Friday, March 21, 2014

The new normal: Conservatives try a different approach in fight against equality

Published in Out In Maine

In the last six months, as marriage equality and other LGBTQ rights have continued their inexorable expansion across the United States, it has become clear that instead of shaking the country to its core, or undermining America as we know it (as opponents have long alleged), protecting the rights of everyone in our society has benefited tens of thousands, perhaps even hundreds of thousands, of Americans in countless ways throughout their everyday lives.

What’s especially interesting is how quiet the ridiculous deep-seated opposition has actually become. The radical conservatives who for many years preached that recognizing the LGBTQ rights — same-sex marriage equality, employment non-discrimination, and more — would harm families, or kids, or communities, or the government, or the society, or something, have, it would appear, realized that marriage equality is not ending the world after all.

Writing in The Atlantic in early March, researcher Robert P. Jones reported that his studies showed nearly half of all Southerners now support same-sex marriage. Despite all the legal action and court decisions, he wrote, “these changes cannot be explained away as merely another example of federal judicial activism circumventing the will of the people in southern states. Rather, we are witnessing dramatic cultural transformations, which include changing minds even among culturally and religiously conservative Americans in the South.”

Even conservative pundits seem to be noticing this progress. Fox News commentator Howard Kurtz wrote in early March about a Washington Post/ABC poll with showing 59 percent of Americans support same-sex marriage, and only 34 percent opposing. That’s almost an exact reversal of the numbers from the same poll in 2004, which Kurtz calls “a headspinning shift.”

He observes that “even GOP politicians who are against [same-sex] marriages are muting their opposition,” attributing that decision to the fact that “three-quarters of Americans under 30 back same-sex marriage (as opposed to less than half of senior citizens).”

With same-sex marriage recognized at the federal level and legal in 17 states — and with marriage inequality under siege in most of the 33 states where it is not yet legal — conservatives are in retreat. (See sidebar, “Scorecard.”)

In fact, conservative New York Times columnist Russ Douthat’s March 2 column was entitled “The Terms of Our Surrender.” Spoiler: It’s not really a surrender. Rather, it highlights a change in the scale and scope of the fight to one much larger and broader than the terms of civil marriage.

No longer inveighing against what he and others called the “redefinition” of marriage to include all consenting adults, Douthat asked his readers to redefine the idea of “religious freedom” to mean protecting, effectively, anything they feel like doing at any time, for any reason.

A great many people around the country are now objecting to laws barring their businesses, places of public accommodation, and workplaces from discriminating against same-sex couples, on the grounds that, somehow, discrimination is part of their religious philosophy and therefore outside the realm of government control.

Douthat came to a spirited defense of that prodiscrimination perspective — even terming it a “subculture,” simultaneously admitting its small and dwindling numbers and suggesting it should be preserved. He lamented the prospect that wedding photographers and adoption agencies might “be treated like the proprietor of a segregated lunch counter,” and face penalties for continued discrimination.

Continuing his sad hypothetical, Douthat posits that “eventually, religious schools and colleges would receive the same treatment as racist holdouts like Bob Jones University, losing access to public funds and seeing their tax-exempt status revoked.”

Carving out religious-freedom protections is a common method of ensuring religious institutions are not compelled by the government to change their teachings; Maine’s law, like those in many other states, was strategically written to allow churches and ordained ministers to decide for themselves whether they consecrate or celebrate same-sex marriages.

But Douthat wants much more. For him, individuals should be able to decide for themselves whether they treat other humans with dignity and respect — or whether their religious beliefs allow them to discriminate.
In fact, in March, the US Supreme Court is expected to rule on whether corporations can hold religious beliefs and, if so, whether those beliefs can exempt corporations from a great many state and federal laws.

Douthat wraps up with a weird pronouncement that seems to blame the people he views as victims: “Christians had plenty of opportunities — thousands of years’ worth — to treat gay people with real charity, and far too often chose intolerance. (And still do, in many instances and places.) So being marginalized, being sued, losing tax-exempt status — this will be uncomfortable, but we should keep perspective and remember our sins, and nobody should call it persecution.”

And his final line could be called fatalistic if it weren’t such a call to arms: “all that’s left is the timing of the final victory — and for the defeated to find out what settlement the victors will impose.”

Scorecard: Where discrimination is under attack
What Russ Douthat and other conservatives are seeing, and recognizing the inevitability of, is the march to the courthouse of LGBTQ Americans across the country. Sadly, most of them are not yet heading there to get married — rather, they’re suing to force states to allow and recognize their marriages.

According to NBC News reporter Pete Williams, “cases are now pending in all but eight of the 33 states that forbid gay couples to marry.” Last June’s US Supreme Court decision striking down Section 3 of the Clinton-era Defense Of Marriage Act has opened the floodgates.

Williams’s tally says 17 states permit same-sex marriage, 29 ban it under an amendment to the state constitution, and the remaining four ban it in state statute.

With cases in almost every state, and appeals in process in several circuits, “it seems a near certainty that the issue will be back at the US Supreme Court soon, either by the next term that begins in October or the year after,” Williams wrote.

Here, compiled primarily from pro-marriage groups Marriage Equality USA and Freedom to Marry, is a rundown of where all 50 states stand:

ALABAMA | A case was filed in December 2013 to overturn ban, and to force recognition of marriages performed in other states.

ALASKA | The state Supreme Court is considering a denial of survivor benefits as a result of constitutional and legal bans.

ARIZONA | Two cases, one in state court and another in federal court, are pending against the 2004 constitutional band; in January, the state asked for dismissal of the federal case.

ARKANSAS | In January, a class-action suit was filed seeking to overturn the state’s bans, a 1996 law and a 2004 constitutional amendment. That builds on a 2010 case seeking to preserve health benefits for state workers. They are getting benefits now, under current rulings, but the case just received class-action status covering all Arizona state workers with same-sex partners.


COLORADO | Four cases, all in state court, seek to overturn the 2004 constitutional amendment ban, which also created non-marriage civil unions.



FLORIDA | State and federal suits are pending, trying to overturn the 2008 constitutional amendment ban.

GEORGIA | no challenges


IDAHO | A federal case seeks to reverse the 2006 constitutional amendment ban, which is being defended by the state attorney general; in may, a judge will consider whether to skip the trial and just issue a ruling.


INDIANA | in early march, four couples sued in federal court seeking marriage rights and to overturn the state’s statutory ban.

IOWA | Legal

KANSAS | A December 2013 lawsuit asks permission for a same-sex couple married elsewhere (Kansas has a constitutional ban) to file joint income-tax returns.

KENTUCKY | On February 12, a federal judge ruled the state’s ban unconstitutional; if an appeals court does not issue a delay, same-sex couples will have full legal rights starting March 20. The state attorney general says he will not appeal the case, but the governor says he will. Also, marriages performed elsewhere are recognized.

LOUISIANA | Three cases seek to overturn statutory and constitutional bans; the state is defending those bans.

MAINE | Legal



MICHIGAN | Federal judge will rule in late March on challenge to 2004 voter-approved state ban.


MISSISSIPPI | A case seeks to force the state to recognize an out-of-state same-sex marriage for the purpose of granting a divorce; there is no active challenge yet to the state’s constitutional ban, but preparations are under way.

MISSOURI | There is not yet a case directly challenging the state’s constitutional ban, but two cases do seek to require recognition of out-of-state same-sex marriages.

MONTANA | A case in state court now seeks “all of the benefits of marriage, other than marriage itself,” according to Marriage Equality USA.

NEBRASKA | no challenges

NEVADA | In 2012 a federal judge rejected a challenge to its 2002 constitutional ban; an appeal will be heard by the 9th circuit soon, but the state’s attorney general and governor are not supporting the ban.




NEW YORK | Legal

NORTH CAROLINA | Republican lawmakers are defending the statutory and constitutional bans; a county register of deeds has also said he will ask the state attorney general to decide whether marriage licenses can be issued to same-sex couples.

NORTH DAKOTA | no challenges

OHIO | In December 2013, a federal judge overturned the state’s 2004 constitutional ban; the attorney general has appealed the ruling to the 6th circuit.

OKLAHOMA | In January, a federal judge overturned the state’s constitutional ban; the state’s appeal will be heard in April in the 10th circuit.

OREGON | A federal suit challenges the state’s constitutional ban; arguments will be heard in april, but the state attorney general has said she will not defend it.

PENNSYLVANIA | Several state and federal cases oppose the statutory ban; the attorney general has said she will not defend it.


SOUTH CAROLINA | A federal suit was filed in August 2013 seeking to overturn the state’s constitutional and statutory bans.

SOUTH DAKOTA | no challenges

TENNESSEE | A federal suit asks a judge to overturn the statutory and constitutional bans.

TEXAS | Numerous state and federal cases challenge the constitutional ban and other statutory restrictions on equality, including an appeal before the 5th circuit of a February ruling striking down the bans.

UTAH | In December 2013, a federal judge struck down the state’s constitutional amendment; its appeal will be heard in April in the 10th circuit. another federal case seeks to protect about 1300 same-sex couples who were legally married in Utah after the December decision and before the US Supreme Court’s January stay of the ruling.


VIRGINIA | In February, a federal judge overturned the 2006 constitutional ban; the decision is stayed pending an appeal decision by the 4th circuit. the state attorney general has not defended the ban, and instead intends to join the plaintiffs seeking to have it struck down.


WEST VIRGINIA | A federal suit, which is opposed by the state attorney general, seeks to overturn the statutory ban.

WISCONSIN | A case before the state supreme court challenges the 2006 constitutional ban and a 2009 domestic-partnership law; a decision is expected this summer. a federal suit also challenges those bans, as well as a Wisconsin-only law banning same-sex couples from marrying elsewhere under penalty of fine and imprisonment.

WYOMING | In March a state lawsuit was filed seeking to strike down the statutory ban.


Equality Overseas
Same-sex marriage rights are an equally hot topic in other countries. The most attention has been given to Russian president Vladimir Putin, who continues to enforce his country’s sweepingly vague ban on “gay propaganda,” while his people overwhelmingly object to same-sex marriages.

In Africa, serious legal barriers are still being erected. (Only South Africa has legalized same-sex marriage.)

Uganda, the most aggressively anti-gay country on that continent, recently enacted a law that could sentence homosexuals to life imprisonment. Faced with Western objection to that law, president Yoweri Museveni complained about “social imperialism,” saying foreigners were trying to “impose social values” on his people.

The Uganda-based Civil Society Coalition on Human Rights and Constitutional Law recently released 20 guidelines for national and international allies on “how to offer support now that the anti-homosexuality law has been assented to.” among their suggestions:

-“call on multinational companies that have businesses in Uganda [such as Heneiken, British Airways, and Barclays Bank] to go public about their concerns [about] the act and their future economic engagements in Uganda.”

-“expand investment in funding for service delivery and advocacy in defiance of the law, targeting LGBT populations, to attempt to mitigate the harmful impact this law will have on access to services, and on human rights.”

-“call for your government to issue travel advisories on Uganda...alerting their own LGBT citizens to the risk of traveling in Uganda.”

-“draw international public attention to issues such as corruption, human, as well as the suppression of media freedom and civil society space... so that attention shifts to where it properly belongs: in the best interests of the country’s population as a whole.”

Asia is another place with little-to-no recognition: the best status for same-sex marriage is in Israel, where marriages themselves are not allowed, but where the government recognizes them if legally performed elsewhere.

Nepal, Taiwan, and Vietnam are among the countries that do have active discussions under way. and the Dalai Lama recently became the first Buddhist leader to endorse same-sex marriage.

In the Pacific, Australia bans same-sex marriage; New Zealand allows it. Most of the island nations don’t recognize same-sex marriages; several also ban all homosexual activity.

In the Americas, Canada allows same-sex marriage; Mexico and several other Central American countries only recognize same-sex marriages performed elsewhere. South America is fairly split, though powerhouses Brazil and Argentina (as well as smaller nation Uruguay) have same-sex marriage. Colombia and Ecuador have some legal rights for same-sex couples.

Most Western European countries (though not Italy) recognize same-sex marriages or offer some sort of government-registered partnership; Eastern European countries are uniform in not recognizing same-sex marriages, and several nations in that area have specific opposite-gender requirements for marriage.