampmann, a 2011 Young People For (YP4) Fellow. It is cross-posted on the Alliance for Justice blog and the YP4 blog.
Federal courts routinely hand down judgments that affect everyday Americans at an immediate, painful, and personal level – for good or ill.
Consider the case of Seamus Johnston, a transgender student expelled by the University of Pittsburgh at Johnstown (UPJ) for his use of male restrooms and gym facilities on campus. When he sought redress for his experiences at the hands of UPJ, U.S. District Judge Kim Gibson, a George W. Bush appointee, ruled he had no room to claim discrimination since he was being treated in accordance with his sex as assigned at birth and had not had sex reassignment surgery.
In some ways, Johnson was warranted in thinking he was free to live openly as a transgender man since UPJ offers gender identity and expression protections under its student nondiscrimination statement. Indeed, Johnson had lived openly and without significant difficulty as a man since 2009 — even having taken advantage of men-only exercise courses. Only in 2011 was Johnson first confronted for using a men’s locker room. After issuing Johnson citations, barring him from certain facilities, and eventually arresting him, the university expelled him for his attempt to use the bathroom in which he felt most at peace and which he believed he was permitted to use by university policy. In his appeal for justice, Johnson didn’t ask for much — simply that a university that purports to protect students based on “gender identity and expression” allow him a modicum of relief as a transgender person rather than criminalizing his attempts to live authentically.
Essentially, Judge Gibson acknowledged Johnson’s self-identification as a transgender man, but she didn’t think it really mattered in the context of the Equal Protection Clause or Title IX. Flatly ignoring guidance from the Department of Education encouraging institutions of higher education to recognize transgender and gender non-conforming students’ right to protections under Title IX, Judge Gibson left Johnston, and other transgender students, without protection from sex discrimination. She wrote:
While Plaintiff might identify his gender as male, his birth sex is female … It is this fact … that is fatal to Plaintiff’s sex discrimination claim. Regardless of how gender and gender identity are defined, the law recognizes certain distinctions between male and female on the basis of birth sex. Thus, even though Plaintiff is a transgender male, his sex is female.
In sum, this decision reflects a sobering reality for LGBTQ people, particularly transgender and gender non-conforming individuals: The government — more specifically, a judge — holds the power to determine if the law protects how you define yourself.
This example dramatizes just one way that our courts fail to live up to the promise of the motto “equal justice under law” by protecting the vulnerable among us from exclusion and discrimination. I’ll admit that several years ago the result in this case might have led me to give up on the courts as an avenue for change.
Recent decisions from the Supreme Court and other federal courts have prompted some progressives to view the courts as a once-relevant institution home only to disconnected jurists. When we as progressives write off the courts and treat them as spaces where our communities were never meant to triumph, we concede the power to speak from our lived experience as those affected by the law and to shift the balance of power within the judiciary.
In reality, the legal knowledge of our communities paired with our deeply personal understanding of how the courts’ decisions impact real people gives us a tremendous power to affect the composition of the courts and to create legal precedents that respect rather than ignore our communities’ needs.
Seamus Johnston’s experiences with the justice system are then instructive for progressives building long-term judicial strategies. His loss in the Western District of Pennsylvania is but one battle in a much longer struggle for social justice.
The courts have to matter for LGBTQ Americans and so many others who find themselves on the losing end of cases like Johnston’s. They have to matter because we cannot afford to write off institutions, elected officials, or organizations as permanent friends or enemies. Rather, if we truly believe another world is possible, we have to build it brick by brick, precedent by precedent, judge by judge.
Rafael Cruz, the Religious Right activist and father of Sen. Ted Cruz, told an Oklahoma church last week that LGBT-inclusive nondiscrimination ordinances allow entire high school boys football teams to decide “that they want to shower with the girls.”
Cruz told the Fairview Baptist Church in Edmond, Oklahoma, that the Supreme Court’s striking down of part of the Defense of Marriage Act has wreaked havoc in municipalities, including Houston, which “has a lesbian for a mayor”:
In Houston, Texas, in the heart of the Bible Belt, that city has a lesbian for a mayor. Well, a few months ago that mayor and that city council passed an ordinance that if a man, today, feels like a woman, he has the right to walk into a women’s bathroom. And if a woman is in there and she complains, she can be sued for that man because she is violating his civil rights.
As a matter of fact, according to that ordinance, if the football team in the high school decides that they want to shower with the girls and the girls complain, they can be sued. This is an abomination!
Cruz made a similar claim last month , telling fellow anti-LGBT activists that “God will hold you accountable” for failing to stop such ordinances.
Phil Burress, head Citizens for Community Values, the Ohio affiliate of the Family Research Council, told Religious Right activist Molly Smith this week that a proposal to expand Cleveland’s nondiscrimination ordinance to include protections for transgender people would allow “mentally disturbed” people to “be around women and girls in a women’s restroom.”
“A transgender person is a mental disorder,” Burress insisted, adding “it would take someone who has a mental disorder that would want to walk into a women’s bathroom in the first place.”
“This is directly tied to the same-sex unions, the same-sex marriage debates,” he concluded. “This is exactly what they want, they want to force you to comply.”
Burress also falsely claims that the new regulations would apply to churches.
Fresh off the synod on the family, at which conservative Catholic bishops rallied to assert ideological domination over the final report, the Congregation for the Doctrine of the Faith (formerly known as the Inquisition) has announced that it will be hosting a colloquium this month on the “Complementarity of Man and Woman in Marriage.” Trekking to Vatican City for the event will be some American anti-equality advocates: Rick Warren, the Southern Baptists’ Russell Moore, right-wing Archbishop of Philadelphia Charles Chaput, and Henry B. Eyring, First Counselor in the Presidency of the Church of Jesus Christ of Latter-day Saints.
The November 17-19 event will be co-hosted by the Pontifical Council for the Family, the Pontifical Council for Interreligious Dialogue, and the Pontifical Council for Promoting Christian Unity. The announcement of the colloquium says it will feature representatives from 14 religious traditions and 23 countries. Among them is Nicholas Okoh, the Anglican Archbishop of Nigeria, who has called homosexuality a manifestation of the devil and praised Nigerian President Goodluck Jonathan’s “courage” in signing a harsh anti-gay law last December. Okoh said in January that people who oppose the law will face “disaster.”
The event will also premiere six short films about marriage; a trailer for the series is online now.
UPDATE: Russell Moore has explained why he's going to the Vatican:
Here’s what I hope comes out of the meeting. I hope that this gathering of religious leaders can stand in solidarity on the common grace, creational mandate of marriage and family as necessary for human flourishing and social good. I also hope that we can learn from one another about where these matters stand around the world. And I hope that those of us from the believers’ church tradition can represent well our views of how marriage is more than just a natural good (although it is never less than that), but is a picture of the gospel one-flesh union of Christ and his church.