A Prime Opportunity For Resolution Is At Hand

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Image by jamestruepenny A Prime Opportunity For Resolution Is At Hand

One of the most quotable movies ever is 1988’s Bull Durham.* It tells a lot of stories on a lot of levels, but superficially, it’s about two baseball players — a promising and gifted young pitcher, and the smart but aging catcher assigned to mentor him.

Almost exactly an hour into the movie, all the pieces seem to be falling into place for the promising young pitcher, “Nuke” LaLoosh. He has begun to master the athletic skills needed to become a major league baseball pitcher, landed himself the sexually voracious girlfriend as part of the love triangle that forms another facet to the story, and reached not only a modus vivendi but a friendship and mutual respect with the other protagonist, the catcher Crash Davis. Nuke pitches a perfect inning, retiring three batters in a row, and heads to the dugout accepting high-fives from his teammates — except for Crash, who is unhappily changing out of his catcher’s gear to prepare for an at bat. They speak:

NUKE: I was great, eh?
CRASH: Your fastball was up. Your curveball was hanging — in the Show, they would’ve ripped you.
NUKE: Can’t you let me enjoy the moment?
CRASH: The moment’s over.

Of course, I’m still over the moon about the Obergefell ruling. But the moment, if not over, is going to pass quickly. After all, for people in quite a few states, the ruling that people of the same sex can marry comes after courts or legislatures in those states had already independently decided that question in favor of marriage equality. Obergefell makes us a more equal nation than we were before. But we aren’t all the way there yet.

For example. A guy who owns a hardware store outside of Washburn, a small community in Grainger County, Tennessee, posted a sign reading “No Gays Allowed” on the front door of his business establishment.

For what it’s worth, the hardware store guy also serves as a Baptist minister. This calls to mind something a Christian friend told me once back when I lived in Knoxville and complained about a self-styled minister: “You know, a lot of people around here call themselves ‘ministers.’ Might not mean what you think it does.” (I let the issue of what else a “minister” might be rest without demanding greater specificity, taking it as a reminder to focus my irritation on a specific person rather than on a faith or a group of people professing to adhere to it).

So far as I know, this sign violates no law. Title VII does not prohibit exclusions of GLBTQ people from public establishments. Neither does the Tennessee Human Rights Law. And that’s the next fight: ought it to? There are efforts to shoehorn sexual orientation discrimination as a form of sex discrimination (by way of calling “failure to adhere to sex stereotypes”) which have met with mixed success at the trial court level and ambiguity before appellate courts. All of this has been in the employment context, not in the public accommodations context.

From where I sit, it’s fantastically obvious that anti-discrimination law at both the Federal and state levels ought to include rather than exclude sexual orientation as a protected class. We’ve protected sexual orientation by statute in California the same way we’ve protected race and sex and religion since 1992, with no apparent adverse consequences to either our economy or our citizens’ ability to enjoy religious freedom. Congress should pass ENDA. Further, Congress should amend Title VII to include sexual orientation as a protected status, and not rely on the courts to use questionable language and logic games to shoehorn “sexual orientation” into “sex” or “marital status.” If Congress does this, it can write in protections for religious freedom, and not have to rely on courts to do that, too.

This has happened already in Utah, whose body politic is dominated by no less conservative a religious institution as the Church of Jesus Christ of the Latter-Day Saints, found a way to reconcile itself with the inevitability of same-sex marriage. But bringing Republicans around to the notion that such a legislative scheme represents the best of all remaining possible worlds for social conservatives may take some work: it will require people of good faith who disliked the Obergefell ruling and see a need arising from it to protect religious liberties to accept that the perfect cannot be allowed to be the enemy of the good — and it will require people of good faith who, like me, rejoiced at Obergefell to concede that sincerely religious people are not going to give up their religious beliefs that same-sex marriages are strictly legal matters which their consciences forbid them from blessing.

We can’t reach into peoples’ churches, or their hearts and minds, and compel them to think as we wish. Personally, I’m good with that. I’m confident that over time, more and more people come to know gay couples, and decide that they’re all right after all.

That may not ever happen in Grainger County, Tennessee. There’s less than 25,000 people in the whole county and lots of people there who don’t see much cause to ever stray very far from home. The “big city” for folks in Grainger County is Knoxville, a metropolis of about 180,000 people (which does have a gay community but is nevertheless not exactly the southern DuPont Circle — for that, one needs to go considerably further south). And those of us who want to see greater LGBTQ equality need to accept that folks in Grainger County, Tennessee and similar places are going to accept such a compromise only reluctantly and unhappily.

Maybe it’s because I’m a lawyer, a litigator that I’m used to accepting compromises. I’m used to choosing the things I want that are within my grasp rather than gambling everything. I’m used to realizing that the other side of a dispute is going to inevitably walk away with something, even if I have a strong hand to play, and focusing my efforts on prioritizing what i want to get out of a deal. It often takes winning a significant victory in court before the other side will signal that it recognizes the strength of your position — and when they do, it behooves you to seize and use that moment to achieve resolution.

Letting churches decide who they do or do not want to marry, who they do or do not want to ordain as clerics, who they will or will not accept as parishioners, is more than acceptable. It’s the right thing to do — we ought to let people worship and believe as they wish so long as they don’t overtly harm other people along the way. Doing otherwise isn’t really respecting freedom. Now, it’s not too much to ask in return that people not try to label as “churches” things that aren’t really churches. And it may not be easy to very precisely define what a “church” is. But even if the distinction between “church” and “not-church” can get fuzzy in other contexts, I’m pretty sure that a broad consensus can be reached that a hardware store is not a church, no matter how devoutly Christian its owner might be.

So it’s time for people on all sides of the now-resolved big issue to sober up, and work out the nuts and bolts of working this new articulation of law into day to day life. Some of us were thrilled in the moment, others were outraged. But the moment’s over. Stop eating the sour grapes, SSM opponents, and put your money where your leaders’ mouths are going — the best way to protect your religious freedom to morally object to homosexuality is to come to the political bargaining table. SSM advocates, let’s be graceful winners, and bargain back.

 

* As far as I’m concerned, its only real competition for that honor is The Princess Bride.

Featured image:  The Olde Grainger County Jail by dmott9 on 2012-01-09 16:20:01, sourced from flickr.

Burt LikkoBurt Likko is the pseudonym of an attorney in Southern California and the managing editor of Ordinary Times. His interests include Constitutional law with a special interest in law relating to the concept of separation of church and state, cooking, good wine, and bad science fiction movies. Follow his sporadic Tweets at @burtlikko, and his Flipboard at Burt Likko.

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59 thoughts on “A Prime Opportunity For Resolution Is At Hand

  1. +1000 for the quotability of Bull Durham. And yeah, I’m not interested in interfering with Sunday mornings or evenings or whatever at somebody’s church.

    “What do you mean, William Blake?”
    “I mean William Blake!”

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  2. SSM advocates, let’s be graceful winners, and bargain back.

    I’m not sure I understand what this means. By and large I haven’t seen SSM advocates arguing for reaching into houses of worship and determining that yes, women can be Roman Catholic priests or that Orthodox synagogues must now perform interfaith marriages. And in terms of tradeoffs, the thing being traded is equal dignity in civic life along with other residents of the US. Can someone be discriminated against in a public accommodation? Are “no gays allowed” signs permissible? Can an individual be fired for their gender identity?

    At root, I think in many of these culture war conflicts there is really no bargain to be had. If one believes gay marriage literally devalues every heterosexual marriage, there’s not much bargaining to be done there. If civil unions can never equal marriage because the distinction itself denigrates a particular community, there’s precious little space for bargaining. The culture wars will have winners and losers, and however gracious one tries to be, to the victors go the spoils.

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    • “If one believes gay marriage literally devalues every heterosexual marriage, there’s not much bargaining to be done there.”

      The question, I would argue, is just how much of that actually exists out there — and personally I suspect that not a lot of it does.

      “SSM Devalues Heterosexual Marriage” is just one in a long list of arguments that has been put up to give people something that wasn’t “No Gays Allowed” to embrace so they could look and feel reasonable and fair while promoting a two-tiered society. Most of those arguments have gone the way of the dodo over the past 25 years or so, because even though they were presented as Value Statements, they were in fact just strategies that people quickly abandoned when the argument was effectively answered.

      I think Burt is right here, and this is why: I believe that there are more people in the Republican party who either support SSM or who are simply stuck being against it because — and only because — it’s a Culture War litmus test than there are people in the Republican party who deep down are and always will be opposed to SSM on purely philosophical reasons.

      If the goal is to promote equal rights and privileges both under the law and as a matter of sisal norm, and not to beat/stick it to/get our pound of flesh out of conservatives/Republicans/older people, then I think it’s important to have them be in on the conversation of how to move forward.

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      • Here’s the thing, if by bargain, or conversation on how to move forward, what’s meant is negotiating the terms of the opposite side’s surrender, then I think SSM marriage advocates, myself included, would be good with that. But it wasn’t a resounding victory, a Loving v. Virginia 9-0 ruling. This was 5-4. There’s still contestation and room for hope for those who oppose SSM. I don’t know if those hopes are well founded, but suppose a Republican wins the presidency, and suppose Justice Ginsburg or Justice Breyer is replaced by someone in the Scalia mold, who knows, the conservative view could very well prevail.

        After all, every dissent hopes for reversal and to return triumphant as a majority opinion one day. Witness the current concern about the fate of affirmative action, as the deciding justice shifted from O’Conner to Kennedy, the Court’s perspective has shifted rightward. SSM opponents will want that rightward shift with their issue – and if not an outright removal of the dignitarian / equal protection basis Kennedy has laid out, then just a hollowing out of potential protections. And I can’t say I blame them, because as someone on the left, I hope for the death penalty to be found cruel and unusual one day, and any number of 5-4 rulings that didn’t cut my way under Roberts (or Rehnquist for that matter) to one day be revisited by a court with more Thurgood Marshalls and Ginsburgs and fewer Scalias and Thomases.

        Shorter me: there’s still a lot of bitterly contested ground here, and I don’t see any side making serious concessions anytime soon. We’re still fighting about Lochner (in some circles anyway) – to me that says these disputes tend to linger.

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        • SSM isn’t something that is easily reversed. Let’s say a President Walker (my skin crawls) is elected and, as the country collapses into a Regonomics induced recession, replaces A Ginsburg or a Breyer with a Scalia. If SSM came to the court room again for some reason I think you’d see Roberts flip sides pretty promptly at the prospect of the court unmarrying all those married gay people. Especially if social acceptance continues tromping along at the pace it’s been developing.

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        • You may well be right. After all, a lot of what I am going on here is my gut and the universe of conservatives and Republicans I know — which, although fairly large, is clearly anecdotal.

          Still, I think this one of those wars that is won, and as with most wars there are still going to be skirmishes going on for a bit. And I’m not even that worried about SCOTUS, because I think you’d need at least two justices replaced. (I think Roberts wanted a more organic process to get to the finish line; now that we’re there I do not believe he would vote to reverse.)

          Also, I think that the trend for social acceptance is going to continue on the path it’s already on. The more time people see that the world hasn’t collapsed because gay people aren’t in closets, the more it will be accepted — more and more each year, until those few opponents who are left feel as uncomfortable saying it in public/politcs as most people who still actually feel that way about Loving do today.

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        • We’re still fighting Roe v Wade

          Someone on the news a few days ago said something equivalent to “the SC has “decided” this, interrupting the normal democratic process. Now were’re going to be litigating this and various incarnations for the next 30 years.”

          I think he’s right. It’s going to be a mess.

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          • Damon: We’re still fighting Roe v Wade

            True. But reversing RvW would look a lot different than reversing SSM. The former would be like what happened with Prohibition (in reverse of course) while the latter would involve un-marrying thousands, perhaps millions, of people. Alternatively, they could say no more going forward, but wouldn’t that be its own 14th Amendment, equal protection issue?

            IANAL, but I don’t see that happening short of packing the court with Scalia and Thomas clones.

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      • I recommending this post by Amanda Marcotte at TPM, on what ruining marriage really means, which is a response to Douthat’s column in the Sunday NYT, because I think Marcotte’s onto something very important here — It’s not because straight people won’t want to get married if gays are doing it, too. It’s because it redefines marriage as an institution of love instead of oppression. She builds the case for this carefully, and while it might be a bit over-the-top feminist for some tastes, I think she’s on the money; it’s shifting marriage from duty the duty and life-long commitment (and sometimes, misogyny) to a choice rooted in love and joy. It’s removing the suffering, an essential part of traditional Christianity, you suffer now, and get your reward for suffering in heaven, from marriage.

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        • Turning marriage from being a lifetime covenant into something founded on feelings will have upsides and downsides.

          The people who care more about the one than the other will say that people who disagree are being immoral, of course.

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          • Jaybird: Turning marriage from being a lifetime covenant into something founded on feelings will have upsides and downsides.

            I truly don’t understand this idea that extending the franchise of marriage to include same-sex couples changes the essential nature of the institution. At least beyond the bit about making babies via fucking anyway.

            How does it change it from being about commitment to being about feelings? Are same-sex marriages not a lifelong commitment? Do straight couples not marry for love?

            I guess I need someone to show their work on that answer.

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          • Also having good and bad aspects was turning marriage into something about love since it surely wasn’t always about finding your one true love . Or turning marriage into something where people choose their own partners instead of their parents doing it for them was a thing. The world seems to have kept turning; change happened.

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      • “SSM Devalues Heterosexual Marriage” is just one in a long list of arguments that has been put up to give people something that wasn’t “No Gays Allowed” to embrace so they could look and feel reasonable and fair while promoting a two-tiered society. Most of those arguments have gone the way of the dodo over the past 25 years or so, because even though they were presented as Value Statements, they were in fact just strategies that people quickly abandoned when the argument was effectively answered.

        I think people often forget that most of what ‘society believes’ is, in fact, completely invented by a few people and repeated until enough people said it. This is as true, or *truer*, of religious beliefs as anything else.

        Yes, those ideas were just *invented*…but all ideas people have about society are just invented. There are people who, despite “SSM Devalues Heterosexual Marriage” clearly being stupid, really do believe it.

        What’s more, the ‘resistance’ going on now is deliberately being caused by specific individuals who want power, and are willing to manipulate ‘religion’ in order to hold onto it. This is not any sort of natural phenomenon.

        Likewise, the *acceptance* is not any sort of natural phenomenon either. It’s winning because the other side is, to put it bluntly, stupid, and because the war was actually lost when women were allowed to step outside their ‘roles’, and it’s far to late to go backwards to that.

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    • I’d join with Tod and Burt in disagreeing here Creon. There are many areas that gay rights advocates, if not SSM advocates in general, wish to take the war to the Fundamentalists where it might be ill advised to go. I have read sentiments in favor of shooing religion out of the public square, of revoking their tax exempt status, of forcing them to discontinue charitable works unless they confirm to public norms* that I think go way over the line from defending gay rights into the territory of “making them regret persecuting us for so long”.

      Ironically many fundamentalists would prefer we charge in torches blazing to our compromising with or (God forfend) ignoring them. Christianity has martyrdom bred into its bones and modern Christians do -not- like the idea that they are Pharo (which for the past several centuries they have been) so many would greet gay retribution as vindication and validation. Nothing would be crueler than letting them have their sandbox and leaving them to it.

      *Even when said charitable works are entirely funded by the religious with no government sponsorship or partnership**.
      **I’m generally inclined to think if you take the publics dime then you are expected to function as an arm of the public so no taking gays funding (tax money) and then excluding them.

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      • I’m curious as to your sources for driving religious organizations out of purely privately sponsored charitable work. (This is more than just a ‘cite please’ because I actually want to see if the sponsors of this idea have any kind of legal theory or if they’re just being vindictive.)

        Thanks.

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    • At root, I think in many of these culture war conflicts there is really no bargain to be had.

      Yeah, I agree with you about this. At least right now. In fact, I’d say that now is exactly not the time to bargain. Like you, I don’t know what that even means.

      One thing I agree with Burt about is to refrain from going into Christian churches and Christian heads and trying to change how those folks – as Christians! – conduct their business. But I don’t think there’s much of an effort do that, actually, and if there is, doing so doesn’t strike me as a particularly – or uniquely, to the extent such a view exists – gay issue. Homophobia and anti-gay animus go a lot deeper than just some sloganeering based on the bible, and evangelical atheism is all about attacking the Churches and Minds of Christians. That said, I personally don’t have any problem with rabid gay-rights supporters maintaining the culture wars. It’s a free country, yes? And God gave us freedom, amirite? And part of the reason I don’t have a problem with it is because even as we speak conservatives and Christians are gearing up for the Big Pushback based on the RFRA. What sorta protections do they actually want recognized in the legal sphere which they can’t act on privately? Further, why do they want specific protections recognized in the public sphere anyway? What’s accomplished by doing so?

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      • What sorta protections do they actually want recognized in the legal sphere which they can’t act on privately? Further, why do they want specific protections recognized in the public sphere anyway? What’s accomplished by doing so?

        This helped clarify something that’s been fermenting in the gray-matter vat for a few days now: forgiveness.

        A very big piece of Christian practice is asking to be forgiven for your sins; it’s the very core of the dramatic death-bed confession, its what cleanses the Christian of sin so that he or she might enter heaven, the Kingdom of God; and it goes hand in hand with admitting Jesus to your heart and caring for the poor.

        So the Christian who finds herself at risk of moral corruption because she had to issue a marriage license to two women or bake a cake for the wedding reception of two men has another path than outright discrimination against those women, those men: issue the license (because that’s her job) and Ask God to forgive her. Get down on your knees and ask for those sins to be washed away.* Pray that those people going into a sinful marriage find their way to God; pray that they do God’s work by caring for some unwanted children or ministering to the poor; do your job with a prayer that they find god in your heart.

        *This is definitely a Baptist thing; I think less true of Catholics who do penance and are exhorted to not repeat their mistakes; but I’m fuzzy since it’s been a very long time since I felt need for God to forgive me, hedgewitch that I am.

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        • Zic, I hope you’re being facetious here. This brings to my mind images of mafia men in confession, asking for forgiveness for actions they knew were wrong, and know they are going to repeat. How shallow a faith!

          For one thing, many denominations (and Catholicism is one) don’t believe that forgiveness is given without true repentance. For instance, Catholicism disapproves of sex outside of marriage, considering it sinful. Many priests will not absolve you of the sin if you are continuing it, like living together (or in an second marriage if the first was not annulled by the Church).

          Repentance requires a sincere effort to avoid the sin.The idea that you would intentionally commit a sin, planning in advance to ask for forgiveness, shows no repentance for what you’ve done.

          Myself, I don’t believe gay marriage is a sin. Neither is fulfilling the law and giving any two people a marriage license, or marrying them. But to suggest that people who do find it sinful can simply ask for forgiveness after the fact for something they *sincerely* believe is sinful is more than a little dismissive of those people’s faith.

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          • I am not being facetious.

            You repent your behavior; if enabling someone else to participate in legal behavior is sinful (aka the HL contraception argument, too), we’re holding individuals responsible for others’ sin against the other person’s will. That is not belief, that’s coercion. Which I think a sin.

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            • The issue isn’t what we hold against other people, it’s what they sincerely believe God will hold against them. You may believe they are silly, or wrong, or ignorant, but what *you* believe is for yourself, just as what they believe has no bearing on you.

              I am not suggesting that their sincere belief means they should be allowed to discriminate. Most people have principles that eliminate certain jobs from consideration. If you find performing your job requires you to act immorally, you should resign from your job.

              I am suggesting that if you tell someone that they can break God’s law with the intention asking for forgiveness after the fact, you shouldn’t be surprised if they are insulted or find your understanding of their faith shallow. It’s a hollow option.

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  3. OK this is where the “attitude” part of me comes in.

    Given that:
    1. There is a surprisingly large number of people who are still, 150 years on, relitigating the Civil War;
    2. There is a large number of people who want very badly to overturn the Progressive legislation of 1910-1920s such as universal schooling child labor etc.;
    3. There is a large number of people who want very badly to overturn the New Deal;
    4. There is a large number of people who want to overturn the 1964 Civil Rights Act, the Fair Housing Act, the Clean Water Act, and anything to do with the Great Society;
    5. Most importantly, these positions have not softened over time, and their numbers have not decreased, but instead have hardened and grown ever larger. Scott Walker could not have been elected in 1985, or 1975.
    6. Finally, these people stand on the very real brink of controlling all 3 branches of government, plus a majority of statehouses.

    How could we possibly be “gracious winners”?

    What in the world makes anyone think the other side has surrendered? So far as I can see, they view this as half time.

    My advice is that we should go full Conan on them. Crush them, drive them before us and hear the lamentation of their women.

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  4. I am more on the Creon Critic and LWA side of things.

    I have not heard SSM advocate arguing that all houses of worship should be forced to perform SSMs.

    What I do see are counties in some areas refusing to give out any marriage licenses at all in order to get around the ruling.

    To their credit, some red states have said that the law is the law and they are giving out the licenses.

    What I have seen is every single GOP candidate willing to pander to the anti-SSM crowd to a varying degree. An example of a more serious pander:

    http://www.slate.com/blogs/outward/2015/07/01/bobby_jindal_s_religious_liberty_executive_order_is_illegal_and_anti_gay.html

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  5. I would also argue that many LGBT people faced many years of harassment, verbal abuse, and much worse at the hands of all the people screaming Chicken Little right now. Rod Dreher’s polemic can basically read as “What…..do you mean we can’t be homophobic any more?” You wrote about a guy who was passionate enough in his homophobia to try and get a referendum for summary execution on California’s next election.

    It is rather hard to be a gracious winner against those who kicked you down and it did hard and brutally. I am largely convinced that the wails about Christian persecution are because they have spent so long being the oppressor, they think revenge must be in order.

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  6. I think it is also worth noting that social movement does not necessarily always move in a progressive direction.

    I have read personal histories of Afghanistan and Iran, from people who lived there in the 1950’s and 60’s, who remember that these places were much more cosmopolitan and accepting of secularism and gender equality than they are now. (Not that they were liberal democracies- but their repression did not aim at secularists and women).

    What is going on now in the Muslim world in not a continuation of tradition, but a moral revanchism, a return to a past which in many cases never existed. The young radical muslims in France never experienced the sort of fundamentalist state which they advocate- it is a utopian ideal for them, imaged but never experienced.

    Very much like the Lost Cause version of the antebellum, the Christian Dominionist view of “Christian America”, or the market fundamentalist vision of the Gilded Age, I think it is entirely possible that the battle for the soul of America can swing in a different direction than we all think.

    I remember the Dukes of Hazzard in the 70’s, and music by The Band like “The Night They Drove Old Dixie Down” , and the rebel imagery of southern rock bands, and as a So Cal teenager, it seemed harmless, since I imagined the war was long over, and we were all friends now, and this was just a harmless cultural tic like Irish do on St. Paddy’s Day.
    Because hey, in the 1970’s all the culture wars were over- people lived together in sin, had abortions freely, black people and women had equal rights, and the Birch Society was on its last legs, and would disappear within a decade.

    Only later I realized it wasn’t harmless, that many of them really meant it, and I have watched as things like the Voting Rights Act have become gutted. Why? Because we were asleep at the switch, and didn’t notice those who worked tirelessly to win school boards, state legislatures, and eventually the entire Republican Party. Today the Birch Society occupies a commanding presence at CPAC, and Buckley is long forgotten.

    The Handmaids Tale is always out there, as a plausible alternate reality. It just takes hard work and effort and determination to put into practice.

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    • Yes and no.

      The truth of both countries in the 1950s and 60s vs. now is much, more complicated.

      Both countries were ruled by an anti-democratic elite who were modern, secular, and cosmopolitan but also very willing to use torture and murder against dissenters. The Shah was empowered by the British and the CIA in the 1950s after Iranians elected a Socialist Prime Minister.

      The majority of the citizens were poor and also much more conservative many times.

      So calling them more modern is true enough but not the whole story. You had a jet-setting elite and the majority did not share in the wealth.

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  7. Supposing “Gays won’t be served” was legal… How would they go about enforcing the policy? “He looks gay. Don’t let him in.” “But I’m not.” “Doesn’t matter. I think you are.”

    What sort of action could a straight person take against the store if they were “wrongly” discriminates against?

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      • For reals??? So, if some employer in California decides only a gay dude would wear a pink shirt… or attend the ballet… or eat vegan… he could fire an employee who engaged in these behaviors, even if not on company time???

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        • No, just the opposite.

          Let’s say Samuel the Straight Guy comes to work in San Diego wearing a pink shirt. Boris the Bigoted Boss thinks that only gay men wear pink shirts.

          Boris says, “Sammy, I didn’t know you were gay. Pack up your stuff, you’re fired.”

          Boris has committed an unlawful employment practice, specifically sexual orientation discrimination. It does not matter that Samuel is actually straight. Boris perceived Samuel as gay, making the tort intentional.

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            • Not that I know (but it hasn’t stopped me from opining before) I suppose that in a pure “at will” state, one can be fired for “mistaken cause” as much as for “any cause or no cause.” Maybe there are exceptions, however. I’d also wonder if the situation you describe would edge slightly closer to gender discrimination, inasmuch as “perceived to be gay” has a lot explicitly to do with gender stereotypes.

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  8. Heh. I think this is the first time I’ve ever read a Marcotte article and completely agreed with it, no exceptions, no caveats, 100% agreed.

    It makes the point that I’ve been making for a while: Homophobia (and transphobia) isn’t anything to do with sex.

    It’s to do with gender roles. The idea that the ultimate goal in life is to be a man and own an attractive woman.

    It’s the reason that men are more acceptable of women ‘acting like men’ and with lesbians than vis versa, why a trans man is just sorta weird and a trans woman is horrible.

    Howso? The logic is simple:

    Of course some of the women have figured out that their current place is at the bottom and have tried to move up. Tried to get their own women, or try to pass as men. It’s entirely logical! Of course they’re trying to ‘pass’, who wouldn’t want to be a man?! As long as only a few women do that, leaving plenty of women for everyone else, whatever, it’s okay. (Hey look, the dog thinks she’s people! And the woman thinks she’s penis-people!)

    Well, it’s okay until some man has decided on her specifically, then she needs to stop playing pretend and let him win her, fair and square, like it’s supposed to work. Women don’t *actually* get to decide such things.

    And letting them get *married* to another woman is a bit too far…men know the rules, they aren’t supposed to hit on women who are owned by another man, but how the hell does that work for lesbian spouses? They own *each other*? What? Marriage is supposed to be end of the system, where the best guy finally wins the girls, and if the guy is a girl, that means they’d never be owned by a man, and if they have that option, why would they not *all* do that? Lesbianism is a sorta joke women can do until and if men want them, it’s not, like, a real thing, except maybe for ugly women who men won’t really ever want.

    Meanwhile, of course, men who go the ‘wrong way’ are *traitors*. At the very least, if a man feels like that might be interesting, he should do it in *secret*, so as to not harm the entire concept of male superiority. It’s almost the same thing as B&D…woman=submissive, so, yes, you might have some sort of fetish about being submissive, but don’t tell everyone.

    The world view is pretty easy to understand, and it pretty much explains *every* sexist position social conservatives have taken over the last century, even the ones that otherwise appear oddly inconsistent.

    EDIT: Obviously, this belonged in response to above.

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    • I think I dislike the extreme of chattel property here, seems like it unfairly casts men as abusive and fails to give credit to the suffering they experience in bad marriages without exit rights, often entered into prematurely so that sex isn’t sinful. So I would put more emphasis on her point being redefining marriage from a duty (with a good dose of Christian suffering . Apparently, in a world where SSM is acceptable, where marriage is a voluntary partnership not based on duty and suffering. One implications of this view might be an assumption that couples who don’t embrace traditional marriage models lack a sense of duty and won’t willingly suffer for the greater good of their family, and that’s just ludicrous.

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      • One implications of this view might be an assumption that couples who don’t embrace traditional marriage models lack a sense of duty and won’t willingly suffer for the greater good of their family, and that’s just ludicrous.

        Well, if you are not willing to marry the boy/girl your parents pick out for you for the sake of the family….
        Well, if you are not willing to avoid premarital sex for the greater good of the family…
        Well, if you are not willing to stay in an unhappy marriage for the sake of the family…
        Well, if you are not willing to marry someone of your own ethno-religious group for the sake of the family…
        Well, if you are not willing to stay in the closet for the sake of your family…

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  9. There can’t be a negotiated deal unless there is a basis for a deal. Over the last few months, I’ve heard a lot of anti-SSMers, now that they’ve had SSM shoved down their throats, argue that the pro-SSM side should have been gracious and accepted a “deal” for civil unions. I actually thought that myself, 20 years ago, but nobody showed up from the anti-SSM side to put that on the table. Indeed, most of the advocates on that side of the non-existent table were working to scuttle civil unions, too. Karma’s a bitch.

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    • No, it’s not any kind of political resolution. It’s the disposition of a single case. It’s not even the final disposition, because it’s subject to appeal.

      As noted above, the nature of the so-called gag order is greatly misrepresented. The actual order prohibits the bakers from putting up a no gays allowed sign on the front door of their bakery, similar to one used by the hardware store owner described in the original post.

      $135,000 does seem like an excessive amount of damages for cupcakes. Given the reporters failure to read the order and comprehend it, I wonder if this is not also a misrepresentation, perhaps inadvertent perhaps otherwise. Based on my own experience with anti-discrimination law, this amount of money appears to be the total judgment, not just damages. It is also not a “fine.” It would include damages to the complainants, The costs of suit incurred by both the administrative agency and the complainants, and attorneys fees incurred by both the administrative agency and the complaints. These are all remedies that have been part of antidiscrimination law since the 1960s.

      Furthermore, it would be in the nature of such a case that the defendants would have been offered an opportunity to admit fault and make restitution, and pay only a nominal amount of money along the way. The certainty of legal liability would have been made plane to them as part of making that offer. The defendants chose to do this the hard way, so they got a hard result.

      Under the political compromise I suggest in the original post, there would still be liability here, because the bakery is a public accommodation, not a church. The church that the bakers go to would be able to exclude the lesbian couple from religious ceremonies, including shutting the churches doors to that couple for purposes of holding a wedding ceremony.

      But a bakery is not a church. Baking cupcakes is not a religious exercise, it is a commercial exercise. Refusing to bake the cupcakes was not a religious exercise, it was a political exercise. I’m not particularly sympathetic to the bakers.

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      • People need to grow up and stop whining. If bakery x won’t make cupcakes then leave and find somone that will. Not everything needs to end up in court. This kind of silliness isnt going to bring people together.

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        • I doubt you share the beliefs of our dear friend NotMe here, but see what I mean about the tendency to tell folks to “grow up and stop whining”? It seems acceptable to tell gay folks (and women and people of color) as much but absolutely unacceptable to say as much to conservative Christians.

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        • [Gay] people need to grow up and stop whining. If [Christian] bakery x won’t make cupcakes then leave and find somone that will. Not everything needs to end up in court. This kind of silliness isnt going to bring people together.
          [Black] people need to grow up and stop whining. If [racist] bakery x won’t make cupcakes then leave and find somone that will. Not everything needs to end up in court. This kind of silliness isnt going to bring people together.
          [Christian] people need to grow up and stop whining. If [atheist] bakery x won’t make cupcakes then leave and find somone that will. Not everything needs to end up in court. This kind of silliness isnt going to bring people together.
          How far do you want to go with this?

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