It used to be the debt; now it’s the minimum wage. It used to be economic freedom; now it’s concern for the poor. The right used to talk about their aversion to gay rights in straight-forward biblical cadences; now they have to obfuscate their views by referring to their own individual rights and freedoms. The frame in which we discuss issues tailors the debate. And now we are increasingly talking about issues in a liberal frame.
Lamenting that conservatives are using liberal arguments to defend recent state bills designed to promote overt discrimination against LGBT citizens, Elias Isquith is troubled that conservatives will gain legitimacy using the liberal narrative for their retrograde views. But rather than lament, perhaps Elias should celebrate the conservative need to use liberal language as another example that liberalism is now the winning game.
Isquith’s article references bills being proposed or voted on in several states that will enable discrimination ostensibly by promoting religious freedom. He rightly rejects the bills and the damage they would cause to individuals were they to be passed and enforced, and he rightly rejects the dishonest way in which they are being promoted. As he notes, “these are odious bills, so patently designed to allow some Americans to deny the rights and dignity of others that the frequently made comparisons to Jim Crow are depressingly appropriate.”
It’s my opinion that these bills will never pass constitutional muster, no matter how retrograde our judiciary may be, and their defeat in the courts will further promote LGBT rights (for a similar view see David Taffet at Dallas Voice). This is still, even after the conservative retroslaught of the last few decades, America, with a tradition of expanding protections of individual rights. It is “legal” to continue discriminating in ongoing ways; marriage is still restricted in many states to heterosexual couples. Arizona, for the time being, can refuse to allow gay marriage. It cannot, however, single out a group for discrimination and pass new laws to enforce this discrimination. This was, to a large degree, the issue in California’s failed Prop 8 battle to ban same-sex marriage. The proposition singled out a group which had been granted rights and sought to take them away. A similar situation is in effect here in Arizona (and Kansas, Idaho, Oklahoma, Hawaii, and Mississippi). A group is being singled out for new discrimination which wasn’t otherwise already taking place.
The laws are written in a vague way to give the impression that general principles of religious freedom are involved, and not gay discrimination. But I learned one important thing about legal decisions when my daughter was participating in mock trial, where students would argue a mock case in front of a real judge in a real courtroom. The case was ambiguous enough that the innocence or guilt of the defendant could turn on the quality of the arguments being presented. The judge, after hearing the case, would pronounce the defendant guilty or not guilty. I was often surprised that the judge would often rule the defendant guilty in the presence of this ambiguity, since my engineering mind took reasonable doubt to quite extreme logical limits.
The point being that jurists can decide that the laws like those proposed in Arizona are in fact designed to promote discrimination even if the wording is fuzzy. Shannon Minter, legal director for the National Center for Lesbian Rights, is confident that courts would strike down the measure if it became law. “The Arizona Senate bill is blatantly unconstitutional,” Minter said. “It violates the requirement of equal protection of the laws by openly singling out a particular group of people and saying it’s OK to discriminate against them.”
What really concerns Isquith is that conservatives are using the language of individual rights to discriminate against individuals, and taking on the mantle of an oppressed in order to justify that discrimination. In the words of the Center for Arizona Policy, “As we witness hostility towards people of faith grow like never before, we must take this opportunity to speak up for religious liberty.” Cathi Herrod, the center’s president, told CNN on Friday, “The Arizona bill has a very simple premise, that Americans should be free to live and work according to their religious faith. It’s simply about protecting religious liberty and nothing else…America still stands for the principle that religious beliefs matter (for) something in this country, that we have the right to freely exercise our religious beliefs,” she said.
Isquith notes that George Mason University public policy professor Mark Rozell once recommended that conservatives, understanding that their culture war language was repelling young people on the left and the right, should adopt “the rhetoric of ‘rights’ and ‘tolerance’ that liberals currently own” in an attempt to “speak to secular types about the value of pluralism and religious conscience.”
But as I have argued, the need to revert to the liberal narrative is a sign that the tide is turning toward liberalism, and this is a very encouraging sign. At least on the issue of gay rights, Isquith agrees. “The logic of inherent dignity and rights is too powerful, and its implications too easily understood, to be overcome by the right’s desperate contortions.” He continues, “The simplest way for opponents of LGBT rights to know they’re now losing the debate is to do nothing more than listen to themselves speak.”