(Yeah, we’re taking a break from blight talk at PDQ. Deal.)
Everyone who breathes oxygen these days recognizes the finality of Obergefell v. Hodges, the Supreme Court decision that put the nail in the coffin on the same-sex marriage bans. This highly manufactured controversy has bounced around in public discourse for the last 15 years. And last week’s decision is indeed final. Everyone recognizes that.
Some Republicans Created this Debate in the First Place
Yes, even Republican candidates for President all recognize it, even Ted Cruz.
Those who don’t are the kind of people on Internet fora who throw around nonsense terms like the “illegal Supreme Court”. If that term catches on in the social ultraconservative underworld, those folks will claim the crazy-dais once occupied by birthers, and the truthers before them.
But you see, it was social conservatives– or, rather–those who needed to pander to social conservatives who created this mess to begin with.
The same-sex marriage debate first became a wedge issue in 2003, an idea put forward by GOP strategist Karl Rove, former adviser to President George W. Bush. At the time Bush first uttered the words “gay marriage” in a press conference, we were knee deep in the second Iraq War and still licking the wounds from what then seemed like a nasty tech-bubble stock market crash and recession. MCI (remember that company?) was then the largest US bankruptcy.
It seemed bizarre the first day our Commander-in-Chief ever mentioned that gay marriage was some sort of threat that must be dealt with. Pundits were confused, at least for about a day. It was pretty clear why the policy to get gay marriage banned was announced: there’s an election coming. Groups you rarely ever heard of like Focus on the Family suddenly got top billing on radio programs and TV pundit shows, and the National Organization for Marriage was formed to spearhead this new front forming in the Culture Wars.
What prompted all this was a Hawaii Supreme Court decision in 1996 that first opened the door to legal gay marriages. Even then it was a matter mostly confined to Hawaii courts. But fear within political-activist evangelicals spread that this would become a thing nationwide. Then, a pre-predicted ruling came from Massachusetts’s Supreme Court legalizing gay marriage in their state. The ruling made headlines everywhere, and social conservative fears were further confirmed–Bush was proven right… this is a thing, and the issue was galvanized.
The reason why Team Bush stumped against gay marriage from the Bush Tour Bus wasn’t because the Bush family has any real deep convictions on the issue. It wasn’t a secret that VP Dick Cheney has a daughter who is a lesbian. It’s electioneering logic. Political strategists know, and many smart people who grew up in heavy evangelical population centers also know (since I am of this group), that that the self-dubbed “moral majority” is also the “La-Z-Boy” majority, more than happy to stay at home and avoid an election booth. George W. Bush had the episode of Florida 2000 burned into his memory, and the swirling questions of the legitimacy of his presidency hadn’t fully withered–an election victory the Supreme Court confirmed for him in Bush v. Gore, which seems ironic now given the ballyhoo over Obergefell. Gay marriage is the way to prevent Florida 2000 from happening again.
And the trick worked. Gay marriage was the one issue that drove out rural voters to the polls nationwide to offset Democratic voters in the major cities. The crucial state that clinched Bush’s re-election in 2004 was Ohio, the same state that was the center of last week’s Obergefell decision.
This Defeat is Truly, Utterly, Final.
Wedge issues, whether they are natural or manufactured, are designed in such a way as that there will (usually) never be a conclusion to them one way or the other. They aren’t usually crucial nation-saving problems that need to be solved immediately, like paying for the military or deciding whether to bail out the entire banking system. Those decisions happen at their own pace and get solved. Wedge issues go on forever. So a wedge issue is rarely some “clear and present danger” to our existence and mortality, much less something that affects corporate taxes or our infrastructure. These are usually social things–still important–but these issues and debates serve a more nefarious purpose: they’re an easy electioneering tool used to corral voters into pens.
Most Americans don’t realize this; most journalists don’t either because they never took Poli-Sci 101 as a rounding elective in college, and this so much of online news and cable TV news is absolutely filled with one wedge issue story after another. It’s hard stuff to ignore, but it’s easy to pundit and stretch TV time and fill countless blogs. Like Slate. Breitbart. You name it. Many Internet sites now excel in breaking “wedge issue news coverage”. Always great content filler for either side of anything, since the debate never ends.
Except when they sometimes do end.
Slavery was the wedge issue of the 18th century, one that spun out of control and obliterated part of our country’s population to resolve it a century later since our founders avoided a resolve in 1787, in retrospect it was far easier politically to resolve it then.
But that’s the exception. Access to birth control and prayer in schools are other re-occurring wedge issues–guaranteed to never see an end, much less in a war.
Abortion is the original modern-day wedge issue, one that lots of politicians absolutely love and cherish. Besides gay marriage, George W. Bush’s election campaign also brought us stem cell research as a backup wedge issue–no politician taking Bush’s argument on defunding stem cell research ever thought to make it a felony crime to unplug the cryogenic freezer holding all those precious potential humans sitting as pre-embryos (although really, few journalists at the time were aware enough to even ask politicians why they hadn’t proposed a law to jail anyone who unplugged cryolab equipment holding potential humans inside).
Wait… are you seeing a pattern to some of these wedge issues?
Of course. Most wedge issues these days revolve around something that excites evangelicals or is something on their shopping list. Like overturning Roe v. Wade. Or looking the other way at blurring the distinction of state-sponsored/encouraged religion. Like with school prayer. One could be blindly for it, until that same prayer supporter is faced with a school prayer that involves a prayer mat and the children praying to Mecca. Who’s prayers is it, exactly, that gets to be said over the school intercom? The Muslim immigrant kid from Ms. Carmichael’s ESL class, or the cheerleader who’s father is pastor of the megachurch across I-81… the one with the giant plywood crucifix by the freeway and the memorial to all the unborn children “murdered” by abortions last year? Hmm I bet we know the answer to that one.
Another thing with wedge issues like school prayer and abortion is that incumbent politicians planning legislative action on them usually do it very early in the pre-election cycle. Usually at the time when donations are being sought-after in earnest. Other wedge issues pop-up with events, like gun control. You have to be careful though once you enter this space. It’s easy to confuse simple pandering legislation like the Muzzle Mumia law with wedge issues. The unconstitutional Mumia law that tried to give a burden to judges to figure out which speech of prisoners to silence is a settled matter. Mumia himself is controversial, but the 1st Amendment is well-tested and set in stone.
What’s brilliant though about the gay marriage wedge issue is a couple of things. As a manufactured drama, the Supreme Court really drove a jagged dagger through the heart of it, and unlike abortion–the Supreme Court make sure that the debate is finally dead in their opinion. That’s pretty freakin’ rare. I don’t think I have ever really seen this actually happen in my lifetime until just now, last week.
And when I mean final, I mean absolutely final. There will be no gay marriage ghost left to haunt us with new legislation proposals surrounding gay nuptials. There’s really nothing you could propose that would not easily be stricken down by a bottom-tier judge ready to cite Obergefell and dispense with it.
Really, there’s not going to be a way to manufacture a legal case to open and reverse Obergefell, not now, and not in the lifetimes of your descendants 40 generations from now. There was no grey area left open like in Roe v. Wade where the Supreme Court left how abortions are precisely performed to state regulation, and where precisely in a pregnancy given a set of medical conditions a state can set rules, so the controversy over abortions can drag on and on and on, forever trying to push a football one way or another towards an endzone that will never be reached.
But not gay marriage. It’s absolutely, completely done and a settled matter forever. The main organization that championed the issue, the Freedom to Marry Coalition, is shutting its doors and closing up shop for good. That’s how final this is.
How Final is Final?
Yeah yeah yeah, you could amend the U.S. Constitution to override the Supreme Court decision in Obergefell. Let me put that out of your brain for good.
It takes a supermajority of the U.S. Senate to get an amendment voted out of a gridlocked Congress and sent to the states, then from there it takes two-thirds of the state legislatures in the country–meaning you have to have some pretty solid Democratic-voting states to get enough to make the amendment to the Constitution legitimate and in force.
The last time we changed the Constitution was in 1992. And then, it was because someone found a really old Constitutional amendment proposal that was still active from two-hundred years ago in 1789, just two years after we officially became a nation of laws, dusted it off and found enough state legislatures willing to ratify it to finally enact it. What was this Amendment? It blocks Congress members from receiving any pay raise they vote themselves for until after a next legislative cycle begins.
We only played fast and loose with the Constitution just once–Prohibition–which ended the Progressive Era nearly for good. Nothing but a super-popular amendment nearly everybody and their cat likes would ever make make it through. Barring another civil war, unresolved wedge issues will never become a subject of a Constitutional amendment. Ever.
So They’re Defeated. What Now?
The real fun part here is that every Republican presidential candidate already knows this issue is lost (yes, even Rick Santorum). The National Organization for Marriage no longer has any real way to claw back a single state, so now it has declared war on presidential candidates Jeb Bush and especially on Marco Rubio, simply because they didn’t throw enough invective bile that NOM-chair Brian S. Brown wanted them to.
This will be fun popcorn-watching leading up to Super Tuesday next year, but that’s all that it will be. Whichever Republican candidate reaches for fire and brimstone, whether it’s WBC style or not will have to contend with several other Republican candidates who are hungry for the same pool of evangelical voters.
Evangelical voters aren’t stupid; most of them know the gay marriage debate is over. I know plenty of this voter bloc because I have them in my family, and I grew up close enough to the Bible Belt to still feel the pulse. You can’t shake the Gay Tree again and get the rarely-voter evangelical to turn into an early voter like in 2004 again. George Bush’s strategy was a one trick pony. The faithful are faithful, not stupid.
This poker hand is also a statistical loser in the long run. Millennials don’t vote, but 200 years of voting patterns shows every indication that as their youth vanishes, they will start voting more, increasing more and more with age. Gay equality is a non-debatable-issue for most Americans 40 and younger right now, and of the under-30 set, the acceptance rate for LGBT equality spikes above 70%. Most politicians who have campaign teams who feed them polling analysis have already showed this data to their bosses.
Evangelical Christians totally failed to sell their views to the last two generations of Americans. In turn, those minds are now set. And American Christianity is itself changing. The Episcopal Church ordains gay weddings, and the topic is getting to be unavoidable to Methodists, another highly-ordered Protestant faith that is trying to find a way to settle the issue without forming a schism. Throughout American Protestantism there are already “closet churches” condoning, if not yet ready to discuss openly ordaining. They are going to move slower than public opinion. And that’s their problem to solve, and their right to decide whether to.
But gay marriage for now is a done thing. A far easier topic is left to be solved. Equality for LGBT people–which many people of faith agree is a good thing. It’s far more morally acceptable to society than pornography, that other bugaboo evangelicals had hoped politicians could curb or eradicate in the 1980s.
So now that this 13+ year long saga is over, what’s next? Well, in the hierarchy of life’s needs, marriage is somewhat a luxury if you can’t get a roof over your head or hold down some sort of a job and pay bills.
Yep–I’m talking about the thing everyone is ignoring, discrimination.
Only a handful of states have updated their anti-discrimination codes to add sexual orientation status as a protected class alongside old favorites like race, age, sex, religion, political leaning (yup! firing employees for being of the wrong political affiliation is a big no-no, political parties made sure to get themselves insurance), and national origin.
And, oh yes–forgot one. Marital status is protected. That’s a settled discrimination protection that until just recently only heterosexuals had that soon-to-marry and married LGBT people get to use now.
Side note: It won’t be long now before a plaintiff’s lawsuit is made with a gay discrimination claim reframed inside of a marital status discrimination case. It can probably devolve down to a landlord or employer left arguing that the discrimination–if it could be proved–would be based on sexual orientation, and not simply because the landlord or employer discovered a gay wedding happened… since without ENDA in place such a defendant would have to do this in order to avoid losing. That will be a fun lawsuit when it happens. Can you imagine the defense counsel? “See, ladies and gents of the jury? ACME Car Wash didn’t fire James because they found out he got married, they don’t have a problem with any of their employees getting married and having kids. The only discrimination that could have really happened here was because this was when his Pentacostal boss found out he was gay. And Jesus spoke to him one night and said that James is unclean and is smudging the windshields of every Mercedes, which is unholy. ACME is faith-based and they have a power prayer before they turn on the pressure washers, so having James there made everyone very uncomfortable as he doesn’t hold the values that ACME holds dear to itself, its staff and its level of service.”
Even fewer states also cover gender identity–which covers the broad topic of transgender people. Those who are and are not in the process of changing their gender, and so-on. Transgendered people have been virtually ignored for the last 20 years while the debate over gay males and lesbian females raged on in the gay marriage debate.
Most of the states who have no anti-discrimination protections at all only have some local protections at the county or city levels, and even then it may only apply to government employment.
The issue crops up big time in housing. Anti-gay discrimination shows up more often in housing, particularly in rental contracts and in assisted living and nursing homes. There’s a group for everything, and the most visible group fighting for gay seniors is SAGE.
Gay people get old. They go into nursing homes. If you remember what I said about gay acceptance in the U.S. population, the split is by age, so the older your generation is–the more antagonism there will be. In most places in the United States it’s perfectly OK for a provider of housing, whether it’s your everyday landlord or a large nursing care provider to banish gay people from their housing units, especially in group living units where everyone socializes in a building at least some of the time.
This should be a terrifying thought for any gay couple getting married right now and living out in the open, especially those who are above 55+ and planning for their future. ‘If we go into the senior apartments, do we let anyone know we’re gay? Will the people on our floor figure it out since we’re of the same sex in the same apartment? Do we tell them we’re sisters? What happens with visitors–do we tell them to keep quiet until we get into the unit?’ The current age group entering senior facilities is a part of the skeptical generation. They have no legal protection from antagonism or retaliation.
To live one’s life out in the open only to spend the final years right back into the closet has to be one of life’s biggest insults.
ENDA is not going to be an issue that disappears over time. It’s going to come back. Republicans in Congress were realistically toying with the idea of passing it in 2013, where the Senate gave the idea a thumbs-up.
The Problem with ENDA Has Been With Democrats, but Republicans Can Solve It
ENDA has died in Congress multiple times. The last time was when Pennsylvania Senator Pat Toomey tried to put religious exemptions into the bill, which caused Democrats to cry foul and run away from the bill. Arch conservative Republicans saw the recoil and moved to kill ENDA.
The religious exemptions to ENDA are really needed. I think everyone has had enough of the gay wedding cake fiasco, the gay wedding photography fiasco, the gay wedding pizza… you name it. All these little microcontroversies are great for website clicks and catnip for Internet pundits, but what these nothing-dilemmas are really feasting on is just the echo of the vomitorium opened by the Bush 2004 re-election campaign.
With the gay marriage wedge issue officially dead, “religious freedom” laws are the next new manufactured wedge issue, with “War on Religion” is now a thing, as if it’s stopping you–the unwashed–from heading to a church tomorrow and joining up.
Republicans right now are trying to find a way close this Pandoras Box that was opened up a decade ago and still deliver something to evangelical voters that they can bank on–even if politicians can’t promise anymore that homosexuals will disappear any better than they can make jobs appear. The trouble now is that click-whore journalism and punditry has so much invested in covering the Culture Wars, it’s as if nobody really truly wishes to see any of this end. The Supreme Court just ruined what was a really good party.
Much of Corporate America have already written a form of ENDA into their HR handbooks. Big money doner employers, and mega employers like Wal-Mart have their own corporate ENDA-style policy. Passing equality is not controversial. Making sure voters in faith groups get bright line protections written into law is what’s controversial about ENDA.
Religious Freedom laws were a piss-poor attempt at addressing cries and fears from evangelicals that their religious rights under the 1st Amendment are eroding, and ENDA is scary to them. Will sexual-orientation discrimination law mean that our parish must hire a gay priest?
MSNBC, much less the left-authors and some left-supporters of ENDA are simply unwilling to rush and assuage concerns of a confused faithful in Rural America, which is really what keeps ENDA from passing. Inserting religious protection clauses into ENDA feels like defeat, and they can’t have that. Most columnists are simply just waiting for the next pandering statement to faith groups to come out to castigate their political opponents as bona-fide crazies, then move on to some other topic, leaving ENDA to sit.
This is a shame, since the LDS Church and the Catholic Church have both articulated support for ENDA but won’t stump for it absent the sort of religious protections that has them worried.
So Here’s How You Fix ENDA, and Republicans Win
For employment, the government will have to group employment into two categories: ecclesiastical and non-ecclesiastical employment and it will have to put faith organizations into categories: groups who are churches, mosques, synagogues whose primary function is worship and religious teaching, then supportive organizations such as missionaries and fundraising organizations, then finally social service and other associated for and non-profit business (think Catholic Hospitals and insurance companies that big religious bodies like the Mormons operate).
Ecclesiastical positions are those individuals who are directly involved in the practice of worship or religious teaching. Preachers, ushers, deacons, bishops, cardinals, priests, nuns, monks, imams, rabbis–you name it, including all the faith group’s primary places of worship. That can include audio mixers, TV producers, choir directors, accountants, lighting engineers, and so forth. These are all ecclesiastical jobs and these are core people to the operation of any kind of ministry. These are the people who should be immunized from ENDA protection. If the faith group wants to adopt their own version of ENDA, that’s their business.
Non-ecclesiastical jobs are the jobs that are much further away from the mosque and the pulpit, and these jobs are already deeply protected by existing anti-discrimination law. Catholic Hospitals cannot bar a Muslim from taking a job as an orderly, and in some places where they operate, they already are barred by local LGBT discrimination law.
A Pentecostal church that operates a coin-slot laundromat with no faith activities that take place inside to help pay the bills would not be exempt from ENDA as far as the laundromat is concerned. There’s no Jesus in the spin cycle, and there’s hardly a coherent theological argument to be made that all of Christendom will fall if the church’s laundromat is faced with the only applicant for an attendant is a out gay person, the church itself will be forced to dissolve in a self-created crisis. Even if that is so, the vast majority of the public will not care. That’s a good click-whore post for Brietbart, but not enough to scare the Southern Baptist Convention into action.
If anything, many municipalities consider these “attachment businesses”, as they’re called, to be fully taxable. Pittsburgh recently went after these rent-seeking operations for property taxes. The only way to get out of paying taxes? Hold sermons in the laundromat among the din of the washing machines or pay up.
Compromise. It Should Be a Thing Again.
While bringing back ENDA in this form with church positions clearly exempted from the law may be contemptible to some purists, I can tell you for 99% of all LGBT people this is perfectly a fine arrangement. Your average LGBT person is far more worried about being denied an apartment or holding down the job at AutoZone it took 9 months to get where he’s fairly sure his shift supervisor is a bigot and is fearful he will find out about it and risk falling back into poverty or going into homelessness.
Your average LGBT person is not some vexatious litigant ready to run to the nearest Baptist ministry with vacuum cleaner in hand waiting to apply and be denied for the cleaner’s job advertised in the newspaper, where he’ll be scrubbing down the inside of the baptismal pool above the altar. Those types of litigious people certainly exist–but very few tears will be shed over it when it happens.
ENDA is far more important than that. Equality is a real fight, and we’re still light years away from it. Conservative Republicans were willing to compromise, but they can only do it if they can take a story to their voters about how their religious rights are further strengthened, preserved and clarified with bright legal lines. Purist Democrats can be coaxed into this compromise. They can be scared into it with two words: Hobby Lobby.
I think the national Republican leadership is still willing to compromise and even throw the gay marriage pizza pie bakers under the bus. My religious upbringing tried to instill in me that Mormons are heritics, but I can’t ban them from my pizza store. There are thousands of judges who will now quote Obergfell on the next stupid wedding cake case.
Hence, ENDA will need to define where public accommodation doesn’t exist in a ministry, where it may and may not exist in support organizations that a ministry owns, and where it always exists in private businesses that serve the general public.
Give LGBTQ people their equality, and give religion new guidance on how to remain unfettered and unchanged. This is what everyone really wants, and it’s up to politicians to give it to us. The best outcome for any politician in any conflict is where all sides declare victory, even if every side is misguided or blissfully ignorant of facts. A win’s a win.
The only real way ENDA can happen is with the Republican Party. And it’s up to the Republican Party whether it wants to turn the gay marriage defeat and reshape it into a civil rights and religious liberty victory, or start another 15 year cycle of a manufactured wedge issue to shake out voters to turn up to polls at election time, ignore the issue until the next election cycle, do it again until the public wises up and ignores the tactic, and then endure the torture of another 15 years of Culture War and defeat in a humiliating slip-op opinion.
The public support for anti-gay discrimination is multiple times stronger than what the support for gay marriage was when the debate first started. A judicially-ordered rendition of ENDA that satisfies no Republican is perhaps not a risk worth taking.