Guest Post: The Freedoms at Stake in the Gay Wedding Cake Case

by Marian L. Tupy

On December 5, 2017, the Supreme Court of the United States heard the case of Masterpiece Cakeshop v Colorado Civil Rights Commission. It’s a case that raises important questions about freedom of speech and of association that even the most fervent supporters of equality for gay people ought to take to heart.

In July 2012, Charlie Craig and David Mullins, a same-sex couple, visited Masterpiece Cakeshop in Denver to order a custom wedding cake to celebrate their nuptials. Jack Phillips, the shop’s owner and a practicing Christian, was happy to sell the couple any of the goods in the store, but he refused to create a bespoke cake for a gay wedding, arguing that it would contravene his religious beliefs.

Craig and Mullins bought their wedding cake from a different bakery and went ahead with their happy event. The couple also filed a complaint with the Colorado Civil Rights Commission that oversees the enforcement of the Colorado Anti-Discrimination Act – a law prohibiting businesses open to the public from discriminating against their customers on the basis of race, religion, gender, or sexual orientation.

A lower court ruling decided in favor of the plaintiffs. The bakery was ordered to provide cakes for same-sex marriages and to “change its company policies, provide ‘comprehensive staff training’ regarding public accommodations discrimination, and provide quarterly reports for the next two years regarding steps it has taken to come into compliance and whether it has turned away any prospective customers”.

The Cato Institute, where I work, has been at the forefront of the fight for gay equality, submitting amici curiae briefs in favor of the gay community in such ground-breaking cases as Lawrence v Texas, which decriminalized sodomy in the United States in 2003, and Obergefell v Hodges, which legalised gay marriage throughout the country in 2015. In Masterpiece Cakeshop v Colorado Civil Rights Commission, we have taken Phillips’s side.

There is no inconsistency here. Just as we would support a gay baker’s right to decline to convey a homophobic message, we support this Christian baker’s right to decline to celebrate a same-sex wedding. That is because Masterpiece isn’t really about religious liberty – apart from claims that the Colorado Civil Rights Commission itself treats the religious and nonreligious differently, something that concerned the swing Justice Anthony Kennedy at oral argument – but about freedom of speech.

As my learned colleagues wrote, the Supreme Court has repeatedly held “that what the First Amendment protects is a ‘freedom of the individual mind’, which the government violates whenever it tells a person what she must or must not say. Forcing a baker to create a unique piece of art violates that freedom of mind…

“Although making cakes may not initially appear to be speech to some, it is a form of artistic expression and therefore constitutionally protected… Indeed, the Supreme Court has long recognized that the First Amendment protects artistic as well as verbal expression, and that protection should likewise extend to this sort of baking – even if it’s not ideological and even if done to make money.”

No matter which side wins, the final decision in Masterpiece Cakeshop v Colorado Civil Rights Commission is likely to reverberate for many years to come. That’s because the case does not deal with government discrimination, which everyone abhors, but with private discrimination, which is, in some fashion, unavoidable. Each day, all of us discriminate against things (which car to buy), actions (where to eat) and people (who to go out with).

The law says that private discrimination is fine so long as it does not involve a business, which ought to be open to everyone. That’s a perfectly fine legal distinction, but not a logical or moral one. Consider the following scenario:

Suppose that you operate a private dining club – such as the one described by Dana Bate in her superb 2013 book Girls’ Guide to Love and Supper Clubs. You rent a space where you can indulge your passion for cooking and choose from a list of paying gourmands in accordance with your preference for, exempli gratia, straight people. Is that discrimination? No court has ruled so. Yet, Bate’s supper club is basically a business, except for incorporation. Were you to incorporate, you would be guilty of discrimination. Without it, you are free to do as you please.

So, private discrimination is not cut and dried. As one of the pioneers of gay marriage, the British-born writer Andrew Sullivan, noted, advocates of gay equality ought to acquire some perspective. “I think it was a prudential mistake to sue the baker,” he wrote. “Live and let live would have been a far better response.” That’s where Cato stands as well.

Reprinted from CapX.

Marian L. Tupy is the editor of HumanProgress.org and a senior policy analyst at the Center for Global Liberty and Prosperity.

This article was originally published on FEE.org. Read the original article.

From the Archives: CPAC bars GOProud; presidential candidate Gary Johnson presciently weighs in

CPAC bars GOProud; presidential candidate Gary Johnson presciently weighs in
August 3, 2011 11:54 PM MST

In the lead-up to the 2011 Conservative Political Action Conference (CPAC), a minor controversy developed with regard to the presence of GOProud, an organization of gay conservatives and their allies. Several long-time CPAC participants announced that they would not take part in the 2011 conference because of GOProud’s presence.

The controversy came to a head, if not a conclusion, on July 29, when Gregg Keller, executive director of the American Conservative Union (ACU), which runs CPAC each year, sent a letter to GOProud’s Jimmy LaSalvia with what GOProud characterized as “disappointing news.”

‘Not invited’

Keller told LaSalvia: “As a courtesy to your organization, a previous co-sponsor of CPAC, this letter serves to inform you that GOProud will not be invited to participate in a formal role for CPAC events scheduled during the 2012 election cycle.”

According to the Daily Caller, a similar letter was sent to the John Birch Society, which had a formal presence at CPAC for the first time in 2011.

Keller went on in the letter to say that GOProud members were welcome to attend CPAC and its programs as “individual registrants.”

‘Divisive agenda’

GOProud’s board of directors issued a response to the letter that said, in part, ““For the last two years, GOProud has sought to support CPAC and keep the conservative movement united. Unfortunately, elements inside and outside of ACU have pushed their own narrow, divisive and sometimes personal agenda. They have done so at the expense of the conservative movement.”

The GOProud board added that the focus of the conservative movement should be on defeating Barack Obama next year, not on internal bickering.

During CPAC, the Charlottesville Libertarian Examiner had an opportunity to interview Republican presidential candidate Gary Johnson and asked him specifically about the GOProud controversy. His words presaged GOProud's reaction to its banishment from CPAC.


‘Gay rights are included’

Johnson, who has distinguished himself within the Republican presidential field with his libertarian positions on social issues, said the situation was “unfortunate.”

Governor Gary Johnson at CPAC 2011

Republicans, he said, quoting the Declaration of Independence, espouse as central values “life, liberty and the pursuit of happiness.”

Johnson said that “liberty and freedom” are basic “tenets of what this country" stands for and that “gay rights are included in that" vision.

The former two-term New Mexico governor went on to say that “what I’m really trying to do is grow the Republican Party” because he thinks the GOP “is the only party capable of fixing where we’re at right now.”

Looking toward 2012, Johnson stated his hope “that Americans would give Republicans another shot at doing that -- but to do that, the Republican Party’s got to grow, got to be bigger than a narrow focus.”

In July, Johnson followed up on his comments at CPAC by becoming the first presidential candidate to refuse to sign the so-called “Family Leader” pledge in Iowa, calling it “offensive and unRepublican” because of its animus toward members of minority groups. At the same time, he released a campaign video titled “Tolerance Is American.”

Publisher's note: This article was originally published on Examiner.com on August 3, 2011. The Examiner.com publishing platform was discontinued July 1, 2016, and its web site went dark on or about July 10, 2016.  I am republishing this piece in an effort to preserve it and all my other contributions to Examiner.com since April 6, 2010. It is reposted here without most of the internal links that were in the original.

Guest Post: From gay Nazis to 'we're here, we're queer': A century of arguing about gay pride

Laurie Marhoefer, University of Washington

This month, hundreds of thousands of people around the world will join gay pride marches in cities big and small. In many cities, pride marches are controversial. In some – like Moscow – they are even banned. But for many people in North America, parts of Europe, Latin America and elsewhere, attending the local pride march has become an unremarkable ritual of summer.

Gay pride parade, Washington, DC, 1988

There are still good reasons to march. Few countries around the world have robust protections for gay and transgender rights. And pride marches, the LGBTQ political rallies that take the form of exuberant, outrageous parades, often meet hostile counterdemonstrators.

But such expressions of pride have faced another sort of opposition: from within the queer and trans communities themselves. One reason is that gay and trans rights doesn’t describe a single, unitary political movement.

I am a historian of queer and trans politics. My research, together with that of James Steakley, Katie Sutton, Robert Beachy and many others, shows that there are several traditions of gay and trans activism. These traditions have not always gotten along. And some of them hate what pride is all about.

A history of multiple movements

Gay and trans rights movements are quite old. For more than 100 years, political groups have been fighting on behalf of same-sex desires, gender nonconformity and transition from one gender to the other – although the terms “gay rights” and “trans rights” are relatively recent inventions.

By the late 1800s, a movement that called itself “homosexual emancipation” formed in Germany. It boomed after World War I and flourished in the 1920s under the democracy that existed before the Nazis took over. The movement included people who called themselves “transvestites.” Were they alive today, many would probably use the term transgender.

From the beginning, gay and transgender activists split into a dizzying array of factions. All were in favor of greater legal and social tolerance for same-sex relationships. But beyond that narrow common ground, they were a political hodgepodge.

Some were leftists. One prominent leader of a gay rights group was also an important player in Berlin’s communist party. Others were middle-of-the road, calling for the end of Germany’s law against sodomy but otherwise content with the status quo. There were even right-wing, explicitly racist gay rights activists.

The Nazi Party itself was zealously anti-gay. Once in power, the Nazis murdered thousands of men for the “crime” of male-male sex. Yet, the historical record shows that a small number of men quietly belonged to both the homosexual emancipation movement and the Nazi Party, though they were not open about their sexuality within the party. Historians are still debating the significance of homosexuality in the Nazi Party. The small faction of gay fascists lauded erotic relationships between manly, “Aryan” soldier types while loathing feminists, Jews and leftists.

As you might imagine, these different camps within the homosexual emancipation movement did not agree on lots of things.

A debate about discretion

One of their big disagreements was about discretion: Was it acceptable for same-sex couples and gender nonconformists to cavort in view of the straight public?

The 1972 film ‘Cabaret’ is set in Berlin prior to the Nazi seizure of power. The story deals with homosexuality and the rise of Nazism.

Fifty years before pride marches began, 1920s Berlin had a jumping nightlife of gay male, lesbian and transvestite establishments featuring clubs like the Eldorado – known for its cross-dressing wait staff – and dance palaces like the Magic Flute. There was even a yearly all-women moonlight cruise. The pre-Nazi government’s approach was live and let live.

Not all advocates of gay rights, however, liked this public culture.

One man, a self-professed gay Nazi, wrote that Berlin’s clubs were “insalubrious” places where people surrendered to their animal lusts, and that “the general public inevitably gets the impression that it” – that is, the gay rights movement – “is all about sex.” This man wanted to celebrate homoerotic comradeship, a spiritual love, as he described it, as well as a physical one. However, he wanted to celebrate this manly love with maximum discretion, and certainly not in public. He wrote: “What two men do in the barracks,” by which he meant the barracks of the Nazi Party militia, “is no one’s business.”

Such complaints were not limited to the far right. Moderate activists had their own doubts about the bars and dance halls. One leader of transvestites warned, “When we demand that the public acknowledge us, then we have the duty to dress and conduct ourselves publicly in an inconspicuous manner.” Transvestites were told to avoid gaudy accessories like costume rings or oversized earrings.

To admit that one was homosexual or a transvestite in public in the 1920s was to court serious social and legal consequences. Activists of that era probably could not have imagined that one day people would march in large groups down public streets celebrating their homosexual and transgender selves.

‘We’re here, we’re queer’

In 1970, activists organized the first pride marches to mark the one-year anniversary of the Stonewall riots. Those riots occurred the summer before when people fought back against a police raid of a queer bar called the Stonewall Inn in New York’s Greenwich Village.

Pride exploded the old worries about discretion when it arrived in cities around the world in the 1970s.

Pride reveled in gaudy accessories. It had lots of scanty dress, too, from drag queens in slinky gowns to shirtless dykes with political slogans scrawled in marker across their chests. By bringing the party – along with the politics – into the streets in broad daylight, pride fought against homophobia. At the same time, it flatly rejected the old fears about overt public displays.

“We’re here, we’re queer, get used to it,” a favorite chant at pride, was not only directed at mainstream, straight society. It was also, in my opinion, an answer-back to the debate about discretion that had marked the long history of gay and trans activism.

More debates about pride

By the 1990s, pride marches had run into more controversy within activist circles. They were criticized as too commercial, too male-dominated, too devoid of a broader left-of-center political agenda and insufficiently inclusive of people of color – or indeed downright racist and Islamophobic. Alternative demonstrations cropped up, like Berlin’s Alternative Pride and New York City’s Dyke March. Debates about pride continue to this day.

Pride is in part what people make of it. A pride march can have a social justice agenda. Or it can have a pro-Trump agenda.

Yet pride’s history is a story of a radical break with right-wing and even middle-of-the-road gay and trans politics. Pride rejected respectability and discretion.

Traces of that history probably survive in your local pride march. Look for the people who are not worried about alarming the straights.

Laurie Marhoefer, Assistant Professor of History, University of Washington

This article was originally published on The Conversation. Read the original article.

From the Archives: Libertarians praise Supreme Court's gay marriage ruling in DOMA case

Libertarians praise Supreme Court's gay marriage ruling in DOMA case
June 27, 2013 4:01 PM MST

In separate news releases distributed on June 26, shortly after the U.S. Supreme Court handed down its decision in the case of Windsor v. United States, which overturned Section 3 of the 1996 Defense of Marriage Act, the national Libertarian Party and the Libertarian Party of Virginia both praised the Court's ruling.

Geoffrey J. Neale, chairman of the Libertarian National Committee, called the DOMA decision "a landmark victory for personal freedom."

The Democratic and Republican politicians who voted for the Defense of Marriage Act in 1996, he said, and who "let stand government intrusion into the private contracts and choices of consenting adults will be remembered for their inhumanity on this issue."

The national party's press release quoted the Libertarian Party platform, which says that "sexual orientation, preference, gender, or gender identity should have no impact on the government's treatment of individuals, such as in current marriage, child custody, adoption, immigration or military service laws."

Two candidates for the Virginia House of Delegates were quoted in the LPVA's news release, which was distributed by email. Both said they will work to repeal Virginia's constitutional prohibition on same-sex marriage.

Arlington-based tax attorney Lindsey Bolton, who is running for the 47th House district seat now held by Democrat Patrick Hope, said that when she is elected she will “introduce a resolution that the Commonwealth's role regarding marriage is merely to respect and uphold a contract."

Liberty University alumnus Jonathan Parrish, who is seeking to unseat Republican Delegate T. Scott Garrett in the 23rd House district, said “it is nice to finally see a decision being made that ensure same sex couples will have access to the same benefits that straight couples do. As they pay the same taxes, this decision is long overdue.”

Earlier this week, Robert Sarvis, the Libertarian nominee for governor, released a campaign video stating his intention to "fight for marriage equality" in the Old Dominion.

“By protecting personal and economic freedom," Sarvis said on June 26 while announcing he had qualified for the November general election ballot, "we can make Virginia the envy of the world, with a growing economy that adds jobs and raises incomes, and a system of laws providing equality and justice for all. So let's buck the two-party system, bring people together, and build a Virginia that's open-minded and open for business.”

Publisher's note: This article is part of a series to mark June as Gay Pride Month. It was originally published on Examiner.com on June 27, 2013. The Examiner.com publishing platform was discontinued July 1, 2016, and its web site went dark on or about July 10, 2016.  I am republishing this piece in an effort to preserve it and all my other contributions to Examiner.com since April 6, 2010. It is reposted here without most of the internal links that were in the original.

From the Archives: Gay-rights pioneer Franklin Kameny remembers his civil disobedience – Part II

Gay-rights pioneer Franklin Kameny remembers his civil disobedience – Part II
December 31, 2010 2:18 AM MST

World War II veteran and gay-rights activist Franklin Kameny has been involved in civil liberties protests for almost 50 years, since shortly after he was fired by the federal government for being gay.

In an exclusive interview with the Charlottesville Libertarian Examiner last May at the National Press Club in Washington, Kameny remembered several occasions when exercising his First Amendment rights to assembly and expression led to his arrest. Three of them are recounted here.

Supreme Court steps

One memorable moment was on the steps of the U.S. Supreme Court in 1987, during that year’s gay-rights March on Washington, which, Kameny noted, “relevantly occurred one year after the Supreme Court’s decision in Bowers v. Hardwick on the Georgia sodomy law, the one that was finally overturned in 2003 by Lawrence v. Texas.”

He was part of “a sizable sub-demonstration at the steps of the Supreme Court and in those days that whole plaza in front was not open to the public. In fact, they had just opened that section of First Street to the public.

“A number of people, individually and in groups, wanted to protest vigorously on the plaza. There was a police barricade right at the top of the lower level of steps.”

The police, he said, were well-organized and, after a fashion, assisted in the protest.

“They would allow a group of protesters in and onto the plaza and then let us be there for a while and then order us away. If we didn’t go away, then they arrested us.”

Kameny’s “little group didn’t go away, so they lowered us into a paddy wagon and I spent much of the rest of the day” at the police precinct on Fourth Street and Indiana Avenue in Judiciary Square, where his arrest was processed.

He recalled that “Hardwick himself was there and I ended up paying a fine. I remember it vaguely as $50 dollars by pleading guilty and that ended that particular arrest sequence.”

D.C. City Council
He pointed out “a few other civil liberties type occasions,” including one in Philadelphia in the 1970s and specifically remembering one in 1991 or 1992, when the chair of the D.C. “City Council Judiciary Committee would not process the bill to repeal the sodomy law and eight of us had a sit-in in her office”

The eight, he said, “were arrested and I spent the rest of the day in a lock-up at the main police headquarters,” leaving late at night, paying a fine, “and that was that.”

The story does not end there:

“We got the law passed in ’93. I wrote the section of the repeal, actually, and that ended that.”

South African Embassy
A third incident that Kameny remembers did not involve a gay-rights issue.

“One time,” he said, “then-Delegate [Walter] Fauntroy and I and some others -- on not a gay issue at all -- picketed the South African Embassy.”

The time was the mid-1980s, probably 1986, when there were a series of protests against the apartheid regime then governing South Africa. A number of celebrities – actors, musicians, poets, and politicians – offered themselves up to be arrested every day for the better part of a year.

“Nowadays, on First Amendment grounds, it’s possible to picket embassies,” Kameny noted. “In those days, it was not.”

Kameny remembers the embassy demonstration resulting in his arrest, but it was something of a formality: “I don’t think I spent any time in jail.”

A bit of historical irony is wrapped up in that last memory, since South Africa's constitution guarantees equal rights for its gay and lesbian citizens, and it is the only African country that permits same-sex couples to wed.

With regard to his numerous arrests, Kameny smiled, “I consider them all honorable.”

Publisher's note: This article is drawn from my Examiner.com archives. It was originally published on Examiner.com on December 31, 2010. The Examiner.com publishing platform was discontinued July 1, 2016, and its web site went dark on or about July 10, 2016.  I am republishing this piece in an effort to preserve it and all my other contributions to Examiner.com since April 6, 2010. It is reposted here without most of the internal links that were in the original.

From the Archives: Gay-rights pioneer Franklin Kameny remembers his civil disobedience – Part I

Gay-rights pioneer Franklin Kameny remembers his civil disobedience – Part I
December 31, 2010 1:48 AM MST

Dr. Franklin Kameny is one of the pioneers of the modern gay-rights movement.

In the mid-1960s, he and other pre-Stonewall activists organized the first pickets of the White House to demand equal treatment under the law for gay men and lesbians (then known as “sex perverts” or, more kindly, “homosexuals”). He also arranged protests at Independence Hall in Philadelphia, at the Pentagon, and at other public places at a time in which openly gay individuals were exceedingly rare and even more rarely political active.

Fired for being gay

Earlier this year, Kameny sat down with the Charlottesville Libertarian Examiner to recall several incidents of civil disobedience in his lifetime. A veteran of World War II, now 85 years old and still involved in gay-rights issues, Kameny recounted how being fired by the federal government for being gay led directly to his career as an activist.

A Harvard-trained astronomer, Kameny was sacked by the Army mapping agency in 1957. “The next two years or so were very difficult,” he remembered. “There was a period of eight months in ’59 when I was living on 20 cents of food a day, which even at ’59 prices was not much.”

Much of Kameny's story from those years, along with those of others in similar straits, is told by historian David K. Johnson in his book, The Lavender Scare: The Cold War Persecution of Gays and Lesbians in the Federal Government.

Physicist by day, activist by night

“My bachelor’s degree is in physics. My master’s and Ph.D., as you probably know, [are] in astronomy. I got a series of jobs over the next decade, three or four of them, in that” field, he said, but “because of Eisenhower’s 1953 executive order 10450,” which was finally reversed by Bill Clinton more than 40 years later, “I was unable to get a security clearance which meant that I had a number of edgy jobs, [with] companies that went out from under me.”

While all this was happening – sporadic employment, lack of stability – “I began to get increasingly involved, starting in ’61, with the gay movement of the time.”

Through most of the 1960s, Kameny explained, “speaking figuratively, I was a physicist from nine in the morning until five in the afternoon on weekdays, and I was a gay activist in the evenings and on weekends. But the activism gradually took over things.”

That is how the astronomer-turned-activist found himself, on several occasions, in the back of a paddy wagon – which will be recounted in Part II of this interview.

Publisher's note: This article is drawn from my Examiner.com archives. It was originally published on Examiner.com on December 31, 2010. The Examiner.com publishing platform was discontinued July 1, 2016, and its web site went dark on or about July 10, 2016.  I am republishing this piece in an effort to preserve it and all my other contributions to Examiner.com since April 6, 2010. It is reposted here without most of the internal links that were in the original.

Guest Post: Forgotten origins of the modern gay rights movement in World War I

Laurie Marhoefer, University of Washington

One of the World War I’s most enduring legacies is largely forgotten: It sparked the modern gay rights movement.

Gay soldiers who survived the bloodletting returned home convinced their governments owed them something – full citizenship. Especially in Germany, where gay rights already had a tenuous footing, they formed new organizations to advocate in public for their rights.

Though the movement that called itself “homosexual emancipation” began in the 19th century, my research and that of historian Jason Crouthamel shows that the war turned the 19th-century movement into gay rights as we know it today.

A death in Russia

In the winter of 1915, a German soldier died in a field hospital in Russia. The soldier, whose name is missing from the historical record, had been hit in the lower body by shrapnel when his trench came under bombardment. Four of his comrades risked their lives to carry him to the rear. There, he lay for weeks, wracked by pain in the mangled leg and desperately thirsty. But what troubled him most was loneliness. He sent letters to his boyfriend whenever he could manage it.

“I crave a decent mouthful of fresh water, of which there isn’t any here,” he wrote in his final letter. “There is absolutely nothing to read; please, do send newspapers. But above all, write very soon.”

German infantrymen aim machine guns from a trench near the Vistula River in 1916.
AP-Photo

This soldier, who had to keep his relationship hidden from those around him, was just one of the approximately two million German men killed in World War I. His suffering is not unlike what many others experienced. What his loved ones made of that suffering, however, was different, and had enormous consequences.

His boyfriend, identified in surviving documents only as “S.,” watched the man he loved go off to serve in a war that he did not fully endorse, only to die alone and in pain as S. sat helplessly by hundreds of miles away. S. told their story in a letter to the Scientific Humanitarian Committee, which published it in April 1916.

The Scientific Humanitarian Committee was then the world’s leading homosexual emancipation group, boasting a membership of about 100 people. The soldier’s story took a cruel twist at its very end: S.‘s loving replies were lost in the chaos of the war and never reached the soldier.

“He died without any contact from me,” S. wrote.

Demanding the rights of citizens

After the war, many believed the slaughter had been for nothing. But S. saw a lesson in his partner’s suffering and death.

“He has lost his bright life … for the Fatherland,” wrote S. That Fatherland had a law on the books that banned sex between men. But the sodomy law was just the tip of the iceberg: S. and men like him generally could not reveal their love relationships in public, or even to family members. Homosexuality meant the loss of one’s job, social ostracism, the risk of blackmail and perhaps criminal prosecution.

S. called it “deplorable” that “good citizens,” soldiers willing to die for their country, had to endure the status of “pariahs.” “People who are by nature orientated toward the same sex … do their duty,” he wrote. “It is finally time that the state treated them like they treat the state.”

A new phase of gay rights

A magazine put out by the League for Human Rights in 1930.
Author provided

Many veterans agreed with S. When the war ended, they took action. They formed new, larger groups, including one called the League for Human Rights that drew 100,000 members.

In addition, as I argue in my book, the rhetoric of gay rights changed. The prewar movement had focused on using science to prove that homosexuality was natural. But people like S., people who had made tremendous sacrifices in the name of citizenship, now insisted that their government had an obligation to them regardless of what biology might say about their sexuality.

They left science behind. They went directly to a set of demands that characterizes gay rights to this day – that gay people are upstanding citizens and deserve to have their rights respected. “The state must recognize the full citizenship rights of inverts,” or homosexuals, an activist wrote in the year after the war. He demanded not just the repeal of the sodomy law, but the opening of government jobs to known homosexuals – a radical idea at the time, and one that would remain far out of reach for many decades.

Respectable citizens

Ideas of citizenship led activists to emphasize what historians call “respectability.” Respectability consisted of one’s prestige as a correctly behaving, middle-class person, in contrast to supposedly disreputable people such as prostitutes. Throughout the 20th century, gay rights groups struggled for the right to serve openly in the military, a hallmark of respectability. With some exceptions, they shied away from radical calls to utterly remake society’s rules about sex and gender. They instead emphasized what good citizens they were.

In 1929, a speaker for the League for Human Rights told an audience at a dance hall, “we do not ask for equal rights, we demand equal rights!” It was, ironically, the ghastly violence and horrible human toll of the World War I that first inspired such assertive calls, calls that characterized gay rights movements around the world in the 20th century.

It would take nearly a century for these activists to achieve one of their central goals – the repeal of sodomy laws. Germany enjoyed a 14-year period of democracy after World War I, but the Nazis came to power in 1933 and used the sodomy law to murder thousands of men. A version of the law remained in force until the 1990s. The United States struck down its sodomy laws only in 2003.

Laurie Marhoefer, Assistant Professor of History, University of Washington

This article was originally published on The Conversation. Read the original article.

From the Archives: Obama’s announcement prompts question, Is gay marriage a ‘new right’?

Obama’s announcement prompts question, Is gay marriage a ‘new right’?
May 9, 2012 4:02 PM MST

With President Barack Obama’s surprise announcement today that he supports the rights of gay and lesbian couples to legally wed, political pundits are debating whether this was a calculated move designed to help the president’s re-election bid, or whether it will help presumptive Republican nominee Mitt Romney, instead.

Obama’s statement came on the heels of North Carolina voters decisively adding a constitutional amendment to prohibit same-sex marriage and civil unions in that state. The president said, perhaps with that news in mind, that he thinks legalizing gay marriage should be decided on a state-by-state basis, without intervention from the federal government – or, presumably, through judicial decisions by the courts.

Some opponents of same-sex marriage assert that the Founders, in drawing up the Constitution, did not intend its protections to include gay individuals who wish to marry each other.

‘Life, liberty, or property’

Since the Fourteenth Amendment is usually cited by those who believe the Constitution does, in fact, protect a right to same-sex marriage (“nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws”), opponents of gay marriage argue that the post-Civil War amendments were intended only to extend constitutional protections on the basis of race and that their authors would not have also extended those protections on the basis of sexual orientation.

To be fair, there are also people who favor extending equal marriage rights to all citizens but who argue that this should be done legislatively, because, they say, courts should not be creating new rights not present in the language of the Constitution or the minds of its authors.

Since the “new rights” meme is so common, it may be useful to consult a different analogy (unrelated to race) to reveal why this objection is logically flawed.

The argument of the opponents of same-sex marriage is that it is an entirely new concept and therefore courts should not extend the right of marriage to gay people.

‘Not a new concept’
Yet “marriage” is not a new concept, and it may be engaged in legally by most, but not all, people who desire opposite-sex marriages.

In every state except Mississippi and Nebraska, any adult from the age of 18 may wed another person without parental permission. (In Mississippi, the legal age to freely marry is 21; in Nebraska, it is 19.) In many of the states, the marriageable age was once 21 but has been changed to 18.

In all these states, the legal age of majority is 18 – people who have reached that age can enter into contracts, buy and sell goods and services, own a home, join the military, pay taxes, vote in elections and – in some cases – serve in elective public office, including the state legislature.

If someone in Mississippi sued for the right to marry at the age of 18 or 19, it would not be unreasonable for a court to rule that the current prohibition on marriage there before the age of 21 is unconstitutional, because it deprives that person of a liberty (to marry) guaranteed by the Fourteenth Amendment.

Nobody would argue that that court was creating a “new,” previously non-existent right. It would simply be expanding the pool of otherwise eligible adult citizens who can enjoy that right.

That is because, for virtually every other person in the country older than 18 years of age, marriage is legal and available to them.

‘Extending a right’
The point is that judges who recognize the right of gay couples to marry are not creating a “new right.” Rather, they are extending a right that is already recognized for all other adults.

“Marriage” is legal for all adults, except those who are gay or lesbian. To recognize that being gay or lesbian is no impediment to marriage is no more creating a “new right” than to say that 18-year-old adult citizens of Mississippi should be able to marry today rather than wait three years.

There may be compelling arguments, on policy grounds, to continue to prohibit gay marriage. Seven states, the District of Columbia, Canada, several European countries, and South Africa (among other governments) have rejected those arguments, if they exist.

But one argument that does not stand up to scrutiny is that same-sex marriage is a “judge-created right.” With President Obama’s return to a position he first held in 1996, the political debate over the rights of gay citizens to marry takes a new direction.


Publisher's note: This article is part of a series to mark June as Gay Pride Month. It was originally published on Examiner.com on May 9, 2012. The Examiner.com publishing platform was discontinued July 1, 2016, and its web site went dark on or about July 10, 2016.  I am republishing this piece in an effort to preserve it and all my other contributions to Examiner.com since April 6, 2010. It is reposted here without most of the internal links that were in the original.

From the Archives: Author Brian Doherty explains Ron Paul’s ambivalence on gay issues

Publisher's note: This article is part of a series to mark June as Gay Pride Month. It was originally published on Examiner.com on May 18, 2012. The Examiner.com publishing platform was discontinued July 1, 2016, and its web site went dark on or about July 10, 2016.  I am republishing this piece in an effort to preserve it and all my other contributions to Examiner.com since April 6, 2010. It is reposted here without most of the internal links that were in the original.

Author Brian Doherty explains Ron Paul’s ambivalence on gay issues
May 18, 2012 10:13 PM MST

Republican presidential candidate Ron Paul has a record on gay-rights issues that can best be described as mixed.

For instance, Dr. Paul was one of only four Republicans in the House of Representatives to vote in favor of repealing the ban on openly gay personnel in the armed forces known as “Don’t Ask Don’t Tell.”

Paul also opposes a federal constitutional amendment that would prohibit same-sex marriage across the United States, yet he is the sponsor of legislation that would remove from federal courts the jurisdiction to hear and rule upon challenges to laws that ban gay marriage.


‘Voluntary and consensual agreements’
In his 2011 book, Liberty Defined, Paul suggests there should be a separation of marriage and state, just like there is separation of church and state.

In his chapter on marriage, he argues that “[if] the government was not involved, there would be no discussion or controversy over the definition of marriage. Why should the government give permission to two individuals for them to call themselves married? In a free society, something that we do not truly enjoy, all voluntary and consensual agreements would be recognized. If disputes arose, the courts could be involved as in any other civil dispute.”

This reference to the courts as protectors of contracts seems to be at odds with the bill he introduced to take marriage laws out of the jurisdiction of the federal courts.


‘One man and one woman’

While Paul seems to be tepidly endorsing the idea that same-sex couples could wed, he has said on several occasions that he thinks marriage should be limited to one man and one woman.

While campaigning in Iowa earlier this year, he said that he believes “that marriage is between one man and one woman and must be protected. I supported the Defense of Marriage Act, which used Congress’ constitutional authority to define what other states have to recognize under the Full Faith and Credit Clause to ensure that no state would be forced to recognize a same sex marriage license issued in another state.”

Journalist Brian Doherty has covered Ron Paul since 1999. He is the author of a new book, Ron Paul's rEVOLution: The Man and the Movement He Inspired. After a panel discussion about his book this week at the Cato Institute, the Charlottesville Libertarian Examiner asked Doherty about what appears to be Ron Paul’s “uncharacteristically studied ambivalence” about gay rights issues, particularly with regard to marriage equality.

Something ‘weird’
Paying a compliment to his interviewer, Doherty replied that “It is likely that you know every twist and turn of his thoughts on this issue better than me,” but he did go on to offer a partial explanation for Paul’s positions.

“I remember where he’s come to at this point, where I think he reliably will give the ‘get government out of marriage entirely’ answer, but I know his history with things like DOMA is more complicated than that. I’ve honestly forgotten every twist and turn of it.”

At bottom, Doherty explained, Paul’s inconsistent positions on gay rights issues can be explained by the fact that “he’s a 77-year-old American man who’s lived in Texas. There probably is a personally rooted, religiously rooted sense” – and here Doherty spoke sotto voce – “that there’s something a little ‘weird’ about homosexuality that maybe he’s not entirely comfortable with.”

‘Bruno-esque’
At the same time, Doherty noted, “I’m pretty sure both from watching him and knowing some of his associates, that that doesn’t come out in person, except possibly in a Bruno-esque situation” -- referring to a bizarre episode in the 2009 film Bruno in which actor Sacha Baron Cohen makes a pass at Ron Paul in a dimly-lit hotel room – “which I think is understandable.”

But, Doherty added, “circumstances and time had to probably open his mind a little on that question and I don’t personally fault him for it too much.”

In the end, he said, the answer to the gay-rights question that Ron Paul has come to embrace “seems to me about the correct libertarian-qua-libertarian answer.”

Complete audio of this interview with Brian Doherty can be heard as a podcast through Bearing Drift.

Additional excerpts from this interview focus on a post-Ron Paul political future and the decentralized nature of the Ron Paul phenomenon.

From the Archives: World War II veteran Franklin Kameny remembers his experience with 'don't ask, don't tell'

World War II veteran Franklin Kameny remembers his experience with 'don't ask, don't tell'
May 30, 2010 2:49 PM MST

The confluence of the vote in the House of Representatives to repeal the law known colloquially as “Don’t Ask, Don’t Tell” (DADT) and Memorial Day weekend may not seem to be much more than a coincidence.

For many people, especially those born in the last decade of the 20th century, the idea of ending the ban on openly gay and lesbian Americans serving in the armed forces may seem to be a new one. Even older Americans may not have become aware of the issue any earlier than 1993, when Bill Clinton tried to end the ban but ended up signing the law that made it permanent.

The fact is, not only the ban but attempts to end it go back much farther than the early 1990s.

On May 5, the Charlottesville Libertarian Examiner interviewed Franklin Kameny, one of the pioneers of the modern gay rights movement, at the National Press Club in Washington.

Kameny, who celebrated his 85th birthday on May 21, cautioned, first, that we must “keep in mind” that the gay ban “became statutory law in ’93 [but] has been military policy for very, very, very much longer than that. You can arguably bring it all the way back to 1778 and George Washington.”

‘They Asked; I Didn’t Tell’
Kameny encountered the gay ban for the first time during World War II, when he enlisted in the U.S. Army.

“I personally ran into [the ban] on May 18, 1943, when a few days before my 18th birthday, I enlisted in the Army at the height of World War II,” Kameny said. “They asked; I didn’t tell, even though as a healthy, vigorous teenager there were things to tell. (Not terribly much, it was a different era in all kinds of ways.)”

Kameny added: “I have resented for 67 years that I had to lie in order to serve in a war effort that I strongly supported. I did serve and I saw combat in Europe.”

In 1957, Kameny – a Harvard-educated physicist and astronomer – was fired from his job with the Army Mapping Service because he was gay. He spent the next several decades in temporary jobs because he was unable to get a security clearance to do what he was trained to do. In fact, he said, there were some months when had only 20 cents to spend per day on food. (The story of Kameny's life during this period is told well by historian David K. Johnson in his 2004 book, The Lavender Scare: The Cold War Persecution of Gays and Lesbians in the Federal Government.)

Marching on the Pentagon
By 1961, however, he began to get involved in the then-fledgling gay rights movement. One of the first issues he and his colleagues tackled was the military gay ban.

“We picketed against it starting in ’65 both in front of the White House and at the Pentagon, and at the Pentagon again in ’66,” demonstrating, he said, “specifically against the exclusionary policy.”

Congressional Campaign
The issue also came up in 1971, when Kameny was the first openly gay person to run for a seat in the U.S. House of Representatives. (He ran for position of Delegate from the District of Columbia, a slot now filled by Eleanor Holmes Norton.)

“In the course of all that, I was campaigning on two different fronts,” Kameny explained. “One was purely on District issues; if you’re going to run for Congress in the District [of Columbia] you have to be an expert on trash collection and everything else.

“But also,” he continued, he was running “as a gay activist,” so that in the later part of the campaign, he held “a press conference in or near the office of the Secretary of the Army, and I met with him or somebody in his staff ... in connection with the gay ban.”

Two decades later, “in ’93, it became law, which completely changed the politics entirely.”

That politics will play out this summer when the U.S. Senate takes up the issue and will decide whether to follow the course set by the House or to let the gay ban linger for another year or longer.



Publisher's note: Today is the traditional date of Memorial Day, as it began in the years after the Civil War and was commemorated until the late 1960s, when it was moved to the last Monday in May.

This article is drawn from my Examiner.com archives. It was originally published on Examiner.com on May 30, 2010. The Examiner.com publishing platform was discontinued July 1, 2016, and its web site went dark on or about July 10, 2016.  I am republishing this piece in an effort to preserve it and all my other contributions to Examiner.com since April 6, 2010. It is reposted here without most of the internal links that were in the original.