Saturday, August 20, 2016

The ups and downs of equality

Tug of War
As gays and lesbians embrace activism on behalf of transgender people we must anticipate some setbacks from time to time.
On Friday Jim Geraghty questioned at the National Review (as a “crazy theory”) whether the right had won the culture war this year. After all, he posits (among other things), Target Stores blinked in response to the boycott over providing a transgender nondiscrimination policy and Caitlyn Jenner's show was canceled. Allow me to add one that Geraghty overlooked. We lost at the Supreme Court recently when the justices stayed an injunction issued by the Fourth Circuit. The stay allows  the Gloucester County School Board in Virginia to continue to deny transgender access while the case proceeds.

Christian fundamentalists, most of whom have never worked anywhere for a profit, suddenly have a keen grasp of retail management and financial modeling. Target did cut its earnings forecast. However, I continue to doubt that the Christian boycott had much to do with that. Regarding Ms. Jenner I suspect that there are many transgender people who are pleased that the annoying Caitlyn is going dark. Caitlyn is an idiot. I confess that I have never watched the show. As for that stay, Justice Breyer added a paragraph to the 5-3 decision stating “I vote to grant the application as a courtesy.” Therefore, if the injunction foreshadows a win at the Fourth Circuit then the Supreme Court, as currently constituted, would seem to tie on the matter and transgender rights prevail.

As long as we are counting wins and losses I suppose that we should consider the reaction to North Carolina's HB2, which includes the NBA moving the 2017 All-Star Game out of Charlotte. But that's not the point. We are going to press on, regardless of interim scores, with near certainty, that we will win in the long run.

Over the last eight years, marriage equality had become a proxy for gay rights. I remember with great clarity feeling gut-punched when we lost Proposition 8 in 2008. Barack Obama's win over John McCain was tainted. A loss in California, of all places. Were that not bad enough, the following year we lost Question 1 in Maine which was a people's veto of marriage equality achieved in the legislature. We were undermined by the full weight and power of the Catholic Church. Maggie Gallagher and Frank Schubert felt invincible.

To make matters worse we were squabbling among ourselves. In 2009, when AFER and Rob Reiner hired the team of Ted Olson and David Boies to litigate Proposition 8 in federal court (the case that became Perry v. Schwarzenegger), Gay Inc. was broadly opposed asserting that the case was premature in light of the composition of the Supreme Court which is where the case was likely headed.

We all know how things turned out. The Supreme Court has determined that gay citizens have a constitutional right to marriage equality. In spite of the noise, that will likely be the law of the land in perpetuity. 20 years from now kids will wonder “what was that all about?” 20 years from now no one will admit to having opposed marriage equality. As sure as I am writing this I know that, in the not too distant future, the Civil Rights Act of 1964 will be amended to include sexual orientation and gender identity as protected classes.

The reason for my optimism is that organized religion will need to change in order to survive. The Internet has changed everything. Young people can easily find out what the science supports and why. As a civil and increasingly secular society we are finding meaningful boundaries between faith and superstition. Increasingly people believe that unstable air interacting with wind shear causes tornadoes rather than gay pride parades.

I don't want to take anything for granted but it looks like Trump is about done. A President Clinton might have the opportunity to shape the Supreme Court for decades, particularly if Democrats take control of the Senate. I'm pretty confident that we will make progress.

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