Conservatives in retreat over gay rights
There are some parts of the Republican coalition who feel like they have not received what they expected from the presidency of Donald Trump. Those who are opposed to gay rights, however, have little to complain about. Here is the latest:
“In a major upcoming Supreme Court case that weighs equal rights with religious liberty, the Trump Administration sided on Thursday with a Colorado baker who refused to bake a wedding cake for a same-sex couple.
“The Department of Justice on Thursday filed a brief on behalf of baker Jack Phillips, who was found to have violated the Colorado Anti-Discrimination Act by refusing to create a cake to celebrate the marriage of Charlie Craig and David Mullins in 2012. Phillips said he doesn’t create wedding cakes for same-sex couples because it would violate his religious beliefs.
“The Government agreed with Phillips that his cakes are a form of expression, and he cannot be compelled to use his talents for something in which he does not believe.”
I will not go too deeply into the legal arguments around this case, except to say that it gets to a fundamental question: is it OK to discriminate against gay people? Colorado has an anti-discrimination law that explicitly protects citizens from discrimination in public accommodations on the basis of “disability, race, creed, colour, sex, sexual orientation, marital status, national origin, or ancestry”, and the baker clearly violated that law. He claims, however, that he should be able to discriminate because his antipathy towards gay couples is based on religious beliefs. In the case of other kinds of discrimination, we do not accept that as an excuse.
If you own a restaurant, you cannot put up a “Whites only” sign and say that your reading of the Bible mandates that you refuse to serve black people. Even if your beliefs are sincerely held, we have decided that our societal interest in stopping discrimination outweighs your religious freedom. Although the administration takes the position that it is the baker’s artistic expression in making a cake that gives him greater latitude to discriminate — a somewhat different legal matter — the larger question we as a society are grappling with is whether, broadly speaking, it should be permissible to discriminate against gay people as it has been for most of history, or whether we have now moved beyond that.
The Republican Party’s answer to the question of whether discrimination should be allowed is: “Pretty much, yeah.” But they are fighting a rearguard action, constantly changing their position on what kinds of discrimination are acceptable as they race to catch up to a public who keep leaving them behind.
Both parties have had to evolve in response to the rapid change in public opinion, but Democrats have had a much easier time of it. And opinion has been transformed in a very short time. For instance, in 2007, the Pew Research Centre found the public opposed to same-sex marriage by a margin of 54-37. Ten years later, the public supported it by 62-32 — from 17 points in opposition to 30 points in favour. You will have a hard time finding another issue on which there has been a net swing in opinion of 47 points in just a decade.
While marriage has gotten much of the attention, the inclusion of LGBTQ Americans as people who deserve the same rights as anyone else brings with it a series of particular questions, which has led to a repeating cycle as these issues play out in our public debate. LGBTQ people demand equal treatment in some areas, and conservatives say, “My God, if we allow that, it will be a cataclysm!”
Then the public talk and think about it, and come to the collective conclusion that it is really no big deal. The change comes to pass, and eventually conservatives realise that they have lost the argument and they stop talking about it, with no more than a few exceptions. (You will not find too many Republican politicians loudly arguing that the Supreme Court should overturn Obergefell v Hodges and allow states to ban same-sex marriage again.)
They then retreat to a new, smaller hill that they say they absolutely must defend if society is to survive. OK, they say, we can live with gay people not being banned from teaching, but if they can get married, that will be a disaster. Then: OK, we can live with gay people getting married, but what really matters is that bakers be allowed to discriminate.
Yet they keep getting undermined by the facts on the ground. Again and again, the massive social disruption that conservatives have predicted when gay people are granted civil rights has failed to materialise. It has been two years since the Supreme Court legalised same-sex marriage everywhere, and straight couples have not rushed to get divorced and abandon their children.
It has been six years since the end of “Don’t Ask, Don’t Tell”, allowing gay people to serve openly in the military, and we never saw the catastrophic breakdown in morale and unit cohesion that conservatives said would occur.
It turned out that people in the military handled it just fine; just like it turns out that people handle having married gay neighbours just fine, and children handle being told that some of their friends have two mommies or two daddies just fine.
To be clear, I am not saying that gay people do not still suffer plenty of hostility and discrimination — because they do. But once Americans get a chance to talk and think about the issue, and interact with the gay people in their own lives, most of them are in favour of eliminating discrimination.
Still, that does not include everyone, and it does not include Trump’s most committed supporters, particularly the evangelical Christian conservatives who know that they are a dwindling portion of the population and increasingly feel like the culture is rejecting their values and leaving them behind — which it is.
So they can find some solace in Trump having rewarded their loyalty by waging an assault on gay rights. Here is some of what the Trump Administration has done in its nearly eight months in office, even before the case of the anti-gay baker:
• Argued in court that the Civil Rights Act does not protect gay people from discrimination in the workplace
• Moved to ban transgender Americans from serving in the armed forces
• Revoked an Obama Administration guidance to public schools instructing them to avoid discriminating against transgender students
• Removed questions on sexual identity from Department of Health and Human Services surveys, eliminating data that could be used to identify challenges LGBTQ Americans face
• Rescinded an executive order that Obama had signed requiring federal contractors to verify their compliance with civil rights laws
There will no doubt be more over the next three years, and some of it will make gay people’s lives more difficult. But it will not change the direction of history.
•Paul Waldman is a contributor to The Plum Line blog, and a senior writer at The American Prospect