Responding to Arizona Gov. Jan Brewer's veto of a measure that would have sanctioned anti-gay business discrimination, The Washington Times' editorial board denounced the "lavender lobby" for asking for tolerance from "the people they despise most, men and women of faith."
In an editorial published on March 5, the Times assailed Brewer's veto as a blow to religious freedom, relying (and not for the first time) on the extremist Alliance Defending Freedom (ADF) for comment. The Times' editors argued that the only way a business owner would know a customer's sexual orientation would be if "a customer walks in announcing his sexual proclivities." The editorial also contemplated when a "wedding cake announces its sexual proclivities" (emphasis added):
The governor's veto "enables the foes of faith to more easily suppress the freedom of the people of Arizona," argued Doug Napier, a lawyer with the Alliance Defending Freedom, based in Scottsdale, Ariz.
The proposed law was not Christian-specific, as it was often portrayed in the media, and would have, for two examples, protected the right of a Muslim caterer to refuse to arrange a pig roast, or a Jewish photographer (or any other photographer of good will) to decline a commission to photograph a neo-Nazi ceremony.
In saner and less litigious times than these, there never would have been a lawsuit. Bakeries, photographers and florists serve homosexual customers every day. The market is there to serve.
Unless a customer walks in announcing his sexual proclivities, a shopkeeper wouldn't know who's gay, merely cheerful or just having a bad hair day. He knows that he hurts only himself when he turns away a customer.
A wedding cake announces its sexual proclivities only when the baker puts two men or two women on it, and this, to many, mocks authentic marriage. Or maybe putting four hairy legs on a wedding cake just offends a baker's art.
The lavender lobby has a winning streak in the courts, but what homosexuals covet most is not the tolerance of the larger society, but the approval of society, and particularly the approval of the people they despise most, men and women of faith.
From the moment Debo Adegbile was nominated to the most recent smear in the Washington Examiner, right-wing media have made clear that their objection to President Obama's pick to head the Civil Rights Division of the Department of Justice (DOJ) is that he is one of the preeminent civil rights attorneys of his generation.
Paradoxical? Only if you believe in civil rights precedent and the idea that civil rights experts should be the ones bringing civil rights cases.
Right-wing media, apparently, believe in none of that.
Byron York's attempt in the Examiner to tenuously link Adegbile with guidance from the Equal Employment Opportunity Commission was just another example of right-wing media's concern that Adegbile might do his job a little too well. Resorting to invoking right-wing media's favorite civil rights bogeyman of the long-established legal doctrine for establishing impermissible racial discrimination from unjustified racial effects, York accused Adegbile of "embrac[ing]" the EEOC's "crazy" use of disparate impact precedent. From the March 3 column:
It's not unusual for businesses to conduct a check before hiring new employees. If the check uncovers that the applicant has, say, a felony conviction in his past -- well, that can put a quick end to the application process.
But Obama's Equal Employment Opportunity Commission has ruled that the use of background checks in hiring is racially discriminatory.
Hearing that, many employers might say: This is crazy. There are companies that will reject a job candidate because he posted something embarrassing on his Facebook page, and the Obama administration is warning businesses they'll be in trouble if they don't hire convicted felons?
Of course a business, after a background check, might well choose to hire a felon. But that is the employer's decision -- not the Obama administration's.
At the moment, EEOC "guidance" does not have the force of law, no matter the threats from top EEOC officials. That's where Debo Adegbile comes in. When he was with the NAACP, Adegbile praised the commission's guidelines. Now, if he becomes the assistant attorney general for civil rights, he will have the power to pursue the same or similar policies.
In written questions, Republican Sen. Chuck Grassley asked Adegbile whether he would, if confirmed, "take action to abridge or eliminate an employer's ability to perform criminal background checks on potential employees." Adegbile embraced the EEOC position and suggested it would guide his own actions in the Justice Department. "If employers do perform background checks, the EEOC has released guidance on the subject," he told Grassley.
But York is stretching in this failed attempt to land a new hit on Adegbile.
From the March 3 edition of Premiere Radio Network's The Rush Limbaugh Show:
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Conservative New York Times columnist Ross Douthat depicted business owners who wish to discriminate against gay customers as the real victims in the debate over whether it should be permissible, as a recently vetoed Arizona bill would have authorized, for businesses to deny services to gay people on religious grounds.
In his March 2 column, Douthat conceded the inevitability of marriage equality, contending that once that debate is finished, the question will be whether marriage equality opponents will be able to express their "dissent" by, say, turning gay couples away from their businesses. Even as he urged his fellow Christian conservatives not to "call it persecution" if they're required to treat LGBT people equally, Douthat's entire column attempted to frame the fight for equal treatment as a matter of conservative victimization, rather than fundamental human dignity (emphasis added):
But there's another possibility, in which the oft-invoked analogy between opposition to gay marriage and support for segregation in the 1960s South is pushed to its logical public-policy conclusion. In this scenario, the unwilling photographer or caterer would be treated like the proprietor of a segregated lunch counter, and face fines or lose his business -- which is the intent of recent legal actions against a wedding photographer in New Mexico, a florist in Washington State, and a baker in Colorado.
Meanwhile, pressure would be brought to bear wherever the religious subculture brushed up against state power. Religious-affiliated adoption agencies would be closed if they declined to place children with same-sex couples. (This has happened in Massachusetts and Illinois.) Organizations and businesses that promoted the older definition of marriage would face constant procedural harassment, along the lines suggested by the mayors who battled with Chick-fil-A. And, eventually, religious schools and colleges would receive the same treatment as racist holdouts like Bob Jones University, losing access to public funds and seeing their tax-exempt status revoked.
I am being descriptive here, rather than self-pitying. Christians had plenty of opportunities -- thousands of years' worth -- to treat gay people with real charity, and far too often chose intolerance. (And still do, in many instances and places.) So being marginalized, being sued, losing tax-exempt status -- this will be uncomfortable, but we should keep perspective and remember our sins, and nobody should call it persecution.
But it's still important for the winning side to recognize its power. We are not really having an argument about same-sex marriage anymore, and on the evidence of Arizona, we're not having a negotiation. Instead, all that's left is the timing of the final victory -- and for the defeated to find out what settlement the victors will impose.
From the March 2 edition of Fox Broadcasting Network's Fox News Sunday.
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Following criticism over insensitive comments about Facebook's new gender options, Fox News host Clayton Morris gave a heartfelt apology to the intersex community, stating that he regretted his "stupid" remarks.
During the February 14 edition of Fox & Friends, co-host Clayton Morris joined a number of his Fox News colleagues in mocking Facebook's decision to offer its users a variety of new terms to identify their gender, including "transgender" and "cisgender."
Following a brief mention of Facebook's announcement, Morris joked that he had changed his gender identification to "intersex," describing people who are born with a physical anatomy that does not appear to fit typical definitions of male or female:
During the March 1 edition of Fox & Friends Saturday, Morris and his fellow co-hosts Anna Kooiman and Mike Jerrick discussed a high school considering making all of its graduation gowns one color in order to be inclusive of all students. Though the segment was framed by a chyron that asked "Over-Sensitive Society?", Morris quickly shifted gears to make an impassioned plea for understanding of transgender and intersex people (emphasis added):
MORRIS: There are millions of Americans and children who are born with the sexual organs who are not there or are not fully developed and therefore don't define themselves by a particular gender. I mean, that's a fact. It's not as black and white as we would like to make it. Just pick whatever color gown you want. Imagine being a parent and your daughter is born a specific way where her sexual organs are not developed. Then as a parent you have to be sensitive to the fact that your daughter doesn't identify with a particular gender.
KOOIMAN: And we've done news stories too about bathrooms and some schools, middle schools and high schools, considering having unisex bathrooms, so that these people who fit into this category won't have to pick the boys or the girls. But then you think about these young teenagers who are going through puberty, if you're a mom or a dad, do you want your daughter in the bathroom with a boy, potentially?
JERRICK: My goodness, are we overthinking this? It's just the color of a garment.
MORRIS: Just put yourself in the shoes of those children, though, who have to deal with that. Look, I made a pretty ignorant statement a few weeks ago, we were talking about the Facebook story where they added the bunch of different gender-identifying things. And I made sort of an offhanded comment and I regretted it later because now, 'Wait a second. There are people who are actually dealing with this and I'm an idiot for saying something stupid like that.' So before you open your mouth, just think about it a little bit.
Morris' comments are extremely uncharacteristic for Fox News, which has never missed an opportunity to mock and demean people with different gender identities. Morris demonstrated a degree of empathy and willingness to accept criticism rarely seen on his network. He deserves to be commended, and his colleagues who have yet to apologize could do a lot of good by following his lead.
From the February 28 edition of Premiere Radio Networks' The Rush Limbaugh Show:
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From the February 28 edition of Premiere Radio Networks' The Rush Limbaugh Show:
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Wall Street Journal columnist Peggy Noonan pointed to the fight against measures that would allow businesses to discriminate against gay and lesbian customers as further evidence of "the politicization of everything," ignoring the fact that conservative media and legislators spearheaded the push to allow individuals and businesses to deny services to the LGBT community.
In a February 27 screed lamenting the decline of "the nation's morale," Noonan launched a wide-ranging attack on "the aggressive left" and its alleged responsibility for sowing the seeds of "national division." Obamacare, the IRS, the EPA, the NSA, and Nancy Pelosi all featured in Noonan's list of terribles, as did Senate Majority Leader Harry Reid (D-NV), whom she compared to Vladimir Lenin because Obamacare. Noonan also expressed concern about "the eroding end of the idea that religious scruples and beliefs have a high place" (emphasis added):
We are suffering in great part from the politicization of everything and the spread of government not in a useful way but a destructive one. Everyone wants to help the poor, the old and the sick; the safety net exists because we want it. But voters and taxpayers feel bullied, burdened and jerked around, which again is not new but feels more intense every day. Common sense and native wit tell them America is losing the most vital part of itself in the continuing shift of power from private to public. Rules, regulations, many of them stupid, from all the agencies--local, state, federal--on the building of a house, or the starting of a business. You can only employ so many before the new insurance rules kick in so don't employ too many, don't take a chance! Which means: Don't grow. It takes the utmost commitment to start a school or improve an existing one because you'll come up against the unions, which own the politicians.
It's all part of the malaise, the sclerosis. So is the eroding end of the idea that religious scruples and beliefs have a high place that must culturally and politically be respected. The political-media complex is bravely coming down on florists with unfashionable views. On twitter Thursday the freedom-fighter who tweets as @FriedrichHayek asked: "Can the government compel a Jewish baker to deliver a wedding cake on a Saturday? If not why not." Why not indeed. Because the truly tolerant give each other a little space? On an optimistic note, the Little Sisters of the Poor haven't been put out of business and patiently await their day in court.
While Noonan lamented the implications of a world in which being LGBT isn't sufficient reason for a business owner to deny someone a service, her survey of the "politicization of everything" excluded a look at the role of conservative media outlets like Fox News in crafting the narrative that LGBT equality poses a dire threat to religious freedom - the very narrative that led legislators across the country to begin proposing bills that would make LGBT customers legitimate targets of discrimination.
Bill O'Reilly dismissed the significance of the gender wage gap, saying he isn't "buying this inequality business," and claiming that women can overcome wage inequality simply by working hard. However, O'Reilly ignores the true impact and scope of the gender wage gap, which plagues women at all stages of their careers regardless of education or experience level.
On the February 27 edition of Fox News' The O'Reilly Factor, O'Reilly criticized President Obama's 2014 State of the Union statements on the importance of closing the gender wage gap. During a conversation with Fox Business host Maria Bartiromo, O'Reilly initially acknowledged that the wage gap exists even after accounting for career and life choices. However, soon after he resorted to mocking the gap, saying, "I'm not buying this inequality business," and dismissing pay inequality as a mere political maneuver, "not a reality." O'Reilly concluded that Bartiromo's successful experience in the stock exchange was sufficient evidence that motivation and hard work can eliminate the gender wage gap, a message O'Reilly says he hopes "gets out to other women that, look, [the gender pay gap is] not perfect but it's good."
Washington Post columnist Jennifer Rubin falsely claimed an Obama administration push to expand opportunities for young men of color was unconstitutional and discriminatory, comparing it to the failed Arizona "Jim Crow" bill which would have allowed businesses to discriminate against gay couples.
President Obama announced on February 27 a $200 million, five-year initiative called "My Brother's Keeper," which intends to expand opportunities for young, at-risk men of color, ensuring they have access to health, nutrition, high-quality early education, and job opportunities, while partnering with police and local communities to reduce violence. The president will sign an order establishing an interagency task force to assess existing federal programs and recommend areas which can be expanded and improved upon, but as The New York Times reported, the initiative will rely "little on the government," and instead will largely come from the business community and nonprofits.
In her Post blog the following day, Rubin falsely characterized this push as a "federal program" which would discriminate against white men, claiming it was potentially unconstitutional and attacking the administration for using "victimhood as a political weapon" to divide the country:
The problem with hyping gender and racial differences is not simply the increased resentment and divisiveness it creates but also that it uses victimhood as a political weapon. Pretty soon words like "discrimination" lose meaning. It seems you are either for an inclusive society -- devoted to diminishing racial, ethnic, religious and other distinctions -- or you're not.
Like the Arizona anti-gay law, no good can come from a program that divides up the population by these categories.
The proposed Arizona legislation, which failed this week after Republican Governor Jan Brewer vetoed the measure because it could result in "negative consequences," would have allowed businesses to deny service to gay people on religious grounds. The bill was so extreme that even multiple Fox News personalities compared it to Jim Crow laws in the racist South, noting it was "profoundly unconstitutional" and "potentially dangerous."
My Brother's Keeper, on the other hand, is not a law which could codify segregation and endorse impermissibly discriminatory practices. In fact, Rubin's criticism of the program as "flat-out unconstitutional" manages to mangle both her source and constitutional law. Rubin exaggerated a National Review Online blog, which was far more careful than her description conveyed -- likely in recognition of the fact that race-conscious law is not and has never been automatically illegal. If state action uses race as a criteria and someone sues, a court must first carefully scrutinize the government's reasons and only then decide whether the program is constitutional. It's not even clear that the government "task force" for this partnership controls the funding and administration of these private programs, making the reference to its constitutionality and the Fourteenth Amendment likely irrelevant.
Despite Rubin's fear mongering about a discriminatory society, My Brother's Keeper merely seeks to improve opportunities for young Americans -- Americans who have historically been the victims of discrimination. As the Times reported, the president's inspiration for the initiative came from the national conversation about race, and the statistical reality that young black men are still disadvantaged in this country:
Mr. Obama said the idea for My Brother's Keeper occurred to him in the aftermath of the killing of Trayvon Martin, the Florida teenager whose death two years ago sparked a roiling national debate about race and class. He called the challenge of ensuring success for young men of color a "moral issue for our country" as he ticked off the statistics: black boys who are more likely to be suspended from school, less likely to be able to read, and almost certain to encounter the criminal justice system as either a perpetrator or a victim.
"We just assume this is an inevitable part of American life, instead of the outrage that it is," Mr. Obama told an audience of business leaders, politicians, philanthropists, young black men from a Chicago support program, and Mr. Martin's parents. "It's like a cultural backdrop for us in movies, in television. We just assume, of course it's going to be like that."
"These statistics should break our hearts," he added. "And they should compel us to act."
MSNBC and CNN both shined a spotlight on the Alliance Defending Freedom (ADF), the extreme anti-gay group behind Arizona's recent effort to allow businesses to refuse service to gay customers. The networks' decisions to profile ADF stand in stark contrast to a broader media tendency to ignore anti-gay group's records of extremism.
In the same week that Arizona Gov. Jan Brewer chose to veto SB 1062, a measure that would have expanded protections for businesses refusing service to gay customers, both CNN and MSNBC ran segments profiling ADF, which drafted the law along with the Center for Arizona policy.
During the February 25 edition of CNN's Anderson Cooper 360, Cooper noted the similarities between the talking points used by proponents of SB 1062 and similar measures in other states, tracing their shared "genetic code" back to ADF. Though Cooper invited ADF to participate in the segment, the group declined:
"This is America!" With that call to jingoism, Fox News legal correspondent Shannon Bream gave voice to a disconcerting push to grant private businesses the right to discriminate.
Bream's moment of candor came after her guest, Bernie Goldberg, cogently explained that business owners operating on Main Street don't get to pick and choose whom they serve and whom they refuse to serve. Bream jumped in:
Why not? Why not? I mean, this is America. We all have freedoms. I mean, why would you want to do business with somebody, no matter what your personal issue was that they had with you, why would you want to force them to do business with you? Why not just go down the street and say, "I'm going to spend my money to somebody who supports me and is kind to me and wants to help me and provide these services for me."
"Corporations are people, my friend," Mitt Romney quipped on the campaign trail in 2012. Increasingly, loud voices on the right are agitating to make sure that corporations and private businesses are seen as religious people who can always discriminate against employees and customers based on their religious beliefs.
Sometime in the next four months, the Supreme Court is expected to issue a ruling determining in part whether corporations can deny their employees benefits based on religious liberty protections.
At issue is a provision in the Affordable Care Act requiring for-profit businesses that offer health insurance to include coverage for contraceptive care. Religious groups, rallying behind the owners of the Hobby Lobby chain of craft stores, challenged that provision, arguing that it violated the right of Christian business owners to practice their religion.
In part this is the logical outcome of the push on the right to be more permissive of discrimination in the private sector, which Bream eloquently laid out by shouting "America" and "freedom."
In 2010, Rand Paul came under fire for saying that he objected to laws that prohibited businesses from discriminating. "I think it's bad business to exclude anybody from your restaurant," he said, "but, at the same time, I do believe in private ownership." Paul expressed general support for the Civil Rights Act of 1964, but lamented the fact that it extended to private businesses, a core piece of the legislation. The market, Paul argued, would take care of businesses that chose to discriminate.
While Paul was excoriated for his remarks, they were embraced on the right. Fox Business host John Stossel bragged that he would "go further" than Paul, calling for a partial repeal of the Civil Rights Act and give businesses the right to discriminate:
Because private businesses ought to get to discriminate. And I won't ever go to a place that's racist, and I will tell everybody else not to and I'll speak against them. But it should be their right to be racist.
That hypothesis, that private businesses should have the right to discriminate and be punished by the marketplace, has played out in recent days in the debate over an anti-gay bill in Arizona that would have made it easier for businesses to discriminate against gay customers.
That fight came after months of Fox News pushing anecdotes about Christian business owners under siege by laws the kept them from forcing their religious views onto employees and customers.
"Jan Brewer, the governor of Arizona, vetoed religious freedom," Rush Limbaugh opined on his radio show. "And, naturally, Democrats and their media allies are cheering. Even some Republicans are praising Arizona. Meanwhile, our founding fathers more than likely are spinning in their graves at about 400 rpm."
The night Brewer vetoed the bill, Ilya Shapiro, a senior fellow at the libertarian Cato Institute, argued in support of the right for businesses to discriminate on MSNBC's All In: "But in terms of private businesses doing it on their own, I think they should have the freedom and individuals should have the freedom to associate how they want."
It's a point Rand Paul and John Stossel were making in 2010. It's a point that opponents of the Civil Rights Act have been making for 50 years. And it's a chilling reality that it's once again a prominent aspect of public debate.
From the February 27 edition of Fox News' Hannity:
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From the February 27 edition of Fox News' The Kelly File:
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