A Statutory "Green Book" After 303 Creative

In 303 Creative, the Supreme Court held that at least in some circumstances a business's free speech interest in avoiding producing expression it disagrees with constitutionally must trump the application of anti-discrimination law in areas of public accommodation, notwithstanding the admittedly "compelling state interest" the latter type of law protects.

It was not so long ago that minorities in America had booklets they carried to let them know which businesses it was safe for them to patronize, knowing that in certain places and communities they could not simply assume that a hotel, restaurant, or shop open to the general public would be open to them. The Jewish Vacation Guide was one example, the Negro Motorist Green Book was another. In circumstances where discrimination was lawful, these resources served several important needs. 

First, of course, they let their readers know where certain services simply would be unavailable. One does not want to travel through or move into a town where the only hotel or restaurant will refuse to serve you. 

Second, and almost as importantly, they enabled readers to avoid shops which would refuse to grant them service. This is distinct from the first injury, because there is a severe dignitary harm in being refused service on account of one's identity even if a competing business across the street that will happily take one's dollars. One feature of public accommodations law is precisely that one doesn't have to "run the risk" that in entering a storefront on Main Street you'll endure the indignity of being asked to leave because you're the wrong skin color, religion, or sexual orientation. Absent that guarantee being fully enshrined into law, resources like the Green Book enabled travelers to know in advance which storefronts to avoid so they wouldn't have to face that sort of humiliation.

In keeping with that tradition, I wonder if one way of balancing 303 Creative's First Amendment protections with the again conceded-to-be-compelling interest in robust antidiscrimination protections is via the time-tested policy of disclosure. States can pass laws which require any business that wishes to claim a First Amendment exemption from all or part of an anti-discrimination statute to publicly announce and display that choice; and the state can likewise maintain a list of businesses which make such claims. The law would be a sort of statutory Green Book, letting patrons know what businesses are at least claiming an ability to discriminate (and by extension assuring them that businesses not on the list remain safe to patronize).

Here's my very rough crack at some model legislative language:

Sec. XXX -- Exemptions

(a) Registration. Any business which seeks to claim a First Amendment exemption from all or part of the [this state's anti-discrimination law] ("a business seeking an exemption") must, at least thirty days prior to asserting any claim for such an exemption,

(1) Register with the Secretary of State their intent to claim an exemption, including specifying which portions of the law they assert they will not comply with.

(2) The Secretary shall publish the names and addresses of all businesses who register their intent to claim an exemption under this subsection on a publicly available website, including which provisions of the law they claim exemption from. 

(b) Public display. Within thirty days of receiving a filing under Sec. (a)(1), the Secretary shall issue a notification to the business seeking an exemption stating that "WARNING: THIS BUSINESS HAS FILED FOR A FIRST AMENDMENT EXEMPTION FROM THIS STATE'S ANTI-DISCRIMINATION LAWS", including specifying which portions of the law the business claims exemption from. Unless otherwise inapplicable, the text of this notification shall be conspicuously displayed in

(1) The front window or doorway space of any physical location of the business that is open to the general public or the businesses' regular customers; and

(2) The front page of any webpage or social media account controlled by the businesses and through which it advertises its business to the general public;

(3) Notwithstanding any other portion of this subsection, if a business claiming an exemption has neither a physical storefront under subsection (b)(1) or a webpage under subsection (b)(2), the text of the notification shall be displayed in any reasonable location where it will be conspicuous for the average customer considering patronizing the business.

(c) Presumption of sincerity. Any business which complies with the provisions in this section shall be deemed to have established, as a rebuttable presumption, the sincerity of their belief that compliance with [this state's antidiscrimination laws] conflicts with their own expressive beliefs.

(d) No entitlement to, or expansion of the scope of, exemption. Except as detailed in subsection(c), compliance with the provisions of this Section shall not entitle the business seeking an exemption from antidiscrimination law to any relief from the requirements of antidiscrimination provisions beyond that which is constitutionally required under the First Amendment; nor does it immunize the business seeking an exemption from any public or private proceeding seeking to enforce anti-discrimination provisions that would not otherwise violate the First Amendment.

The basic idea of this provision is simple: if you want to claim a First Amendment right to discriminate, you have to claim it publicly, in advance, so that people who would be denied service can plan accordingly. By creating a master list of discriminators, and by requiring businesses who seek to assert a right to discriminate to prominently display their intent on their storefront, it is far less likely that customers who would end up being excluded will on accident patronize the business.

The law would have some other salutary effects as well. By creating a reasonably comprehensive list of businesses asserting a right to discriminate, the state can learn of the existence of any "dead zones" where members of certain marginalized groups may be severely restricted or entirely unable to obtain services -- data that could be very useful for future legislative action. As reflected in subsection (c), the law also I think would aid in dividing the actual true believers from the opportunists -- I assume that only those who really, truly believe in their discriminatory impulses will be willing to announce in advance to the world "I am a discriminator" (as the 303 Creative plaintiff, to her "credit", was willing to do).

What are some potential drawbacks? One possibility is that it will be assumed that a law like this will enable more businesses to discriminate than otherwise would be licensed to do so by 303 Creative; I wrote subsection(d) to try and forestall that risk. Under this statute, registering a claim for an exemption is just that -- a claim, and the claim does not guarantee success. A business that registered but whose activities were not protected under 303 Creative's umbrella would still be liable, notwithstanding their registration.

Another possible problem is the argument that a law like this itself constitutes compelled speech. On face, the requirement that the business post the "WARNING" placard in its store to me doesn't seem any different than requiring a restaurant to display the health inspection notice. But there might be something different here insofar as the broader thrust of the statute would be to force businesses to "go public" with their intention to discriminate. While there's something instinctively odd about claiming a free expression right to avoid expressing one's deeply-held beliefs, there are circumstances where such a claim makes sense -- NAACP v. Alabama is the obvious template here. Alabama in the 1950s sought to require that the NAACP disclose the names and addresses of its members; the NAACP, unsurprisingly, did not wish to make this information public and claimed a First Amendment right to keep their membership data private. The Supreme Court ruled in favor of the NAACP (incidentally, NAACP was perhaps unsurprisingly a key precedent relied upon by the Griswold Court regarding the existence of a right to privacy). The NAACP had obviously reasonable fears that disclosure of their membership would render them vulnerable to harassment and violence; the discriminating businesses might claim fears of a similar vulnerability.

NAACP is clearly distinct, however, for a simple reason: the NAACP did not simultaneously seek to keep its "expression" quiet and claim that its expressive activity entitled it to a governmental benefit  (I've always found the Little Sisters of the Poor style claim -- wanting an exemption, but also being outraged at being forced to actually ask for the exemption -- to be utterly ridiculous). With regards to its membership information, the NAACP truly wanted nothing more than to be "let alone"; there was never a circumstance where the organization would wield its membership data as a sword against the state. By contrast, by stipulation the discriminators do wish to go public regarding their beliefs when they tell the state "you can't enforce your anti-discrimination law against me because I believe X". At most, what they want is to be able to hide their beliefs until the last minute. But that's a far less pressing claim -- at some point, the business seeking the right to discriminate will have to go public with its claim, and so it does not seem unreasonable to insist that the pivotal moment occur before an unwitting customer is humiliated and denied service.

And on the subject of harassment: certainly, violence and vandalism are never justified. But often in this context, "harassment" means nothing more than a consumer counter-boycott -- the company refuses to do business with certain groups because of its beliefs; many other consumers decide accordingly that they will no longer patronize the business in protest of that discrimination (ex: the Jewish community members who no longer are purchasing from a Kosher bakery that decided it couldn't bake "pride" treats). That is not harassment, that's counter-speech. And in that register, I'd argue that under 303 Creative's logic enabling customers to know "this business asserts a right to discriminate" is free speech facilitative, not chilling.

One of the virtues of public accommodations law is that it dissipates, under normal circumstances, the inference that basic business transactions are expressive. I very much prefer a world where the bakery that bakes a cupcake for a client isn't seen as sending some sort of message of approval towards the client and the client that eats the baker's treat isn't sending a message of approval toward the baker (beyond "this cupcake is delicious"). That, to me, seems a far more pleasant space to live in than one where every turnip and widget we buy or sell can be taken as some sort of sweeping moral approval for our business partners.

But the Supreme Court did not agree. And once we open the door to saying that ordinary business transactions should be perceived as expressive, then customers as well as businesses have a strong interest in knowing the political and social views of who they're transacting with so they can assure themselves that values align, and can redirect their dollars where they do not. This is one reason I think a consequence of 303 Creative will be to supercharge "cancel culture" -- the more businesses are allowed to say "we don't serve your kind", the more customers must be allowed to say in return "well then we don't buy from your kind". The only thing worse than cancel culture is unidirectional cancel culture. If businesses can "cancel" customers for supporting gay rights, then customers should be equally empowered to cancel businesses for asserting a right to discriminate.

Again, the model language I've written above is rough. But I'm curious what First Amendment scholars and other interested parties think of the idea. We may have to tolerate certain businesses asserting a constitutionally-protected right to discriminate. But customers have rights too. One of those rights is to have confidence that one can walk into a storefront and be served as an equal. Another right is to be able to avoid patronizing businesses who insist they have a deeply held commitment to discriminating against you, your family, or your loved ones. This statute, it seems, can help bring these clashing interests into balance.

Jews Against Jews Who Discriminate

This is an interesting story about a New Jersey kosher bakery who refused to bake rainbow-frosted cupcakes because the baker decided Pride-themed events violated his conception of Jewish values. This decision, in turn, has led to a furious backlash from the rest of the local Jewish community, who are livid that the baker is citing Jewish values as justification for homophobic discrimination:

Multiple rabbis have accused the baker of bigotry, and some local Jews are boycotting his shop. The area’s Jewish federation privately said it would stop buying from Mittel before publicly walking back its position. And Eshel, an advocacy group for LGBTQ Orthodox Jews and their families, announced an “ally training” in West Orange this coming Sunday in response to the incident.

[....] 

The issue blew up as other rabbis in the area learned about what happened and commented publicly.

“When we refuse basic Jewish services to members of our community who are articulating who they are, we are excluding and dividing,” wrote Robert Tobin, rabbi of the Conservative B’nai Shalom in West Orange, in a blog post on June 22. He highlighted the Conservative movement’s recent strides toward LGBTQ inclusion, and an interpretation of the Torah that holds “humans are created in the image of God with a variety of potential gender identities and with the possibility of gender fluidity.” Tobin also reportedly addressed the incident in a sermon, according to the New Jersey Jewish News.

David Vaisberg, senior rabbi at the independent Temple B’nei Abraham in Livingston, New Jersey, tweeted that he was “so disappointed” in the bakery, which is located in a strip mall next to a kosher Chinese restaurant.

“They make great baked goods but have shown themselves to be against the LGBTQ+ in canceling orders of rainbow baked goods in Pride month,” he wrote, adding that he was letting the bakery know why they had lost his business and advised followers to “please do the same.” 

This reminded me of a working paper I heard about from years back (which I don't believe has been published, unfortunately), where the author asked Jewish, Christian, and Muslim respondents to give their views regarding government accommodations for Jewish, Christian, or Muslim business owners who for religious reasons did not want to serve gay customers. The most fascinating finding, as I recall, was that Jews were least likely to support an accommodation if they were told it was a Jewish business seeking to discriminate.

At one level, that was a surprising finding -- we'd naturally expect Jews (like all other groups) to display some level of in-group bias, being more sympathetic to claims made by their coreligionists. But on another level, this result made perfect sense to me. Ask me in the abstract about whether business owners can claim a religious exemption from having to serve gay customers, and I'll generally answer no, but I'll acknowledge the important religious freedom and pluralism concerns blah blah blah. 

But if somebody asks to do that while carrying my flag and representing my people? Oh, hell no. Screw that guy. You get your ass back into line and stop embarrassing the tribe with your homophobic nonsense. And I suspect something similar is going on in this community of New Jersey Jews.

Delaware GOP Ousts Official Over Antisemitic Remarks

Nelly Jordan, Vice-Chairwoman of the Sussex County (Delaware) GOP, has been ousted from her position after she blamed "Jews" for orchestrating Trump's impeachment and said that they were "going against God's will". Quick thoughts:

• It's good they did this. I've noted before that the GOP has proven incredibly resistant to implementing any accountability for antisemitism in its party, and this is a welcome break from that trend.
• That said, the vote was apparently razor-thin, with large numbers of people showing up to back Jordan and rail against "political correctness" and in support of "free speech". So there was significant division in the ranks on this.
• Quoth one local Republican: "If we were to throw everybody out here who made a racial/ethnic remark, this place would be totally empty." Hey, you said it, not me!
• Jordan did apologize for her remarks, and -- in what I consider to be an unbelievable upset -- she did not say "I am a strong supporter of Israel". Not once! I wish I wasn't shocked, but I was. Well done, Ms. Jordan!

In other Delaware news, a different GOP official, New Castle GOP Chairman Chris Rowe, resigned after referring to ideological opponents as "faggots" in a social media post. Though he resigned, he wants you to know that:

The Disgrace was not mine, but displayed how weak & timid society has devolved by allowing itself to be injured & offended by viewing a printed word. The words uttered by the Left are words employed by the mentally weak to push shame upon those with which they disagree. They assume because they would be offended, so would their targeted individual or group. Then again, being mentally strong, I do not get offended by words as is your aim.

Kudos to Rowe for showing how mentally strong he is (he proceeded to text the local newspaper and inform them that "The Cancel Culture are now attacking me and causing me hurt.")

Having Your (Masterpiece) Cake and Eating It Too

The Supreme Court  has issued its long-anticipated decision in the Masterpiece Cake case (where a Christian baker refused to make a wedding cake for a same-sex couple). It ruled in favor of the baker by a 7-2 vote, but on exceedingly narrow grounds (I'll get to those in a moment) that provide virtually no guidance to resolving similar cases in the future. On the other hand, given the way oral argument went, I'd say we might have even dodged a bullet.

Basically, Justice Kennedy's majority opinion concluded that certain statements by the Colorado Civil Rights Commission (which concluded that the baker had discriminated against the couple in violation of Colorado law) indicated that they held anti-religious bias. This bias tainted the proceedings in an unconstitutional manner, and hence the ruling had to be set aside.

On that point, there are two comments worth making. First, in the abstract I wholly agree that religious hostility provides a sufficient basis for invalidating a government action even in cases where -- absent said hostility -- the substantive decision might well be constitutional. If a commissioner in a case like this said "I'll be damned if I'm going to rule in favor of some towel-wearing heathen," that to me is an obvious constitutional violation on its own. So to the extent Masterpiece Cake clarifies that point of law, I have no quarrel.

Second, as applied to the facts of this case I think the evidence of anti-religious animus on the part of the Commission is pretty thin. Certainly, it is microscopic compared to the evidence of anti-religious animus in the travel ban case -- though who knows if that will matter. But if the upshot of this case is that governmental decision-makers need to step more lightly around grandstanding declarations when dealing with sensitive areas of discrimination and religious freedom, that's not the worst thing in the world.

In any event, because the Court's decision was based on a finding of religious animus in the administrative proceedings, Justice Kennedy specifically stated that the Court was making no proclamation on how a case with even identical facts (but absent the biased state-level decisionmaker) should be decided. Hence why we get no real guidance on how to handle similar disputes going forward. But the majority opinion actually contains a lot of dictum emphasizing that there are perfectly legitimate anti-discrimination considerations the state has here and can legitimately impose (in a neutral, generally-applicable fashion) onto religious objectors. So to some extent, the tea-leaf reading off this case is considerably better than one might think.

But while much of the attention has focused on the religious freedom aspects of the case, it's the compelled speech issue that I think will be more nettlesome going forward. The Court declined to wade into that issue in this case, both because it was resting on the narrow religious animus ground and because the relevant parts of the record in this case were surprisingly opaque (Justice Thomas made a game effort to argue that the issue was ripe in this case, but I'm unconvinced).

When does selling a cake become a form of (compelled) expression by the baker? On the one hand, simply selling an "off-the-rack" cake should not be viewed as compelled expression by the seller that they approve of the buyer or what the buyer plans to do with the cake (a half-century old Supreme Court case quite quickly dispensed with a claim that a barbeque vendor could circumvent anti-racism laws compelling him to serve Black customers because doing so would communicate the message that he believes in racial equality, in violation of his religious beliefs). On the far other side, consider cake orders with specific messages to be engraved like "Homosexuality is a detestable sin" (the Colorado Commission received complaints when several bakers refused to bake cakes with that message, and dismissed them). There, the compelled speech claim seems stronger. Presumably, that would have to hold in cases where the text was something like "God loves gay people same as straight" -- it's expression, and if someone genuinely doesn't want to express that message, I don't think the government can compel him to do it.

There are any number of cases in the middle. I don't think a custom-cake order necessarily becomes a case of expression (e.g., a cake with no text but where the purchaser wants a specific design) -- but what if it is specifically requested to have rainbow coloration? Or consider more anodyne messages like "Congratulations Jim and Steve". Such cases are going to reflect some difficult judgments, and we still have only dim contours on what the right legal guidelines are.

As for the other opinions: Justice Gorsuch's was predictably terrible. It rests primarily on the somewhat odd belief that there is a distinct product called a "same-sex wedding cake" that is different in-kind from a "wedding cake" (is it something in the food coloring?). Consequently, Justice Gorsuch can deny that there is any discrimination occurring against same-sex couples because the baker presumably would decline to sell both straight and gay customers a "same-sex wedding cake". This is the same logic through which gay marriage bans were not forms of anti-gay discrimination because gay and straight individuals could not perform a gay marriage, and it is eviscerated both in Justice Kagan's concurrence and Justice Ginsburg's dissent. As Justice Kagan aptly put it: "A vendor can choose the products he sells, but not the customers he serves—no matter the reason." A wedding cake is a wedding cake -- it doesn't magically become a different product because of the sexual orientation of the purchaser.

Indeed, one thing that this case made clear for me is that the category "gay marriage" may have outlived its usefulness. In American law, there are no longer "gay marriages" as a qualitatively distinct entity. There are "marriages", which are sometimes entered into by straight couples and sometimes by gay couples. Of course, people in private life are free to maintain the distinction, and sometimes those private views can carry weight (the obvious case being the right of a religious officiant not to solemnize a gay wedding). But these should be seen as areas where we're departing from the general neutrality of the law and accordingly need justification; the default understanding should be weddings are weddings are weddings.

Exploiting Queer Trust

There's been a lot of commentary -- much good, some not -- about the decision by Jewish Voice for Peace to "target" (their organizer's words) the LGBTQ group Jewish Queer Youth for infiltration and disruption at the Celebrate Israel march last week (I highly recommend JQY's statement on the event). JQY is oriented towards the at-risk Jewish queer community, especially Orthodox Jewish youth who may not have other safe or comfortable venues where they can come out. Accordingly, JVP's decision to target JQY -- and with it, a particularly vulnerable Jewish and queer population -- has been met with withering criticism by much of the rest of the Jewish community.

But I particularly want to highlight this column in Bustle by Hannah Simpson, a transgender activist with JQY who was present at the parade. JVP has defended its actions by noting that the infiltrators were themselves queer Jews. But Simpson explains, in succinct and cogent terms, just how awful JVP's actions were in the context of an organization like JQY and its efforts to provide a safe and welcoming space for at-risk queer youth.

This attack was nothing short of hurtful and terrifying. JVP violated a key tenet of the work Jewish Queer Youth and so many pro-LGBTQ groups do across this country. We welcome new members seeking hope and community through our programming, often before they are “out” anywhere else. We emphasize being open and accepting all who come through our doors. However, thanks to JVP’s violation of this trust, Jewish Queer Youth and other groups nationwide may need to scrutinize new members. Our priority is making our members feel safe, but this attack shows our openness may be abused to put our members in jeopardy.

This is really important. Part of what JQY provides for at-risk queer Jews is a space of trust. A space where they won't be viewed with suspicion, where they'll be welcomed unconditionally. Indeed, one of the more powerful portions of the JQY statement was where it went out of its way to affirm that

We also respect that there are JQY teens with strong feelings against Israel.  Some even choose to peacefully protest the parade. JQY stands with them too. Support is never contingent on point of view. Our JQY guiding Jewish principle is Eilu v' Eilu divrei elokim chaim - both these and those ideas, even when in conflict, are simultaneously the living word of G-d.

Contrast that statement with JVP's fundamental disrespect for queer Jews who don't adopt their views. It is striking.

To clear: JVP's action worked because JQY was built around the principle of not questioning who decided to walk with them. This is, sadly, a very common tactic of reactionary and illiberal militancy: exploiting open society in order to undermine it. The effect -- very often the hope -- is to undermine those open features and replace them instead with a cloistered environment of fear and mistrust. In the context of the LGBT community, it takes features that are desperately needed and leverages them against the queer population for the sake of political theater.

For vulnerable Jews who often lack for spaces where they can simply be queer, Orthodox, political, apolitical, happy, celebratory, among friends, JVP's action was more than just "anti-Israel protest". It took away something very rare, and very precious.

In electing to proceed anyway, either JVP didn't think about that consequence. Or it did.

The Natural Interpretation, Part II

Last year, I reported on Ismo, a Dutch rapper whose lyrics included the lines "I hate those fucking Jews more than the Nazis” and “don’t shake hands with faggots.” His story was notable less for the specific lyrics than for his amazing defense that "By ‘faggots’ I didn’t mean homosexuals and by ‘Jews’ I didn’t mean all Jews" (the Jews he had in mind were the "Zionist" ones, naturally). In any event, Ismo complained bitterly about people "twisting his words" so that "I hate those fucking Jews" and "don't shake hands with faggots" somehow got misinterpreted as something prejudiced.

Anyway, apparently Ismo just was acquitted of charges of hate speech in a Dutch court, which found the lyrics to be offensive but protected as artistic expression. Anti-discrimination advocates are urging the prosecution to appeal the verdict.

Since I'm an American lawyer with the usual set of free speech commitments that identity entails, my thoughts are the following:

• Under American rules regulating free speech, this is obviously the right outcome, as American constitutional jurisprudence does not allow the proscription of "hate speech" per se.
• The Netherlands, like most European countries, has a considerably less speech-protective legal regime that does permit hate speech bans.
• As a matter of policy, I generally support the American free speech position over its European competitors.
• That said, where a country does have a legal regime akin to that of the Dutch, I want it to be enforced evenly; Jews and gays should be able to claim its protections to the same degree as anybody else.
• I have no knowledge of the general contours of Dutch hate speech jurisprudence so as to speak to whether this case deviates from the norm.
• Regardless of the proper legal resolution of the case, there is no question that Ismo's lyrics were homophobic and anti-Semitic and his protestations to the contrary are laughable.

FBI Releases 2014 Hate Crime Data

When it came to hate crimes, not much changed from 2013 to 2014. It still is the case that most hate crimes have a racial motivation (47% of all hate crimes); religion and sexual orientation tie for second place, being the subject of 19% of all offenses each. Of racial hate crimes most of the targets were African-American (64%).

When it comes to religious-based hate crimes, Jews continue to be the most common targets -- 58% of such attacks targeted Jews (Muslims were the second-most frequent targets at 16%). Interestingly, at least as far as the numbers go the experience of gay men parallels that of Jews almost exactly: 58% of sexual orientation based crimes target them (and again, there were essentially the same number of sexual orientation based hate crimes as there were religious crimes). So, you know, we're in it together.

There is some good news, though: hate crimes overall dipped slightly from 2013. So that's a little heartening, I guess.

Distractions

For my money, Donté Stallworth has the best response to the idea that a gay player in the NFL would be a "distraction" for his team. To wit: an NFL season will always have distractions. If you can't handle one that is as clearly anticipated and broadcasted in advance as this one, you're doomed on the field anyway. That being said, Scott Lemiuex's contribution on the history of the "distraction" argument and other like claims which play the "it's not me, it's everyone else" game, is very good too.

What Christianity Means To Young Americans Today

This is not Europe gone mad; this is not aberration nor insanity; this is Europe; this seeming Terrible is the real soul of White culture.

-- W.E.B. Du Bois

The above quote comes from Du Bois' 1920 work Darkwater. Anyone who has read Du Bois' more famous work, The Souls of Black Folk, would recognize a distinct shift in tone. n Souls, Du Bois was always very careful to not register condemnations of Whites or White society as a whole. Racism was a problem of a few bad, backwards persons; most people of goodwill were earnestly trying to achieve justice. Twenty years of failure later, and Du Bois was writing this instead -- in his experience and for what he had seen, the true face of White culture was lynchings, Jim Crow, colonialism, and oppression. The chapter, appropriately enough, was titled The Souls of White Folk

Whether Du Bois is being fair or not, the point is that from the outside looking in this is what Whiteness meant to someone like Du Bois. Its defining characteristic was as a tool of oppression. And I thought of that when I read this post detailing what young Americans think when they think about Christianity today:

When asked by The Barna Group what words or phrases best describe Christianity, the top response among Americans ages 16-29 was “antihomosexual.” For a staggering 91 percent of non-Christians, this was the first word that came to their mind when asked about the Christian faith. The same was true for 80 percent of young churchgoers. (The next most common negative images? : “judgmental,” “hypocritical,” and “too involved in politics.”)

Is this all that Christianity is? No. But in politics, in the public sphere, it is this issue that seems to animate self-declared "Christian" political action. It defines Christianity in the eyes of the public. To assert oneself to be "a Christian" is to identify oneself with the foremost social movement backing up the oppression of gays and lesbians in America today, through unequal laws, through bullying and harassment, through constant degradation. That's true even of the many Christians who really don't care about the issue, not to mention the many Christians for whom Christianity ought actually be about promoting the equal human dignity and human rights of all.

I'm not a Christian, so I can't tell Christians what their faith is or isn't, or does or doesn't require. All I can say is that when I hear a candidate for political office loudly assert he is a Christian, I wince. Not because I think there is anything inherently wrong with being a Christian, or any religious outlook, but because the social meaning of asserting oneself to be Christian in the American political context has become almost completely absorbed by "anti-gay".

That's what it means. And if the Christian faith wants to retain any purchase on the people of my generation (and maybe it doesn't), it is an issue they're going to have to deal with. Because I find this very sad, and very tragic.

It's Grading Time!

Grading exams. Really, my first time out (obviously I graded last term too, but I only had six students and four of them did reaction papers throughout the term). This, hopefully, explains my silence.

* * *

All-boys Catholic school forfeits league championship rather than play baseball against a (*gasp*) girl.

Shorter Joshua Trevino: Physically assaulting people who look weird is what I look for in a candidate.

Jonah Goldberg is a moron: A closer look.

Out in Florida, one entrepreneur is selling a Trayvon Martin gun range target (George Zimmerman's attorney, unsurprisingly, harshly condemned this).

Senate Majority Leader Harry Reid (D-NV) on marriage equality.

I See Gay People

This year's Jerry Falwell Teletubby Memorial Award goes to ... Tony Perkins!

These days, you can't get a sugar high without experiencing a cultural low. Hello, I'm Tony Perkins of the Family Research Council in Washington, D.C. There's trouble in candy land. After more than 70 years together, Mike & Ike are calling it quits. The duo is staging a gay divorce as part of a new ad campaign to draw in younger customers. In this society, even candy has an agenda! From Facebook to Tumblr, the fruity pair says, "The rumors are true. We just couldn't agree on stuff anymore." Starting this summer, the company will spend $15 million on billboards and TV commercials that poke fun at the breakup. It's just another subtle example of society chipping away at the value of marriage. And I don't know what's more disturbing--that advertisers think divorce appeals to kids or that sexualizing candy will make people buy more.

I suppose at least Perkins has the fact that Mike & Ike have two dudely-sounding names and are presented as being in a marriage -- all Falwell had to go on was Tinky Winky's triangle symbol and purple color. But it's tough to live up to a legend like Falwell -- kudos to Perkins for giving it his best shot.

I Can't Wait To Hear What Else About the Holocaust the NYT Thinks is "Disputed"

New York Times: American Family Association's Bryan Fischer "trumpets the disputed theory that Adolph Hitler was a homosexual and that the Nazi Party was largely created by 'homosexual thugs.'"

Post-Nap Roundup

It was such a wonderful day outside. I have no idea why I came back to my apartment and collapsed into an 1.5 hour nap.

* * *

Uganda's "kill the gays" bill is back, albeit it sounds like the execution part itself has been removed.

Adam Serwer comments on the President inviting Common to the White House.

In the burgeoning intra-Iran feud between Ayatollah Khameni and Mahmoud Ahmadinejad, Geneive Abdo explains why we should root for Khamenei. Recognizing the force of her arguments, nonetheless, I myself am rooting for injuries.

Anti-Shariah laws -- bad for religious liberty, hence, bad for the Jews.

Robert Farley on Chomsky the IR theorist.

Do my homework with me! Read Martha Nussbaum's critique of Judith Butler.

Ex-Sen. Simpson Lets Fly

Wow.

SIMPSON: Who the hell is for abortion? I don’t know anybody running around with a sign that says, “Have an abortion! They’re wonderful!” They’re hideous, but they’re a deeply intimate and personal decision, and I don’t think men legislators should even vote on the issue.

Then you’ve got homosexuality, you’ve got Don’t Ask, Don’t Tell. We have homophobes on our party. That’s disgusting to me. We’re all human beings. We’re all God’s children. Now if they’re going to get off on that stuff—Santorum has said some cruel things—cruel, cruel things—about homosexuals. Ask him about it; see if he attributes the cruelness of his remarks years ago. Foul.

Now if that’s the kind of guys that are going to be on my ticket, you know, it makes you sort out hard what Reagan said, you know, “Stick with your folks.” But, I’m not sticking with people who are homophobic, anti-women, moral values—while you’re diddling your secretary while you’re giving a speech on moral values? Come on, get off of it.

I never knew much about Alan Simpson (R-WY). I kind of viewed him the same way I viewed fellow ex-Senator Bob Bennett (R-UT) -- a solid, run-of-the-mill conservative of the non-crazy faction of the party. Someone whom I disagreed with on many if not most issues, but not someone whose contribution to the polity was actively noxious. But I never would have taken him for the sort to write something like this. This is strong language -- you'd be hard-pressed to find a Democrat who'd be willing to go off on what is at the moment a massive chunk of the GOP like Simpson just did.

Wow.

Stirring up a Reaction

Rabid anti-gay remarks during committee hearings have flipped one Maryland state senator from nay to yay on a bill to legalize gay marriage.

I am going to vote for gay marriage," [Jim] Brochin [D] said. "I'm going to vote for gay marriage because the stumbling block with the word 'marriage' is my stumbling block, and it's my problem."

"I'm not going to be part of the vilification of gays on the senate floor," Brochin said. "I'm uncomfortable with the word 'marriage' but I am much more uncomfortable with the vilification of gays and homosexuality."

What delicious irony. And, I should say, great credit to Senator Brochin, for looking deep into what's going on and deciding to not let his own inner conflict align him with merchants of hate and discrimination.

The measure now has 21 of the 24 votes it needs to pass; there are at least 5 members still undecided.

Any law would likely be subject to an attempt by opponents to reverse it via referendum -- a move which has been the bane of democratically-passed gay marriage laws in the past.

Snow (Hey Oh!) Roundup

We're fine over here in the wake of the Snowpocalypse. School was canceled yesterday and today, but folks are finally starting to dig out, and we'll be back to normal tomorrow.

* * *

Utah State Rep. wants to ban gay families from participation in all public programs.

Republicans drop "forcible rape" language from their new anti-abortion bill.

Republican presidential candidates graphed on basis of their sanity and their Mormonism.

Meanwhile, Ed Kilgore measures Jon Huntsman's 2012 chances, and finds them severely wanting. He's like Romney, but even easier to call a conservative apostate.

An interview with Dos Equis' World's Most Interesting Man.

Behavioral economists, poor people, and the broken social safety net.

Max Boot chides his fellow right-wingers for pretending there's a viable alternative to ElBaradei.

Death Wish

Arkansas school board member under fire for wishing all the "queers" would commit suicide:

According to the screen grab obtained by The Advocate, McCance wrote the following about the event: "Seriously they want me to wear purple because five queers committed suicide. The only way im wearin it for them is if they all commit suicide. I cant believe the people of this world have gotten this stupid. We are honoring the fact that they sinned and killed therselves because of their sin." (sic)

You really wonder how a mind gets poisoned like this. And I feel for his kids too, since Mr. McCance has now publicly sworn to disown them if they turn out to be gay.

UPDATE: Mr. McCance says he is planning to resign, so as to not sully his community by association with his "ignorant comments".

Poser

I've always felt like Rabbi Yehuda Levin -- the Orthodox Rabbi behind NY Republican gubernatorial candidate Carl Paldino's anti=gay remarks at a synagogue -- was part of a particularly obnoxious branch of Jews who seem to desperately want to be Christian. Sometimes, when we talk about "marginal figures" within a religious group, we mean those whose views are more extreme manifestations of the general norm. For example, there are preachers whose homophobia and hatred towards gays is so extreme that embarrasses Christians as a whole, but it's perfectly fair to say that anti-gay prejudice is mainstream in political Christianity. Levin, by contrast, doesn't even seem like an "extreme Jew", so much as a Republican operative/Jerry Falwell wannabe who likes to play dress up. I mean, look at this:

“I was in the middle of eating a kosher pastrami sandwich,” Rabbi Levin said. "While I was eating it, they come running and they say, ‘Paladino became gay!’ I said, ‘What?’ And then they showed me the statement. I almost choked on the kosher salami.”

Something about the way he's repeating "kosher" here seems awfully defensive -- like he himself feels the need to defend his Jewish bona fides. Which, in a way, he does -- since his views are so far out of the Jewish mainstream as to make him a laughable figure. Laughable, that is, if he weren't professionally devoted to tying the holy name to hatred of others.

UPDATE: Assuming I understand the meaning of "cooning" (unlikely), Ta-Nehisi Coates agrees.

It Gets Better

Tim Gunn's video:

Chambliss Staffer: "All Faggots Must Die"

They're not sure who the staffer is yet, but it looks like someone in the office of Sen. Saxby Chambliss (R-GA) left a comment on a gay blog declaring that "all faggots must die". The Chambliss office is investigating.