Ken’s Take on the World


Twinks and Trump

Today I read an Op-Ed in The Huffington Post regarding an actual group called, “Twinks 4 Trump.”  I learned there are actually two such things http://www.huffingtonpost.com/entry/im-a-gay-dad-and-heres-what-i-want-the-twinks-4-trump_us_57a469aae4b0ccb02372168d  One site is, apparently, a parody site with all photographs and the like.  The other is actually a group of younger gay guys who claim to be conservative who further claim to support Mr. Trump in his campaign to become the 45th President of the United States.  The founder of this second group is a young man named Lucian Wintrich.  He attempts to articulate reasons for being a, “conservative” and a supporter of Donald Trump here: http://www.advocate.com/commentary/2016/8/02/twinks4trump-creator-5-things-media-gets-wrong-about-gay-conservatives  The problem with his message, and I applaud, “The Advocate” for including this, is that Mr. Wintrich missed the memo that neither Mr. Trump, nor the Republican Party are conservative in any sense of the word.

 

Many Republicans are claiming that the GOP is the opposite of the Democratic Party.  They are correct as many who claim to be Democrats say the same thing.  The problem that supporters of the Grand Old Party miss is that the opposite of, “progressive” is not, “conservative.”  The antonym of progressive is actually regressive and this is what today’s Republican Party seeks to impose on our great nation.  This is a message they have honed and promoted over the past 50 years, long before Mr. Wintrich was even born.  Lucian Wintrich and another, “alt-right” golden boy, Milo Yiannopoulos, were not even born until after some of the biggest challenges facing the LGBT community had already been fought.  They reap the benefits of the hard-fought efforts of thousands of people who refused to back down in the face of bigotry, prejudice, discrimination, and violence.  I wonder if either of them have even read about Stonewall, Anita Bryant, the AIDS epidemic, Don’t Ask, Don’t Tell, Harvey Milk, Leonard Matlovich, ACT-UP, the Mattachine Society, and others who really paved the way for the lives they are free to lead today?  I will not sit idly by while the demagogues of the Republican Party seek to roll back all of the progress made to prevent discrimination and promote equality for all people.  I will not stand around while Republicans attempt to roll back the economic advancements that have occurred over the past eight years.

 

This phenomenon, that is the fallacy of a GOP that is a tolerant and inclusive political party, is not limited to this group of younger, mostly white, guys.  We have already learned the Republican Party Platform that was approved at this year’s Republican National Committee (RNC) convention is the most notoriously anti-LGBT platform in the party’s 162-year history!!  Another group that has been supportive of the GOP for years is the Log Cabin Republicans who have also failed to recognize the messaging they claim to support regarding smaller government and fiscal responsibility is not embodied in the principles or actions of the GOP today.  And yet, someone like Mr. Yiannopoulos proclaims Mr. Trump to be the, “most pro-gay candidate in history!”  While Mr. Trump is not the most anti-gay candidate in modern history, it is clear by his statements that he is not remotely, “pro-gay.”  At best, Donald Trump is apathetic to the concerns of the LGBT community.  He has promised to appoint judges who would reverse marriage equality and other non-discrimination measures that protect LGBT citizens.  I guess folks like Wintrich and Yiannopoulos think uttering the acronym, “LGBTQ” during an acceptance speech is proof the Republican Party has finally embraced them.  For the record, Mr. Trump’s use of this nomenclature was used in reference to an attack by a Muslim on a gay nightclub in Florida that left 49 people dead and many more wounded.  It should also be noted that Mr. Trump appeared surprised that no one on the convention floor booed at his use of this language.  This comment was not in support of LGBT people, it was designed to stoke hatred of Muslims!!  This is what was being applauded on the convention floor. http://reason.com/blog/2016/08/03/lgbtq-at-the-rnc-and-dnc

 

I can only hope that, “twinks” like Mr. Wintrich and Mr. Yiannopoulos come to their senses and realize there is no place at the table within today’s Republican Party for LGBT people.  The messaging of the party today is not one of inclusiveness.  It is about divisiveness, bigotry, misogyny, racism, xenophobia, and hatred.  There is hardly any reference to fiscal responsibility.  There has been no message of hope or tolerance.  I am happy that folks like Lucian and Milo can live their lives as they see fit and I truly hope they will never have to face the challenges faced by those who came before me and that my generation experienced.

 

I would challenge Mr. Wintrich and Mr. Yiannopoulos to articulate what they believe are the actual, “conservative” principles they believe they are supporting.  I look forward to seeing, or hearing, what they have to say on that.  I am pretty certain they will be limited to the bigoted, xenophobic, arguments espoused by the Republican candidate for President and these are not conservative principles at all.

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Trumpets of Doom

This past week we were exposed to the spectacle that was the Republican National Convention.  I managed to catch bits and pieces of different speeches and read the running commentary on my Twitter feed and on Facebook.  I did take the time to watch the candidate, himself, give his acceptance speech on Thursday night.  What I observed this week is, to say the least, troubling for me as a progressive, voting, American.  The RNC convention was filled with darkness and despair.  It was, in a word, un-American, in my opinion.

 

From the refusal of the convention rules committee to respect the wishes of delegates in voting on the party platform on Monday, to the gaffes of color-coding elevator banks (White Elevators), posting white supremacist Tweets and anti-Semitic Tweets, and plagiarizing speeches, the promotion of an idea that the Democrat opponent would be arrested and jailed if Mr. Trump was elected President, and the very ugly idea that the Democratic nominee be marched in front of a firing squad by the Republican nominee’s veterans adviser, the campaign presented an ugly and hate-filled image to the world and, specifically, to Americans who are being asked to select the 45th President of the United States of America.  Even an innocuous photo showing Speaker of the House, Paul Ryan posing with the 2016 class of Republican interns demonstrated the big problem facing the Republican Party moving forward.  Surely, the Republican Party could have done better than this.

 

The events of this past week in Cleveland demonstrate a palpable anger of a large number of white Americans, a sense of frustration that transcends the typical values the Grand Old Party establishment has espoused for the past half century.  Make no mistake, the GOP has pushed the idea of racial politic for its benefit since the 1960’s.  The major difference during this campaign cycle is that the nominee has openly endorsed the idea that white people are losing ground to minorities in this country.  There is the explicit promise that Mr. Trump will, “take America back.”  Take it back from who?  Give the nation back to whom, exactly?  This nation belongs to each of us, Mr. Trump.  Each of us already has an ownership stake in the greatest nation on Earth!!  On the topic of greatness, Mr. Trump’s campaign slogan is, “Make America Great Again.”  Personally, I believe that any candidate who does not believe the United States of America is not currently the greatest nation on the planet is not fit to lead our country.  Hey, Donald Trump, if the United States of America is not currently the greatest nation in the world, tell us who we need to best to regain the title!!  Mr. Trump misses the point that greatness does not mean perfection.  The greatest leaders throughout history each had flaws.  This goes for individuals and nations.

 

President Franklin Roosevelt, in his first inauguration speech said, “So, first of all, let me assert my firm belief that the only thing we have to fear is fear itself—nameless, unreasoning, unjustified terror which paralyzes needed efforts to convert retreat into advance. In every dark hour of our national life a leadership of frankness and vigor has met with that understanding and support of the people themselves which is essential to victory.”  http://www.historymatters.gmu.edu/d/5057  Mr. Trump, in his acceptance speech pushed a sense of fear throughout his speech.  I have to give him credit in that he recognizes that fear is, perhaps, the most powerful motivator of all living things.  Unfortunately, fear is not what makes a nation, or a leader, great.  In times of trouble or anxiety, people look to a leader for inspiration and hope.  For confidence and a sense of security.  People look for firm, rational, statements and assurances of how safety and security can be established.  Mr. Trump stoked the flames of fear in his campaign speech but failed to offer any rational assurances that he could provide this.  This consistent lack of substance does not appear to faze his supporters.  In fact, Mr. Trump has said that his supporters don’t care about policy.  His supporters may not care, however, those of us who consider ourselves thoughtful and rational, demand this information in order to make an informed decision at the voting booth!!  He commented that he will be the law and order President, but has demonstrated through his comments and prior speeches that he has no understanding of the law nor a desire to operate within the law.  Mr. Trump has been described as having an authoritarian management style.  Studies on authoritarians who have risen to power demonstrate that when people are so fearful, they have a tendency to turn to an authoritarian leader, regardless of qualifications, or lack thereof.  This is what Mr. Trump is counting on—that people are so irrationally fearful they will fall in line behind his campaign.  Thus far this has worked as he managed to beat out his, much better qualified, opponents in the primary campaign.  The problem with authoritarian politicians is that they tend to be brutal and violent towards their opponents, both domestically and globally.  Regarding the wealthy, and the bankers, FDR further stated, “They know only the rules of a generation of self-seekers. They have no vision, and when there is no vision the people perish.”  I have said on multiple occasions that Mr. Trump is primarily out to benefit himself.  He is a narcissist and demonstrates an unwillingness to compromise with others.  He has boasted of this in interviews, speeches, and in his books.  This is not the attitude of our nation’s diplomatic face to the world.  Even more dangerous, Donald Trump has praised the ideas of other authoritarian leaders including Vladimir Putin and Adolph Hitler.  Likewise, the current leaders of Russia and North Korea have praised Mr. Trump’s leadership style.  I am concerned when foes of this nation begin to praise a candidate for US President.

 

Mr. Trump has further raised the ire of leaders of nations that we consider allies.  This past week, he suggested that the United States may not honor agreements made with European nations should they be attacked by another state power.  Nothing instills confidence in our friends, or gives pause to our enemies, like a potential US President who says you’re on your own.  He has said that other nation’s should be free to pursue nuclear weapons and has refused to rule out the use of such weapons if faced with a tactical threat or even as a deterrent to non-state players on the battlefield.  Such commentary is not only irresponsible from a Presidential candidate, it is reckless and dangerous.

 

Perhaps, the most concerning thing about Donald Trump is that he is not a, one-off, an anomaly within the Republican Party.  Mr. Trump has become the face of the base of the contemporary Republican Party.  This twice-divorced, socially-moderate, candidate for US President has gained the support of Evangelical Christians.  He has been endorsed by anti-LGBT and anti-abortion, so-called, “family values” organizations even though he does not support these views.  This is why he has selected Governor Mike Pence of Indiana to be his Vice President.  Governor Pence is staunchly anti-LGBT and anti-women’s rights.  He has actually been endorsed by white-supremacists, the American Nazi Party, and other racist individuals and groups.  This should serve to inform the logical, reasoned person that Mr. Trump is a dangerous individual to be considered for the position of Commander-in-Chief of our nation’s Armed Forces and as the principal law enforcement officer of the United States.  The battle for control of the soul of the Republican Party has been won by a racist, bigoted, theocratic-minded bloc.  The fight for the hearts and minds of the people of the United States of America now begins.  While irrational fear is an incredibly powerful motivator, I maintain confidence that hope is an even more powerful motivator.



Memorial Day 2016

On this Memorial Day, Americans gather together for barbeques and get-together’s with friends and family.  For many, it means a shorter work-week which is always nice.  For many families and friends this is a special day in which we come together to honor a loved one who paid the ultimate price in service to our nation.  Across the country, parades are held and wreaths are presented.  Graveyards in every state serve as the final resting place for those who gave their lives in combat zones across the globe in every war the United States has been involved in throughout history.

 

This is a tribute to a special group of military personnel.  For more than two centuries, one group of military members fought and died for their nation while hiding a very deep secret.  Gay and lesbian service members have fought, and died, in nearly every single conflict since the founding of our nation.  Because of the oppression and hostility they would face, including imprisonment, harassment, threats, and violence, these men and women, no less brave than their peers, were forced to live secret double lives.  Brave fighting men and women while in uniform and extremely discreet, closeted gay people in public.  To do otherwise put them at risk of discovery and other negative consequences.  Those brave men and women who made the ultimate sacrifice are known only to their family and friends.  Until now.

 

While the majority of lesbian and gay service members who were killed in battle throughout our history are unknown, the lifting of the military ban on openly gay service members has allowed the stories of contemporary service members to become public.  More importantly, marriage equality has permitted gay husbands and lesbian wives to collect pension and other benefits when their life mate is killed on the battlefield.

 

US Army Major Alan Rogers (09/21/1967 to 01/27/2008) was killed by an improvised explosive device (IED) while on a patrol in January of 2008 in Afghanistan.  He was the first known combat fatality know to be gay.  In 2005, his Master’s thesis discussed the failure of the military policy of, “Don’t Ask, Don’t Tell” (DADT).  His family states that they were unaware of his sexual orientation before he was killed.  Statisticians have estimated that at least 200 combat fatalities in the Iraq and Afghanistan theaters of operation were lesbian or gay.  http://www.huffingtonpost.com/aaron-belkin/gay-soldier-killed-in-afg_b_475559.html

 

Corporal Andrew Charles Wilfahrt is the first known gay service member killed in combat since the repeal of DADT.  He came out to his parents at 16 and at age 29 decided to join the Army.  He was 31 years old when he was killed by an IED on February 27, 2011.  He played piano and had scored a perfect score on an Army aptitude test. http://thefallen.militarytimes.com/army-cpl-andrew-c-wilfahrt/5837138 http://www.cnn.com/2011/US/07/02/gay.soldier.andrew.wilfahrt/

 

US Air Force Major Adrianna M. Vorderbruggen was married to her wife in 2013.  One of the first lesbian Air Force members to marry in uniform.  She was 31 when she, along with five other Air Force intelligence members, on December 21, 2015 by a suicide bomber in Afghanistan.  She is believed to be the first openly gay woman killed in combat.  http://www.startribune.com/minnesota-woman-among-six-americans-killed-in-afghan-attack/363317681/ http://www.military.com/daily-news/2015/12/23/us-military-brings-home-six-airmen-killed-in-afghanistan.html

Surely, there are many more stories of gay and lesbian service members who have lost their lives in service to their nation on battlefields around the world.  Not to mention the number of gay men and women who have been wounded in battle including the first US casualty of the Iraq war, Staff Sergeant Eric Alva.  This Memorial Day, as we remember all of those who died fighting for the United States, let us honor those, too, who fought a second battle in silence and secrecy against the very nation they served.



The “Others!!”

Watching Mr. Donald Trump win three of the first four Republican Presidential primary contests has been a frustrating, and troubling, experience for this self-identified progressive, independent American.  Political pundits have been explaining for the past several months there is no way Mr. Trump could possibly earn the GOP nomination to be President.  In the past few weeks, this narrative has changed to an assessment of how the Republican establishment has failed to contain the damage he has wrought on their party.  The sad and very tragic truth is that what we are seeing in America has not been introduced by the reality show star, real estate mogul, and entertainer, but by decades of intentional actions by the Republican Party establishment.

 

As a result of increasing social disapproval of racial discrimination, especially in more populous and northern states, throughout the 1950’s and 1960’s, and particularly fueled by the overturning of Jim Crow laws that had existed since the period of Reconstruction following the US Civil War, and the adoption of the Voting Rights Act and the US Civil Rights Act, the Republican Party made a purposeful attempt to draw poor, and working class Democrats (who had traditionally voted Democrat) into the fold.  There was a general appeal to these voter’s conservative economic views and the rampant poverty that existed throughout the South.  There was, also, a much more insidious, and covert, appeal to appeal to the racial prejudices that did not fade away following enforced desegregation of public accommodations, including schools and retail establishments.  Social norms began to evolve and overt racism declined only to be replaced by a shadowy, hidden form of racism that continued below the surface of society.

 

With the support of Southern Democrats, Barry Goldwater won the states of the Deep South in the Presidential election of 1964.  These states, Alabama, Georgia, Louisiana, Mississippi, and South Carolina.  These states were all a part of the Confederacy during the US Civil War.  While this was not enough to propel Mr. Goldwater into the White House, they served as a foundation for which Richard Nixon would add Florida, North Carolina, Tennessee, and Virginia, again, Confederate States during the Civil War, in order to become the 38th President of the United States.  The realignment of the Republican Party was nearly complete based on the racial prejudices that were motivated during this time.  In the late 1970’s and throughout the 1980’s Republicans also appealed to religious conservatives in order to increase their support which was eroding as a result of increased tolerance of racial differences.  However, there was a continuing appeal to the racial biases of poor, poorly-educated, working class white voters.

 

The rise of the Moral Majority in the very late 1970’s and into the 1980’s, was sufficient to propel Ronald Reagan, a Hollywood actor and former Governor of California, into the White House after the 1980 election.  The Moral Majority railed against women’s right, gay rights, equal pay, the minimum wage, and for a stronger military in order to prepare for a Christian Holy War against Islam.  It probably did not help that President Carter had a very lackluster Presidency noted for the Iranian Hostage Crisis.  There was an increasing anti-Muslim undercurrent present during this election which bears some similarity to today’s electoral climate.  Republican economic policies introduced throughout the 1980’s served to foster increased economic disparities.  As societal attitudes changed, the influence of the Moral Majority faded, somewhat, throughout the 1990’s and through today, although the promotion of hot button issues, including abortion and LGBT equality, has continued to bring out certain religious voting blocs during election cycles.

 

The election of President Obama in 2008 served as a catalyst for racist groups to increase their public rhetoric which, in turn, helped to fuel the establishment of the Tea Party as a significant political influence within the Republican Party.  The 2010 midterm elections saw a number of Tea Party-backed candidates elected into Congress including Senator Marco Rubio.  Senator Ted Cruz joined him in the US Senate in 2012 with significant Tea Party support.  The 2010 midterm elections began to expose the developing rifts between the Republican establishment and its base.  In light of a Federal government that appeared to be unresponsive to the desires of a Libertarian-leaning base that promoted to an extremely weak Federal government and expressing a, “States-Rights,” mantra, the Tea Party managed to increase gains in Congress during the 2012 election cycle.  Failure of Tea Party candidates to produce desired outcomes saw a bit of a pullback during the 2014 midterm elections.

 

President Obama’s election in 2008 came on the heels of the greatest economic downturn since the 1920’s and 1930’s.  While all economic groups suffered as a result of the collapse of economic powerhouses including banking, housing, and manufacturing, the recovery was most beneficial for those at the upper ends of the economic strata.  This has fueled the frustration of middle-class and working-class folks who believe government is not working for them.  The Republican Party has capitalized upon this by diverting attention away from three decades of failed economic policies and re-directing this frustration against immigrants and the poor.   Don’t blame government, we (Republicans) have been saying government cannot do anything.  It is, “The Others,” that are to blame for your economic and social status in life.  It is the gays who are responsible for the moral decay of our nation.  It is the immigrants who are responsible for low pay for your hard work.  It is the Muslims who are responsible for all terrorism.  It is not the fault of the wealthy that you are unable to advance economically and accumulate wealth, it is the fault of the poor who waste your tax dollars through food-stamp programs and, “Obama phones!!”

 

Mr. Trump, has capitalized on this message of using, “The Others” as a rallying cry for his poor and working class white supporters.  This ugly message of division, as untrue as it is, is remarkable for its effectiveness.  The American people, who should be too smart to fall for this message from a candidate such as, “The Donald” have reverted to an emotional response to fear.  This is what has become so perplexing about the Trump campaign.  Mr. Trump has not waged a political campaign on a single substantive idea.  He is not a conservative in any sense of the word.  He is not a moral man nor does he demonstrate fiscal responsibility.  And, yet, he has garnered support from evangelical Christians and a Libertarian base that supports lower taxes and smaller government.  He promises to spend more on increasing the size of our military and an incredible amount to build a wall separating the United States from Mexico.  Mr. Trump says that he will make Mexico pay for such a wall to the delight of his supporters who surely must know this is an impossibility.  He insults and threatens anyone who disagrees or opposes him.  He has insulted war heroes, journalists, women, Muslims, Jews, LGBT people, our current military personnel, first responders, and people who do not possess college degrees.  These things, alone, should have been enough to doom his campaign earlier in this election cycle.  Instead, his racially-tinged, misogynistic, bigoted, and Islamophobic, comments have drawn some of the biggest applause lines at his campaign rallies.  This is all inexplicable but for one thing.  His promotion of white, Christian, heterosexual, people as being better than others has actually increased his support among people who should know better, but are giving in to the emotions of anger, fear, and hatred.

 

While I still do not believe Mr. Trump has the ability to win a general election (I still have faith in the American people) the fact that he has used differences to successfully pit Americans against one another, and against others, is seriously troubling.  I do not believe Mr. Trump even believes much of what he is promoting, he is an entertainer, after all, but the fact that many Americans support the message lays bare a certain ugliness that is more than simply troubling.  That there exists, within Americans, animosity towards others based on their skin color, their religion, their heritage, or their gender is quite disgusting.  It would be naïve to ever think these attitudes did not exist in 2016, however, the prevalence of these attitudes is bothersome.

 

It should be noted that this concept of, “others” is not unique to the Republican Party.  The Democrats have also promoted a philosophy of others.  The difference between Democrats is that they frame this issue as one of a small group of ultra-wealthy Americans versus the rest of America.  The candidates on the Democrat side point out that the wealthiest of Americans are harming the rest of Americans.  In this battle, we are all Americans, first!!

 

Another difference between the two main political parties that has become evident to me over the past several election cycles is that the Democrat Party promotes an overall message of optimism and hope while the Republican Party markets a message of pessimism and fear.  Fear and anxiety are very powerful motivators, particularly for individuals who are insecure with themselves.  Take Mr. Trump’s campaign slogan:  “Make America Great, Again!!”  Yeah!!  Wait.  This slogan implies that America is no longer great.  I reject this suggestion completely.  The United States IS a great nation!!  It can be made even greater with the proper guidance and leadership, however, to insinuate that, at some point, America has lost her greatness is a reprehensible message to put forth!!

 

The message that must be heard by every person is that we are ALL Americans, first and foremost!!  We must reject the idea that there are, “others,” completely!!  This November, it is critical that we, as Americans, get out and vote.  Vote to reject the notion of, “others.”  Vote to KEEP America great by continuing to promote our ideals of justice, fairness, equality, and opportunity!!  YOU can keep America the greatest nation on Earth!!



Religious Intolerance

Throughout history, there are many examples of intolerance perpetrated in the name of religion.  Women, in many nations and religious traditions, have been subjugated to men and denied the rights and privileges of men.  Entire groups of people have been enslaved based on the color of their skin or their nationality or ethnic background.  Wars have been waged in the name of religion.  In the United States, there is a rich history of using religion, specifically Christian interpretations of the Holy Bible to commit atrocities against others.  Slavery, lynching, racial discrimination, segregation, bans on interracial dating or marriage, anti-LGBT violence, violence against women, anti-immigrant violence has all been justified by use of the Bible.  The recent court battles regarding same-sex marriage equality have been argued using religion as a backdrop.  Religion has been, and is still used, to support discrimination against others in the United States.

In the past few years, a number of states have promoted, so-called, religious freedom laws which would permit individuals, and businesses, to discriminate against other individuals for any reason by suggesting that not discriminating would, in essence, violate their religious beliefs.  One of the more recent attempts, in Indiana, led to a significant backlash that caused other states to reconsider their own efforts to enact such legislation.  In the wake of the recent U.S. Supreme Court decision in Obergefell v Hodges, striking down bans on same-sex marriage, far-right religious groups, including, Focus on the Family, the Heritage Foundation, the Traditional Values Coalition, and the American Family Association, among others, have pressured Congress to enact sweeping laws that would codify discrimination by individuals who invoke their religion.  These efforts are very dangerous and would violate the founding principles of our nation.

Recent lobbying efforts by these organizations have led to the reintroduction of bills including the “Marriage and Religious Freedom Act” (H.R. 3133 and S. 1808).  Other bills introduced in the House and the Senate would exempt organizations from providing adoption placement services with LGBT couples, even those who are legally married, if such placement would violate the organization’s religious beliefs.  The insidious nature of these bills allows people to claim a religious belief to justify discrimination by individuals, even in states or municipalities that already have anti-discrimination laws on their books.  None of these bills have a majority of members of the chamber as supporters and are not likely to make it to the President’s desk.  However, the introduction of these pieces of legislation should put all of us on notice that extremist religious organizations are attempting to subvert the U.S. Constitution.  Specifically, these bills, should they become law, would degrade the intent and meaning of the First Amendment religious freedom clauses by permitting individuals and businesses to force their religious beliefs upon others or to act in a discriminatory fashion toward others which would undermine state statutes or municipal ordinances that currently prohibit such discrimination.



Religious Freedom and the Restoration of Legalized Discrimination

Recently, Indiana’s Governor, Mike Pence, found himself at the center of a firestorm associated with his signing of a so-called Religious Freedom Restoration Act (RFRA).  This past week has seen Governor Pence attempting to defend, and ultimately, backpedal on the law.  The backlash has led to a number of prominent voices speaking out against the enactment of this law and the hashtag, #BoycottIndiana trending on social media sites.  The outcry has led Arkansas Governor, Asa Hutchinson to withhold his signature from a similarly-worded bill sent to him by his legislature.  Governor Rick Snyder of Michigan has vowed to veto a similar bill if sent to him by the Michigan legislature.  The Indiana legislature is currently scurrying to amend the Indiana RFRA at the behest of businesses and residents of the state.

As Governor Pence has repeatedly pointed out, Indiana was simply doing what the Federal government and, at least, 19 other states had already done.  Unfortunately, the Indiana law went further than the Federal law does and is also significantly different than the Illinois law that Governor Pence is fond of noting, then State Senator, Barack Obama, voted for.  Most people are not exactly aware of the history of these types of laws or even what they are designed to do.  A little bit of history might be in order.

Our nation’s founders were quite clear that religious influence in the public sphere could present problems that needed to be avoided.  They also recognized the important role that religion played in the lives of people and that people needed to be able to practice their religious traditions free of undue government influence.  As a result of compromise, religious expression was included in the founding document of our nation as a component of the First Amendment to the US Constitution.  This amendment included two provisions associated with religious freedom.  The first provision provided that government, “…make no law respecting an establishment of religion,…” which is frequently referred to as the, “Establishment Clause.”  The second provision that addresses religion, “or prohibiting the free exercise, thereof…” which is the more familiar part of religious liberty.

Over more than two centuries a number of conflicts regarding religious liberty have found their way through the Federal Courts and rulings have sometimes limited government overreach and sometimes limited religious expression.  A 1990 US Supreme Court Case upholding the termination of two employees who were terminated after using Peyote during Native American religious ceremonies drew the outrage of progressives and conservatives and the Religious Freedom Restoration Act of 1993 was subsequently enacted.  This law was designed to require any Federal Government action against an individual that impaired the person’s ability to freely exercise their religious liberties must meet the highest level of scrutiny in judicial review.  This is known as, “Strict scrutiny.”  A 1997 Supreme Court ruling stated the provisions of the Act could not be applied to the states.  As a result, a number of states began to enact their own RFRA to protect religious expression rights from government overreach.

The one thing that each of these Religious Freedom laws had in common was that they protected individuals and their personal religious practices from government intrusion.  For this reason, these laws have remained, essentially, non-controversial over the past dozen years or so.  What makes the Indiana law so different is that it permits private individuals to invoke a claim of protection under the state’s RFRA when challenged by another private individual.  Another significant difference is that the Federal law, most Supreme Court rulings, and other state-level RFRA’s apply to acts associated with actual practice of religious ceremony.

Another point that should be noted is that Indiana does not include statewide civil rights protections for lesbian, gay, bisexual or transgendered people.  This has led to concerns being raised regarding the potential for discrimination being levied against sexual minorities.  This concern is heightened in light of last year’s US Supreme Court ruling in the case, Burwell v Hobby Lobby Stores, Inc.  While that case addressed reproductive issues, many are concerned that an extension of the arguments made by the attorneys representing the Hobby Lobby side could be applied to lesbian, gay, bisexual or transgendered (LGBT) individuals as well.  Voices from the right and left both note the case of bakeries that have refused to bake cakes requested for celebrating same-sex marriages.  Folks on the right argue this is why RFRA’s are essential while those on the left claim these laws codify discrimination into state law.

While the original RFRA, signed into law in 1993, applied to religious practices, more recent laws, including in Indiana, attempt to apply religious expression to, “sincerely-held religious belief” as opposed to actual religious ceremony.  That is what puts these newer laws into conflict with existing state laws in some cases.  The modern RFRA not only applies to the actual participation in religious activity, but asserts that an individual who merely professes a sincere religious belief is exempt from providing goods or services that are purely secular in nature.

In the case of a business, this confounds reason.  A business receives a license to operate in a particular location as a place of public accommodation.  It is designed to serve the needs of consumers of that particular product or service.  A business is bound by applicable laws of operation for that location including hours, health inspections, accessibility, and, unlike religious entities, pays taxes.  Can a business pick and choose its customers?  A private shopping club can require its customers to purchase a membership, for example.  However, such a purchasing club cannot deny membership to a particular individual if the individual can afford to pay the membership fee and agrees to abide by the rules of the club.  Convenience stores may limit the hours, or numbers of, unaccompanied minors that may be inside a particular business.  A convenience store may not, however, deny minors access to the store or its goods or services completely.  In every state, characteristics such as race, gender, and other factors may be enshrined in state or local civil rights laws.  Failing to provide service to customers of any protected class may result in civil or criminal penalties for that business.  Government has established a compelling interest in preventing discrimination to prevent injustices such as denial of service to members of particular groups.

There is an important discussion to be had regarding religious expression versus religious belief.  Ultimately, the Courts will likely be forced to arbitrate and determine what constitutes religious expression as opposed to religious belief.  I believe there are nefarious reasons underlying the current push to implement religious freedom laws over the past few years.  I have yet to hear of an incident where one individual has attempted to interfere with the free practice, or even the free expression, of religious people.  We have all been exposed to multiple cases of individuals attempting to invoke their religious beliefs as a defense of discriminatory behavior.  Throughout history, religion and religious belief has been used as an excuse to discriminate against others.

I have heard numerous people say, “Why can’t the person just go somewhere else if the (proprietor) doesn’t want to serve them?”  Or, “Why would you want to spend your money somewhere like that?”  Or, “What about the business owners religious beliefs?  Isn’t it discriminatory to force someone to violate their religious beliefs?”  Let’s break these down.

In many places a person who would be denied service, for any reason, could possibly go somewhere else.  However, in many other places, say a small town somewhere, that business or provider may be the only game in town.  To go somewhere else places a hardship on the willing customer.  What if the business was the only auto repair dealer that was capable of handling your Porsche within fifty or a hundred miles?  Or, what if your business was known far and wide as having the very best wedding cakes in the entire state?  Why should a customer be forced to settle for, second-best?  What if it was something more important that a cake or an automobile?  What if it was a sick child?

Why would someone spend their hard-earned money where it is not wanted?  Personally, I wouldn’t.  I would also make sure my friends and family would not want to spend their hard-earned money there, either.  I would also make certain that as wide an audience as possible knew that this business only liked certain types of money.  Not only would this business not get any, “Gay” money, but they would lose out on an awful lot of non-gay money as well!!  That is not really the point, though.  The business is violating the terms of their operating license.

Am I discriminating against a business owner by demanding service?  No.  The relationship between a customer and a business is mutualistic.  The business provides a product or a service and as consideration, the customer provides payment in the form of money.   It is not discrimination to ask a baker to bake a cake.  It is not discrimination to ask a professional photographer to take a picture.  It is not discrimination to ask a Pediatrician to care for a sick child.  It would be unfair to ask a Pediatrician to perform a craniotomy or to ask a photographer to bake a cake.  Someone recently posed the question, “What if you were a Jewish baker and a Neo-Nazi wanted you to bake a cake to celebrate Adolph Hitler’s Birthday?  Could you refuse to do that?”  I pointed out this was not a religious liberty issue but, rather, a free speech issue.  Baking cakes is not an exercise of religion, but rather, in this case, a source of income generation.  I said there were four possible options.  One, the baker could bake the cake, decorate the cake, and, collect payment for doing so.  This is basic contract law.  Two, the baker could bake the cake and offer to sell the items necessary to decorate the cake to the customer who could then either decorate the cake him/herself or hire someone else to do the decorating.  Three, the baker could refer the customer to another baker who might be willing to comply with the customer’s request.  And, fourth, the baker could refuse to bake the cake at all.  In this scenario, this might be legally risky due to provisions in the Federal Civil Rights Act.

Title II of the Federal Civil Rights Act of 1964 prohibits discrimination by businesses, which are referred to as public accommodations.  Unfortunately, there are limited protected classes in this law and if the person is not a member of a protected class, they could, potentially, be denied service.  It is important to note that any contract requires, “consideration.”  That is, something of value rendered for something provided.  This requires both parties to come to agreement.  Without consideration there is, technically, no contract.

The anecdotes commonly discussed during this debate all seem to wind up revolving around a baker refusing to bake a cake for a same-sex marriage celebration.  A business owner generally does not have to provide a good or a service to a particular customer if that service or product is not in the customary line of goods or products offered.  For example, if a customer goes into a bakery asking for a wedding cake and the owner says they bake Birthday cakes but not wedding cakes then there is no issue.  However, if the bakery regularly bakes wedding cakes as well as Birthday cakes, this most likely would not be lawful.  Most states will not allow a business to deny a service or product that is customarily offered to a customer simply because the proprietor does not “like” the customer.  This would be referred to as discrimination.  If the customer is a member of a class protected under the law, the person may have a legal claim of discrimination.  In a state without protections based on sexual orientation, there is little recourse for a person denied the services of the baker other than complaining to the state’s Better Business Bureau.  This is what makes the RFRA in Indiana so insidious.  It provides a defense to individuals, and businesses, who are sued for discrimination by other individuals.  This law is not limited to actions by the government.  The state of Indiana does not currently have protections based on sexual orientation which could limit the Due Process rights of an individual who believes they have been unfairly treated.

Governor Pence, and the entire state of Indiana has experienced the collective outrage of individuals and groups who believe this is simply an attempt to legally-sanction discriminatory behavior.  This is inconsistent with our American values today.  This serves to put other states, and their legislatures and governors, on notice.  Discrimination is bad for people, it is bad for the economy, and it is bad policy.  Caveat emptor!!



Freedom from Religion

The recent passage of S. 1062 by the Arizona legislature has kicked off another firestorm regarding the rights of religious people, particularly those who identify themselves as Christian.  This argument has become, essentially, a red herring that folks on the political right like to promote to inspire their base of supporters.  It promotes an “us” versus “them” public discourse.  It is, of course, absolutely a false argument.  However, the hyping of religious believers being attacked demonstrates popular appeal among certain groups, regardless of whether such claims are true.  The flaws with advancing the position that religious liberties are under attack by, “others” in addition to being patently untrue, include linking the Constitutionally-protected 1st Amendment rights of individual religious expression with laws that are not protected activities under the US Constitution.  While the US Constitution provides very broad protections for the free exercise of religious activities in the private, and even the public, sphere, there are no protections for attempting to enforce one’s own religious beliefs on others.  At least, not in a place that is designed to serve the general public.  Even, activities like religious proselytizing are not protected as much under the “Free Exercise” clause of the 1st Amendment as they are under the “Free Speech” provisions of the amendment.

 

The Arizona law that ignited this current firestorm is similar to other state legislation that has been, or is currently, being debated in several state capitols.  This legislation purports to protect the “rights” of individuals who provide products or services to the public from “religious discrimination.”  Namely, if a provider of such services or products claims that their, “sincerely-held religious beliefs” prevent them from accommodating the consumer of such products or services, that they would be exempt from lawsuits related to the denial of said services or products.  This spate of legislation is a direct result of multiple court rulings determining that state laws preventing marriages between same-sex couples violate either state or the federal Constitution.  Specifically, the impetus for much of this legislation involves the denial of products or services to gay male or lesbian couples who sought out consumer products for their wedding ceremonies.  These denials have, in several cases, resulted in civil lawsuits that claim denial of the requests of the homosexual clients constitutes a Constitutional violation of equal protection provisions of various state Constitutions as well as the US Constitution.  In defense, licensed businesses that have been sued have claimed a 1st Amendment right of protection based on sincerely-held religious beliefs.

 

Some have suggested this is identical to the issues faced by black people in the 1950’s and 1960’s who were denied service at segregated lunch counters.  While there are similarities, it should be noted that the issues that arose in the 1950’s and early-1960’s claimed a defense of, “State’s rights” that permitted each state to define rules relating to segregation.  Ultimately, the side that promoted equal protection won out in those cases as, I believe, will happen in these cases. 

 

There are those who ask why the gay couples who were denied service at particular businesses could not simply go elsewhere to receive desired customer service.  This argument suggests a purely market-based solution which has worked, in certain situations, in the past.  However, the courts have ruled this approach is not necessary, and in fact, has been associated with actual harm to the individual harmed by the denial of service.  The courts have found that requiring someone to use another vendor, or provider of a service or product, imposes an unreasonable burden on that individual.  Numerous examples dating back to the times of legally-sanctioned discrimination clearly demonstrate this as when black people were denied service at a “Whites Only” hospital.  While seeking a photographer for an event or a cake for a party do not rise to this level of severity, consider attempting to procure these services in a very small community.  If the only baker in town was to deny a common service, like baking a cake for a celebration, the customer may be forced to forgo a product or travel a greater distance to obtain the product.  Or, perhaps, the customer approached the business owner because that business’s service or product was believed to be the very best product available.  Should the customer be forced to settle for a lesser quality product or service?  What if the customer was seeking to purchase a specialized product like a high-end automobile?  There may not be many dealers of this particular brand of automobile and if the nearest dealer refuses to provide services it would force the customer to drive a greater distance to obtain the desired product.

 

Consider a more serious issue.  Healthcare.  Perhaps you are a Muslim who suffers from a relatively uncommon medical condition and the nearest specialist that could treat your condition refuses to provide care claiming his religious beliefs forbid him from providing service to non-Christians.  In a true emergency, the physician may have a legal obligation to provide emergency care, however, for routine care, you would have to travel quite far for essential medical care.  Legislation presented to the Arizona Governor and currently under consideration in other states would make such a denial of care acceptable.

 

A number of folks have attempted to articulate that they should not be required to abandon their religious beliefs in order to participate in a same-sex marriage.  First, no one is being forced, by the states, by the courts, or by any governmental agency to participate in an actual ceremony involving the union of two people, heterosexual or homosexual.  Second, no individual, gay or straight, has attempted to demand that another person participate in an actual ceremony associated with the legal definition of a marriage.  To be clear, even when a photographer is hired to take photographs at a wedding, they are not actually participating in the ceremonial act of marriage.  It is their business that was contracted with to provide a specific service.  In at least one other case, it has been argued that refusing to bake a cake for a same-sex wedding was a protected religious liberty.  Again, the baking of a cake, is neither an integral part of a marriage ceremony nor a protected religious activity.  A bakery that has a license to operate as a business in the community is required to abide by applicable laws.  The courts have determined in numerous cases that a business operates as a service to the public and as such, a business owner cannot deny service to a customer who is able to pay for such services.

 

While the legislation currently being debated in several states is being linked to the conversation currently taking place in society and in the courts regarding marriage equality, it has been, rightfully, pointed out that such laws would have many unintended consequences that could leave any individual susceptible to the denial of customer service by any business owner.  Laws that permit, or worse, promote, discrimination are, as Jon Stewart has said on his show, “Morally-repugnant.”  A claim of “religious liberty” as a rationale for justifying discrimination is reprehensible to many people of faith throughout the country.  Such a claim is inconsistent with all of the major religious traditions and is being used as a means to advance a personal agenda of bigotry and prejudice.

 

While Governor Jan Brewer of Arizona did veto the legislation that was presented to her, it is interesting to note that several other states that had been, or are currently considering, such legislation have either withdrawn proposed discriminatory legislation or pulled back to reconsider advancing such un-American laws.  This is a result of the public debate on this issue, but also, a result of the potential economic backlash that any state that would enact such a law would face.  A very broad coalition of individuals spoke up regarding the Arizona legislation including a “trifecta” of progressives, conservatives, and businesses that joined with civil rights organizations in unity to oppose this heinous bill.  It is sad to note the amount of vitriol levied against the Arizona governor subsequent to her veto of the bill.