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: LP gubernatorial hopeful Robert Sarvis aims for marriage equality in Virginia

LP gubernatorial hopeful Robert Sarvis aims for marriage equality in Virginia
June 25, 2013 11:51 PM MST

On the eve of the U.S. Supreme Court's historic rulings in two gay marriage cases -- Hollingsworth v. Perry, which addresses the Proposition 8 marriage ban in California, and United States v. Windsor, which challenges the federal Defense of Marriage Act -- one Virginia candidate has released a campaign video declaring his intention to "lead the fight now—in this election—to recognize same-sex marriages in Virginia."

Libertarian nominee for Virginia governor Robert Sarvis announced his position on his campaign web site on June 25.

While Democratic gubernatorial candidate Terry McAuliffe has said he supports marriage equality, he has also said that repeal of the state's constitutional prohibition of same-sex marriage "would not be among his legislative priorities."

According to the Washington Post, McAuliffe said:

“If you look at the composure of the legislature, it’s not an issue that I’m going to spend my time focusing on. It’s not going to change during my four years as governor.”

For his part, Republican gubernatorial nominee Ken Cuccinelli, in his role as Virginia's Attorney General, submitted a brief to the Supreme Court in the Hollingsworth (Prop 8) case arguing that “there is no coherent reason for government to recognize same-sex marriages.”

Libertarian contrast

In contrast to the Republican and Democratic candidates for governor, the LP's Sarvis declared this week that he will make marriage equality a priority in his administration.

Sarvis, whose own marriage is mixed-race, noted that it was a Virginia couple, Richard and Mildred Loving, who took the fight to end the state's ban on interracial marriage to the U.S. Supreme Court, and won.

"We all know the slogan, 'Virginia is for lovers,'" he says in the 48-second campaign video, "but today Virginia still isn't for all lovers."

For that reason, Sarvis explains, "I want to honor the Loving legacy and lead the fight now, in this election, to recognize same-sex marriage in Virginia."

Notably, as early as 1996, the Libertarian Party platform "urged the abolition of laws banning same-sex marriage."

The Sarvis campaign's video addressing marriage equality can be viewed on YouTube and also on the campaign's web site.


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 25, 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: 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: Attorneys Ted Olson, David Boies discuss Proposition 8 and gay marriage at Cato

Publisher's note: This article was originally published on Examiner.com on May 18, 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.

Attorneys Ted Olson, David Boies discuss Proposition 8 and gay marriage at Cato
May 18, 2011 2:40 PM MST

Two veteran Supreme Court litigators – former U.S. Solicitor General Theodore Olson and David Boies (twice named Lawyer of the Year by the National Law Journal) – spoke at the Cato Institute on May 18. Their topic was not the National Football League’s labor dispute, in which they are each representing opposing sides, but rather a case on which they serve on the same team.

In May 2009, Olson and Boies – who had earlier represented opposite sides in the U.S. Supreme Court’s 2000 presidential election case, Bush v. Gore – together filed suit in the state of California to challenge Proposition 8, a ballot measure from the previous November that prohibited same-sex marriage in that state. In August 2010, federal district judge Vaughn Walker ruled that Prop 8 was unconstitutional; its proponents have appealed the decision.

Observers immediately dubbed the two lawyers an “odd couple,” since it seemed unlikely, on its face, that a conservative Republican like Olson (who had served in the administrations of Ronald Reagan and George W. Bush) would join forces with a Democrat like Boies (who represented Al Gore and worked for the late Senator Edward Kennedy on Capitol Hill) to uphold the rights of gay and lesbian individuals to marry.


‘History of discrimination’

It became clear during the panel discussion at the Cato Institute that both Olson and Boies are equally passionate about this issue. Olson noted that the “history of discrimination [against gay people] is quite unpleasant to reflect on,” and that denying individuals the right to marry on the basis of sexual orientation is akin to granting a person all the rights and responsibilities of citizenship but, by dint of his nationality, denying him the right to call himself a citizen.

Ted Olson

He pointed out that in the pre-Civil War slave era, slaves were prohibited from marrying because marriage would be a symbol of their independence, and that when emancipation came, slaves rushed to be married because it was a way of asserting their new freedom.

Similarly, Boies asserted that “we all have an interest in protecting individual rights against government discrimination.” He pointed out that his clients and the proponents of Prop 8 both agree that marriage is a fundamental right that has been confirmed 14 times by the U.S. Supreme Court.

Boies said that depriving gay and lesbian citizens of the right to marry seriously harms them and the children they are raising. And, he pointed out, there is no benefit to other people from depriving gay men and lesbians of the right to marry.

After the panel discussion – which also included comments from former White House chief of staff John Podesta and Cato Institute chairman Robert Levy – Ted Olson spoke briefly with the Charlottesville Libertarian Examiner about the case, which was originally designated Perry v. Schwarzenegger but is now called Perry v. Brown because of the change in governors in California.


Overwhelming evidence

With regard to the prospects for the case, which is now stalled in the Ninth Circuit Court of Appeals while some peripheral matters are being litigated, Olson said, “We hope that we’ll get ultimately to the Supreme Court and have the Supreme Court affirm the rights of gay and lesbian individuals to be treated equally and with decency and dignity, not just in the state of California but everywhere else. The badge of discrimination that’s engraved in the California constitution has to be eliminated.”

He added that the most surprising thing he encountered during the trial was the power of his team’s case.

“We were overwhelmed by the strength of our own case,” Olson said.

“Just to listen to the expert witnesses and to hear the evidence was overwhelming,” he explained. “We had strong convictions about our arguments but the fact that the evidence was so compelling beyond our expectations was very gratifying.”

Boies and Olson predicted that a ruling from the Ninth Circuit will come late this year or in early 2012, and that if the U.S. Supreme Court chooses to hear a further appeal, the high court’s decision is not likely for at least two years.

From the Archives: Author Charles Murray argues same-sex marriage is ‘not a big deal’

Publisher's note: This article was originally published on Examiner.com on February 22, 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 Charles Murray argues same-sex marriage is ‘not a big deal’
February 22, 2012 8:15 PM MST

Appearing February 22 on “The Schilling Show,” a Charlottesville talk-radio program, conservative social scientist Charles Murray stated that the advocacy of gay marriage is “not a big deal” with regard to the general decline of marriage in American society. Murray also explained how his own attitude toward same-sex marriage has changed over time.

Murray, a scholar at the American Enterprise Institute in Washington is the author of What It Means to Be a Libertarian and the current release, Coming Apart: The State of White America, 1960-2010, which was the focus of the discussion with talk-show host Rob Schilling.


Collapse of an institution

In their on-air conversation, Murray noted that in 1960, for the age cohort from 30 to 49, the “white working class was married at well over 80 percent and the white upper-middle class was married at very high rates.” Fifty years later, however, among the white upper-middle class, “84 percent of those ages 30 to 49 are still married in 2010. In the white working class, that had dropped to 48 percent."

That, he said, is “essentially the collapse of a major social institution.”

Because married men and women are better able to participate in civil society – being Little League coaches, attending PTA meetings, running charity drives – Murray explained that “a breakdown of marriage” essentially becomes “a breakdown of community, and it’s focused on working class.”

Schilling asked Murray about the effect of the current debate over the definition of marriage, which differs from the cultural environment in 1960.

‘Not a big deal’

Murray replied that “the advent of the gay marriage movement and the rest of that, I’m inclined to think, is not a big deal.”

He pointed out that, “for one thing, a lot of the rhetoric surrounding the advocacy for gay marriage has been that here are people who want to make a solemn commitment to each other. Writers like Jonathan Rauch and others have made very compelling cases for [how] gays want to engage in this very important social institution.”

A person, he said, does not “have to agree with that to think that, in a way, the visibility of marriage has been raised by that movement, not necessarily denigrated.”

Calling in to “The Schilling Show,” the Charlottesville Libertarian Examiner posed a question to Murray about a recent appearance he made on the Charlie Rose television show. In that TV interview, Murray had said how his own opinion about same-sex marriage had changed.

Midway during the interview with Charlie Rose, he explained, the host asked him about that issue.


‘Loving, faithful relationships’

“I have never,” he said, “made a public statement about that before, but the fact is this: My wife and I have maybe half a dozen friends who are gay and are in couples. I mean they’re marriage-like situations. Some of them are guys and some of them are gals. In all of those cases, they’re acting like married people. They appear to have loving, faithful relationships that they take very seriously.”

More than that, he added, “a couple of them have kids that they are as attentive [to] and loving of as any other parents, and so I say to myself, I still have real problems with using the word marriage for anything except a union which has as its main purpose child-bearing and so forth.”

Still, he explained, “on the other hand, it’s really made me rethink the nature of my opposition, because let’s face it: Heterosexuals have made a mess out of marriage in the last couple of decades -- the last half-century, actually -- in ways which leave us in a weak position to suddenly say, ‘Oh, this wonderful institution that we’ve done so well with, you’re trying to interfere with.’”

As a result, Murray said, “I have backed off from leading the fight against gay marriage or even participating in it, and I’m willing to say that this is one instance in which [a new idea is] working out better than I would have expected it to, as I see it.”

Meanwhile, over on Examiner.com ...

The last few days have been busy ones for me in terms of posting articles as the Charlottesville Libertarian Examiner on Examiner.com.

I have two articles based on reactions to President Barack Obama's fifth State of the Union Address:

Virginia Republican Congressmen Respond to 2014 State of the Union Message

and

Gay groups comment on Obama's 2014 State of the Union address

On Monday, libertarian/anarchist activist Adam Kokesh was in Charlottesville to read excerpts from his forthcoming book and talk about his time incarcerated for civil disobedience in support of the Second Amendment. I interviewed him about some current issues and this is the result:

Podcaster Adam Kokesh talks about NSA spying, gay marriage, and Justin Bieber

Earlier, I posted three articles about Virginia political issues:

Legal ethicist Jack Marshall weighs in on Bob McDonnell 'Giftgate' scandal
Virginia Attorney General Mark Herring will challenge anti-gay marriage laws
Virginia political leaders react to Governor Bob McDonnell's federal indictment

Still earlier, I gathered some comments that expressed skepticism about President Obama's planned reforms of the NSA's extensive domestic spying operation:

Negative reactions to President Barack Obama's speech on NSA domestic spying

And finally, my last Examiner.com article of 2013 dealt with a professional interest of mine, Africa. This one was based on an interview with a libertarian Africanist -- not a phrase you're likely to hear very often.

Omidyar Network's Karol Boudreaux offers optimistic view of African economies

Keep checking back here to see when I link to new Examiner.com articles.

Senate Candidate E.W. Jackson Contradicts Himself

E.W. Jackson (r) with George Allen

U.S. Senate candidate E.W. Jackson, a charismatic clergyman and fiery orator who has caught the attention of Virginia's political class, is clear on where he stands on the issues.  There is no question about what he is for and what he is against.

One thing he is against is gay marriage.  Another thing he is against is appointing openly gay judges, according to a report today in a blog at the Washington Post web site.

But in inveighing against gay people, Jackson has found himself caught up in a contradiction.

Per Laura Vozzella's report in the Post:

“Private sexual behavior, unless it is against the law, should remain private,” Jackson said.

Jackson does not follow his own admonition, however.

A look at the biography he has posted on his campaign web site reveals this statement:

He and his wife have been married for forty years, have 3 children and have resided in Chesapeake for 13 years.

The photograph accompanying that biography clearly shows Jackson wearing a prominent wedding ring.

It looks to me that, when it comes to not displaying sexual behavior in public, Jackson can talk the talk but not walk the walk.

If Jackson, as a candidate for the U.S. Senate, can openly talk about his spouse, than so can candidates for judicial positions -- even gay candidates.

For my interviews with E.W. Jackson, look here and here.

Finally, note that if one follows the logic of Jackson's statement -- "Unless it is against the law, private sexual behavior should remain private" -- then illegal sexual behavior should be made public, not private.  That is a bizarre position for a clergyman to take.

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Is There a Place for Gay Conservatives ... Anywhere?

The Cato Institute today hosted an intriguing forum on the topic, "Is There a Place for Gay People in Conservatism and Conservative Politics?," which almost turned into a discussion of "Who is a conservative?" and, more specifically, whether one of the panelists had the right to call himself a conservative.

The opening remarks were given by Nick Herbert, MP, the British Conservative Party's Shadow Secretary of State for Environment, Food, and Rural Affairs, who was, he pointed out toward the end of the discussion, once identified in the caption of a newspaper photography as a "gay Eurosceptic."

Responses were provided by Andrew Sullivan, author of Virtually Normal and other books, who blogs for The Atlantic and whose conservative credentials were questioned more than once by both the moderator and members of the audience, and Maggie Gallagher, known best for her strident campaign against the rights of gay men and lesbians to marry and form families as president of a group with the Orwellian name, "National Organization for Marriage" (Orwellian because the group works actively against, not for, marriage).

The audience looked to be made up of mostly libertarians -- it was a Cato Institute event, after all -- and gay people.  I saw so many people I knew that, during the lunch that followed, I remarked to my friend Nigel Ashford of the Institute for Humane Studies that it "looked like one of [his] parties," which bring together libertarians and conservatives of all stripes.  The demographics of the audience became clear in their reactions to Maggie Gallagher, who pleaded over and over again that her anti-marriage activities were not meant to be an attack on gay people, a plea met with much skepticism.  (It's hard to judge whether the audience was more skeptical than she is naively self-deluded, or the other way around.)

Cato's executive vice president, David Boaz, opened the discussion by noting that "for the past 70 years or so, conservatives have opposed demands for equal rights from Jews, blacks, and gay people," only later -- once those folks eventually achieved equal treatment under the law --  to deny that they were ever against them in the first place, and then to "wonder why they don't get votes from those people."

Since blacks and Jews are no longer unwelcome by conservatives, Boaz pondered, will conservative attitudes "change once gay people have civil rights?"

In this question, he continued, British conservatives are ahead of us, and evidence of that included today's guest speaker, Nick Herbert, who was elected as an openly-gay Tory Member of Parliament in 2005 after he had led a successful campaign to keep Britain out of the Euro zone.  (A decision, Boaz wryly remarked, that must be looking better and better today.)

I will try not to repeat here much of what Herbert said in his formal remarks, since they are available in full on the Conservative Party web site (here for the news story, and here for the text of the speech).  Let me just excerpt his closing sentences and then go on to Sullivan's and Gallagher's responses:

So let us be clear about the kind of society we want to build.

One where a child can go to school without being bullied because of his or her sexuality.

Where people can be honest with their friends and families and employers, and not live a lie.

Where the terraces at football games do not ring with homophobic abuse.

Where a public declaration of lifelong commitment to another person can be made by anyone.

Where communities are safe and no-one is fearful because of who they are.

Where anyone can serve their country without being asked who it is they love.

Where no-one is held back and opportunity is available to all.

And where the Prime Minister of the UK or the President of the United States could just as easily be gay as black.

Andrew Sullivan began his remarks -- he spoke without notes, in a heartfelt and emotional manner -- by saying:

My breath is still taken away by Nick's speech. It feels like water in the desert. It feels like the truth.

The struggle for gay equality in this country has been difficult and emotional, Sullivan said, noting that the United States was ahead of the United Kingdom 20 years ago, though at that time gay conservatives were attacked by the gay left. "We were called 'homocons,'" he said, and "we were smeared."

Sullivan offered some distinctions between himself and Nick Herbert, placing himself "slightly to the right" and describing himself as a more of a Thatcherite than a "One Nation Tory." He noted, for example, that he is "an implacable foe of hate crime laws" because they are a threat to freedom of expression and freedom of thought.

He agreed, however, that there is no necessary connection between being gay and any particular set of political viewpoints. (This was a consensus among all three panelists.) Specifically, he said, "I see no connection between sexual orientation and a belief in limited government or a belief in a socialist state," adding that "I became a conservative because I grew up in a socialist country" and that he defined himself as a "Tory, not a Republican; an Oakeshottian, not a Straussian."

Sullivan went on to criticize the Republican party for accelerating its "campaign of fear" against gay people and said the GOP "is no longer a political party; it is a religious party [whose members] owe absolute obedience to the President." The Republican Party's "soul has been corrupted," Sullivan said solemnly.

Glancing over at Maggie Gallagher, Sullivan said that his arguments in favor of gay marriage -- which date to at least 1989, before the issue was on virtually anyone's radar screen -- "were never meant as an attack on the family." He spoke of the "psychic wound" that results from gay children growing up knowing that they would never be able to have the same kind of bonds as their parents or their brothers and sisters. This wound, he said, "distorts the psyche and warps the soul."

Sullivan did speak fondly and proudly of the way his own family -- his birth family and his in-laws -- participated in his and his husband's marriage ceremony, and how both of them have been accepted into each other's familial ambit, and how the joining of two families is an important social bond.

Summing up, Sullivan said, "We have struggled against the gay left and now the far Republican right, which is now the Republican party."

Introducing the next speaker, David Boaz quipped: "And now for something completely different," and that is indeed what we got in Maggie Gallagher's remarks.

She began by making the incredible, preposterous, and unsubstantiated claim that "there are openly gay people who work for my organization," the anti-gay National Organization for Marriage. She said she did not want to name them, however, and later -- when challenged by Sullivan -- she refused to name a single openly gay person who opposed equal marriage rights for gay men and lesbians. "You can't out an openly gay person," Sullivan said with exasperation during their later exchange.

Referring to Nick Herbert's opening description of how the political and legal landscape for gay people has changed in the United Kingdom, Gallagher said:

I don't know of many American conservatives who look at Great Britain and say "that is what we should look like."

In an acknowledgment of reality, Gallagher stated that "there have always been gay people in the conservative movement," and she noted that "a political movement is not a church, and there are no purity tests."

Yet, the question must be asked, she added: "How do we reconcile gay rights with large chunks of social conservatives" within the larger movement?

As she went on, Gallagher made an interesting distinction that, were she not so transparently unaware of what she was actually saying, would have been to her credit.

She said that "if gay rights are understood as liberty interests, they are compatible" with conservative values and the conservative movement. If they are understood as "equality interests," however, requiring aggressive government intervention to assure equality of results, they are not compatible.

What Gallagher misses, of course, is the fact that gay people should have the freedom to marry not just as a matter of equality, but as part of the liberty of association, the liberty of contract, the liberty to be left alone ... I could go on. Freedom to marry does not impinge on anyone else's rights -- no more than my right to watch Queer Eye for the Straight Guy does not affect someone else's right to watch Project Runway.

But I digress.

Gallagher added that "people are waking up to hear their core moral principles are the moral equivalent of racism" and, as a result, "people are scared."

She ended with a reiteration of her suggestion that "gay rights should be about liberty," and then Boaz opened up the floor for questions, first exercising his prerogative as moderator to pose one of his own.

Explaining that he had received "dozens" of emails making essentially the same point, Boaz asked Sullivan: "Can you be either a conservative or a classical liberal and still support President Obama's vast expansion of government?"

Miffed, Sullivan said "I refuse to answer that question as irrelevant to this topic... It's preposterous."

Since the full program may soon be available as a podcast, and is likely as well to be broadcast on C-SPAN, I will breeze through some of the next few exchanges.

There were questions about gay adoption and hate crime laws, then Jamie Kirchick of The New Republic asked, based on polling data that at least one-third of self-identified gay voters cast their ballots for McCain-Palin in 2008, should they fight for a place in the movement?

Sullivan replied: "I do not believe the conservative movement today has a place for a conservative like me."

The next question was posed by Jason Kuznicki, who has blogged about it himself earlier today:

There’s a built-in liberalness to gay politics, if not necessarily to gay people. Even conservative gay politics, in this sense, is liberal. Because all we have is the future. It’s the future, or nothing.

That “nothing” was on full display this afternoon, when I got to ask Maggie Gallagher the question I’ve always wanted to ask her: What do you think that am I supposed to do with my life?

Suppose I found myself in agreement with her. Suppose I concluded that same-sex marriage was corrosive to society. Do I leave my husband? Do I send my adopted daughter back to the state? Enter ex-gay therapy, which isn’t likely to work? Tell my whole family that I’m single now, and that Scott shouldn’t be welcome at family events? Live my whole life alone, and loveless? Hide? Where is the life I’m supposed to live?

I probably wasn’t so articulate at the Cato event, but I do recall Gallagher’s very simple answer: “I don’t know.”

The final question was about whether there is room for transgendered people in the conservative movement -- the "T" in "LGBT" or "GLBT" -- to which Gallagher replied, yes, as long as they are against gay marriage, and to which Sullivan replied, no, because conservatives think of transgendered individuals as engaging in "self-mutilation."

Nick Herbert was given the chance to offer a few closing words, replying to the last question by saying, "yes, the same principles apply" to transgendered people as to gay and lesbian people.

Herbert said "I look forward to the day when we're not having this debate but rather [having one] about the larger issues forced on Andrew" (I think he means issues like the definition of conservative, the proper role of government, the proper size and scope of government, etc.).  The issues before the panel today, he said, "should be beyond debate," adding that what people say about ourselves as political parties and as politicians, and the manner in which we can push people way casually is important.  What is most important, however, is that "we need to mount an appeal that is generous and optimistic and inclusive."

(I will be adding photographs from the event later tonight; I'm not at my own computer and this one lacks a port for my camera's memory card.)

Update:  Photos from above and left to right:  (1) Andrew Sullivan, David Boaz, Nick Herbert; (2) David Boaz, Andrew Sullivan, Nick Herbert; (3) Maggie Gallagher; and (4) Nick Herbert, MP.



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Review of 'The Color Purple'

Here is my review of The Color Purple, now playing in the Kennedy Center's Opera House, prepared for publication in The Metro Herald.

The Color Purple: Flawed but Inspiring
Musical Adaptation of Award-Winning Novel Now at Kennedy Center
Rick Sincere
Metro Herald Entertainment Editor

Adapting a controversial, popular, epistolary novel to the stage is a delicate task, one with as many pitfalls as it has possibilities. The task is made even more difficult when it requires the translation of an intensely personal, introspective journey to the more gregarious needs of the musical play, with its attendant melody, dance, and spirited rhyme schemes.

The task was just as delicate for Steven Spielberg when he adapted Alice Walker’s Pulitzer Prize-winning The Color Purple for the screen, which provides a much wider palette for a story that sprawls from the Mississippi Delta to West Africa and across nearly a half-century of time. Spielberg’s effort was rewarded with eleven Oscar® nominations and it catapulted Whoopi Goldberg to stardom.

The musical stage adaptation of The Color Purple, although it received eleven Tony Award® nominations (winning one category), is a noble attempt that ultimately fails to satisfy.

Now playing to capacity audiences at the Kennedy Center Opera House, the production’s strongest claims to success are in its design elements: sets (by John Lee Beatty), lighting (by Brian McDevitt), and especially costumes. Costume designer Paul Tazewell’s creations are almost the only way audiences can follow the chronology of the piece: as fashions change, we know that time goes by in a story that begins before the First World War and ends after World War II. Tazewell’s costumes also signify poverty and wealth, glamour and mundanity – facets that define the characters almost as well as their words and actions do.

As for the characters themselves, several performances stand out, not least of which is American Idol winner Fantasia in the leading role of Celie. Not only must Celie age from 14 to 54 over the course of two hours, she must do so almost without a break: there is hardly a scene in The Color Purple in which Celie does not appear. As weak as the material is (more on that later), Fantasia carries it with aplomb and maturity beyond her years.

Also notable is Felicia P. Fields as Sofia (reprising her Tony-nominated role), whose self-assured character is brought low by the social establishment of the Jim Crow South only to be resurrected when her sister-in-struggle, Celie, asserts herself in Act II. Similarly, Angela Robinson as Shug Avery (the woman every man wants to be with and every woman wants to be, but whom Celie gets to be with) is sexy, sensual, strong, determined, and sharp-witted: a role model for anyone.

Book writer Marsha Norman has added a sort of Greek chorus in the Church Ladies (Doris, Darlene, and Jarene; respectively Kimberly Ann Harris, Virginia Ann Woodruff, and Lynette DuPree) whose gossipy nature, vulgar comments, cutting remarks, and ever-changing costumes nudge the play along lightheartedly when it otherwise might become bogged down in melancholy and hopelessness.

Another performance worth singling out is that of Stu James as Harpo, Celie’s stepson (and Sofia’s husband) who may be the only man in her orbit who displays a sense of humanity and decency.

The major problem with The Color Purple as a piece of musical theatre is its lack of musicality. The score – which seems to have been written by a committee – is bland, undistinguished, and unmemorable. (In a good musical, one finds oneself humming the tunes on the way out of the theatre. I found myself humming a tune from a different musical, one that bore some resemblance to a song in The Color Purple, but that was far superior.)

Unsurprisingly, given that the songwriting duties were divided up among three composer/lyricists – Brenda Russell, Allee Willis, and Stephen Bray – whose backgrounds are more in pop music than in musical theatre, the score is scattered all over the place. It is not grounded in time (or location) and it fails to deliver any integrated sensibility (such as, for instance, providing motifs that follow characters through the story and link their development).

There are problems, too, with Norman’s book, which turns Walker’s wrenching portrayal of misogyny and cruelty into an anodyne pabulum that condescends to the audience, as if a producer said to the playwright, “Tone down the beatings and the rapes; I don’t want tired businessmen to walk out during intermission.”

Moreover, Norman forsakes clarity in an effort to compress the story (and fit it into a reasonable running time, which even now is nearly three hours). For instance, in the climactic scene, which takes place during a picnic, Alice Walker tells us that the gathering is meant to celebrate the Fourth of July. The play does not, raising the question of why Celie is so non-chalant about attending a party put together by her cruel ex-husband. One line could have avoided that question.

Walker’s criticism of African patriarchy is completely missing from this adaptation. In its stead is a second act dream ballet that, were it not meant to be taken seriously, could easily be misinterpreted as bad-taste minstrelsy. Add to this the absence of any mention of the Great Depression, Prohibition, or World War II in a story that spans all those major periods, and you have to wonder what the writers were thinking.

The Color Purple is a flawed musical play. Nonetheless, it will continue to draw audiences, as it did for 910 performances on Broadway. The underlying story of one woman’s triumph over adversity and evil remains inspiring. If that is enough to satisfy the “tired businessman,” then nothing more need be said.

The Color Purple runs through August 9, 2009, at the Kennedy Center Opera House. Performances run Tuesday through Sunday evenings at 7:30 p.m. with matinee performances on Saturday and Sunday afternoons at 1:30 p.m. Tickets cost $25-$95 and may be purchased at the Kennedy Center Box Office or by calling Instant Charge at (202) 467-4600. Patrons living outside the Washington metropolitan area may dial toll-free at (800) 444-1324 or visit the Kennedy Center web site at www.kennedy-center.org. (NOTE: During the matinee performances on July 12, 19, and 26, and on August 1 and 2, and during the evening performance on July 31, the role of Celie will be played by Phyre Hawkins or Brandi Chavonne Massey.

Photo credit: Paul Kolnik. Production photos courtesy of the Kennedy Center.



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Odd Definition of 'Democratic'

In an article that purports to analyze the political situation in New Hampshire in the wake of the state legislature's approval of a bill that creates marriage equality for all the citizens of that state (and the governor's signature on that bill), National Review Online's Mark Hemingway makes this curious statement:

Of the recent states that have legalized same-sex marriage — Iowa, Maine, and New Hampshire — none has done so through democratic means...

Granted, Iowans now have marriage equality due to a decision by the least democratic branch, the state supreme court. Even so, Iowa supreme court justices are held accountable through retention elections held one year after their appointments, and they serve limited terms of eight years, rather than lifetime terms. So that judicial decision-making body is not entirely undemocratic.

In the cases of Maine and New Hampshire, however, the decision to open up marriage to consenting adults regardless of sexual orientation was made by what one might call the most democratic branches: the legislature and the governor.

Hemingway fails to mention the other states that have marriage equality. A same-sex marriage law was passed by the legislature in Vermont years after that state first created "civil unions" through the legislative process. In Massachusetts the state legislature deliberated over and ultimately rejected an effort to overturn the state supreme court's ruling that a prohibition on same-sex marriage violated the commonwealth's constitution. In Connecticut, the state legislature approved civil unions but the state supreme court ruled that this was discriminatory and that marriage must be available to all citizens regardless of gender.

I might add that both chambers of the California legislature approved a bill to provide marriage equality, but Governor Arnold Schwarzenegger vetoed it. California's domestic partnership law gives all the responsibilities and privileges of marriage to same-sex couples, except for the name "marriage."

Hemingway has an odd definition about what is "democratic." If lawmaking by elected legislative bodies is not democratic, then what is?

It may be that Hemingway thinks that this sort of legislative action is made through "republican" means and that "democratic" lawmaking is limited to voter-approved (if not voter-initiated) referenda.

If so, Hemingway's view of legislative legitimacy is sorely at odds with the views of the Founders. It may be time for him to read The Federalist Papers. His understanding of "democratic" lawmaking is also at odds with common parlance.

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Poster Girl for Opposite-Sex Marriage

Move aside, Britney Spears. An Indiana woman is now the best reason to ask: Why, exactly, are wedded gay couples a threat to the sanctity of marriage?

UPI reports that she has been married 23 times:

Linda Lou Taylor, 68, who holds a Guinness World Record as the most married woman in history, said two of her husbands turned out to be gay, two ended up homeless, a few cheated on her, one choked her and another padlocked the refrigerator shut, Gannett News Service reported Wednesday.

And the Indianapolis Star expands the story:

Now known as Mrs. Linda Wolfe, she is the most-married woman in history.

She is also the most-married person alive.

And she is alone.

Wolfe can't list her husbands in order. But she remembers things that matter.

The nicest was George Scott, her first and -- at seven years -- her longest marriage. He was 31 and fresh from a stint in the military. She was 16 and just out of eighth grade. "We used to sing that song, 'I'm only 15 and he's 21,'" Wolfe said. "But we'd go around saying, 'I'm only sixteen and he's thirty-one.'"

The best lover was Jack Gourley, who liked skinny dipping and impromptu trysts. She wed him three times.

The marriage to Fred Chadwick was the shortest: 36 hours. The love wasn't there.

The strangest exchange of vows took place at the Indiana Reformatory at Pendleton to a one-eyed inmate named Tom Stutzman, whom she said was wrongly convicted of rape.

Miss/Ms./Mrs. Taylor gives "serial monogamy" a new meaning -- more like "Fibonacci monogamy."

So again I ask: If Linda Lou Taylor can get married legally, why can't I?

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Virginia Appeals Court Says, Obey the Law

The Virginia Court of Appeals on Tuesday told lower courts that their job is to apply the law, not make it up as they go along, in a stern rebuke to activist judges.

According to Overlawyered.com:

Reversing a lower court, the Virginia Court of Appeals "ruled Tuesday that Virginia state courts had a constitutional obligation to defer to the rulings of Vermont courts in a child custody dispute involving two lesbian partners who had entered into a Vermont civil union." (Jurist, Nov. 28; opinion in PDF format). The ruling will come as no real surprise to those who've read previous posts in this space (Aug. 26, 2006; Dec. 16 and Aug. 15, 2004). Some social-conservative commentators had unwisely applauded the efforts of Liberty Counsel, a misnamed Religious Right litigation strike force, to help client Lisa Miller evade the jurisdiction of a Vermont court order ordering visitation rights to former partner Janet Jenkins.

Michael Hardy explains the ruling further in today's Richmond Times-Dispatch:

Lisa Miller-Jenkins, the mother impregnated by sperm from an anonymous donor, won her battle in a Virginia court to deny her former partner, Janet Miller-Jenkins, rights granted under Vermont law that recognized their civil union there in late 2000.

But the three-judge Virginia panel said yesterday that the federal Parental Kidnapping Prevention Act trumped the trial court's ruling on behalf of Lisa Miller-Jenkins.

In November 2003, Lisa Miller-Jenkins filed a complaint in a Vermont trial court to dissolve the civil union and determine visitation and other rights.

"By filing her complaint in Vermont, Lisa invoked the jurisdiction of the courts of Vermont and subjected herself and the child to that jurisdiction," Judge Jere M.H. Willis Jr. emphasized.

The court reversed the subsequent decision of a Frederick County judge giving Lisa Miller-Jenkins sole custody of the girl. The judge mistakenly relied, it argued, on Virginia's Marriage Affirmation Act, which voids same-sex unions.

"This case does not place before us the question whether Virginia recognizes the civil union entered into by the parties in Virginia," the court said. "Rather, the only question before us is whether, considering the [federal law], Virginia can deny full faith and credit to the orders of the Vermont court regarding custody and visitation. It cannot."

Here's the message for judges -- in Frederick County or elsewhere -- who want to legislate from the bench: Don't do it.