A User’s Guide To Free Expression And Bathroom Sanity

Written by Ryan T. Anderson, PhD.

Following the U.S. Supreme Court’s decision redefining marriage, LGBT activists shifted their focus to the “T” in LGBT and to eliminating any dissent on marriage. At the federal, state, and local levels, the cultural Left has proposed using government coercion—in the forms of fines, penalties, and regulation—to make all Americans accept a new orthodoxy on sexuality: Boys must be allowed unfettered access to girls’ bathrooms, locker rooms, and shower facilities; bakers must bake same-sex wedding cakes.

Meanwhile, big business and special interest lobbyists have denounced attempts to limit these initiatives. Republican governors such as Mike Pence of Indiana and Dennis Daugaard of South Dakota have caved to media hysterics and cultural cronyism. Pence watered down his state’s religious freedom law; Daugaard vetoed a bill that would have accommodated transgender students, but not allowed boys in girls’ bathrooms.

My recent book, “Truth Overruled: The Future of Marriage and Religious Freedom,” discusses these phenomena in detail. Here are the Cliff’s notes on four types of laws to keep an eye on.

1. Sexual Orientation and Gender Identity Laws

These laws have been used to penalize bakers, florists, photographers, and adoption agencies. There is no federal Sexual Orientation and Gender Identity (SOGI) law, and most states and cities don’t have them yet. But LGBT activists are pushing to pass them across the country.

The proposed Equality Act would add “sexual orientation” and “gender identity” to more or less every federal civil rights law that protects on the basis of race, expanding them beyond their current reach and explicitly reducing current religious liberty protections. If made law, the Equality Act would have government treat people who believe we are created male and female, and that male and female are created for each other, as if they were racists.

SOGI laws also force schools, businesses, restaurants, and other places open to the public to allow biological males who identify as women into the ladies’ restrooms. This tramples private property rights, which would say whoever owns the bathroom should be able to set the bathroom policies, be they sex-specific, unisex, or something else. Government shouldn’t force owners to grant unfettered bathroom access based on gender identity, regardless of the safety, privacy, or modesty concerns of owners, employees, and patrons.

Thankfully, citizens are pushing back. When the Houston city council voted to impose a municipal SOGI law, Houstonians organized and collected more than enough signatures to put the issue to a vote of the people. In November, 61 percent of voters resoundingly rejected it. And don’t let the media tell you it’s a city of bigots. Houstonians have elected Annise Parker, a lesbian, as mayor three times. But they drew the line at SOGI and won despite threats of boycotts and retaliation from big business (which proved empty).

Earlier this year a proposed sexual orientation bill died in the Indiana statehouse, partly because its supporters couldn’t stop fighting over the specifics. Gender identity wasn’t specifically included in the bill, SB 344, which made the LGBT lobby unhappy. Moreover, in a bid to broaden support, the bill’s authors tacked on limited religious exemptions as a “compromise.” The prospect of any religious exemptions upset many in the LGBT lobby. In their view, no one should be free to follow his beliefs about marriage in public life if it violates LGBT dogma.

SOGI laws increase cultural tensions, further empower an already powerful special-interest lobby, and impose unjustly on people of many different faiths. At the end of the day, they are both unnecessary and a threat to religious freedom.

2. Bathroom Privacy and Accommodation Laws

SOGI laws are the problem. But what are some of the solutions? One answer is to protect privacy at the bathroom and accommodate transgender students. But LGBT activists don’t like this at all.

Their official policy is that boys who identify as girls should have unfettered access to girls’ bathrooms, locker rooms, and shower facilities. Anything less than full access to the bathroom and locker room of their choice is, they say, a transphobic denial of civil rights and equality. This extreme position is out of step with the majority of Americans, and utterly inconsiderate of the concerns of the non-transgendered community.

Earlier this year South Dakota crafted an even-handed policy respectful of everyone’s interests. Unfortunately, the governor caved to special interest hysterics. The South Dakota bill would have prevented biological males who identify as girls from using girls’ private facilities in public schools, but it also would have required local school officials to make reasonable accommodations for such students, such as providing access to single-occupancy facilities. A win-win arrangement for everyone, it would have protected all students’ privacy and safety and created new accommodations for transgender students.

Ask yourself: Why do we have gender-specific locker rooms in the first place? It’s because of biology, not because of “gender identity.” Separate facilities reflect the fact that men and women have bodily differences; they are designed to protect privacy related to our bodies. So the South Dakota bill continued the bathroom policy America has always had, while also requiring local schools to find reasonable accommodations for transgender students.

But LGBT activists accused attacked the state of “transphobia.” And big businesses threatened boycotts. As the bill reached the governor’s desk, the head of the Human Rights Campaign warned that “history will not treat kindly those who support this discriminatory measure.”

The Obama administration also wants to be on the Left side of history here. It claims that a 1972 civil rights lawrequires schools to allow unfettered bathroom and locker room access based on “gender identity.” In 2014, the U.S. Education Department’s Office for Civil Rights announced that Title IX—the 1972 law protecting the equal rights of women and girls in education—now required schools to allow boys who identify as girls into the girls’ bathroom. This unilateral reinterpretation of federal law cannot stand.

The nation is primed for yet another clash in the culture war—this time over school bathroom policy. The South Dakota legislature gave the entire United States an example of how to defuse controversy and craft principled public policy that creates good outcomes for everyone. It should have been signed into law.

We now need leaders to show courage and do the right thing: to stand up to the special interests and protect the rights and interests of all children.

3. Religious Freedom Restoration Acts

Historically, Americans have protected religious freedom by requiring the government to meet a burden of proof before it acts to substantially burden the free exercise of religion. This was the test that the Supreme Court applied under the First Amendment—up until 1990. When the Court turned away from that test, Congress voted in 1993 to reinstate it by passing the Religious Freedom Restoration Act (RFRA).

Championed by the ACLU and liberal senators Chuck Schumer and Ted Kennedy, it passed with 97 Senate votes and a unanimous voice vote in the House. President Bill Clinton signed it into law. RFRA bars government from substantially burdening religious exercise unless it can show a compelling interest to do so and does it through the least restrictive means possible.

Twenty-one states have implemented similar laws, and 11 more have constitutional religious liberty protections that state courts have interpreted to provide a similar level of protection. These commonsense laws place the onus on the government to justify its actions in burdening the free exercise of religion.

Over the last 20 years, RFRA-style laws have balanced the fundamental right to religious liberty with compelling government interests. They have protected Native Americans’ freedom to wear headdresses with eagle feathers, Sikhs’ freedom to wear religious head coverings in court, Muslim prisoners’ freedom to grow short beards, and Jewish inmates’ rights to kosher meals.

The federal RFRA protects against federal government violations of religious liberty; state RFRAs protect against state violations. Yet when Indiana proposed a near identical state version of RFRA last year, all hell broke loose. Similar hysterics are now erupting in Georgia and West Virginia over their RFRA proposals.

4. First Amendment Defense Acts

RFRAs create balancing tests that judges use. They protect religious exercise generally, then leave it to judges to determine if government has a compelling interest being pursued in a narrowly tailored way that justifies burdening the religious exercise in any particular case. But experience shows that ideologically driven judges can and do get it wrong. In cases where the risk of neglect or even hostility to the law by judges or government is acute, we can and should single out particular actions for protection and say government may never burden them.

We need both broad protection and specific protections. So, in addition to RFRA, Congress has passed a variety of laws that protect pro-life conscience. In Roe v. Wade the Supreme Court invented a right to an abortion. But after Roe Congress made clear that government cannot require a pro-life doctor or nurse to perform an abortion—that they, too, had rights that required specific protections from hostile judges and bureaucrats.

Likewise, in the Obergefell decision, the Supreme Court redefined marriage throughout America by mandating that governmental entities treat same-sex relationships as marriages. The Supreme Court did not say that private schools, charities, businesses, or individuals must abandon their beliefs if they disagree, but some governments are acting as if it did.

Indeed, there is no justification to force these entities to violate their beliefs about marriage. As Justice Anthony Kennedy noted, traditional beliefs are held “in good faith by reasonable and sincere people here and throughout the world.” Americans who believe that marriage is the union of husband and wife should continue to be free to live and work according to their convictions.

Now, state and federal legislatures should make it clear that no private person or institution should be forced to recognize or help celebrate a same-sex marriage—that is, that they have a right to believe—and live out—what they’ve always believed about marriage: that it’s the union of husband and wife.

The federal First Amendment Defense Act (FADA), and various state bills modeled on it, is a measured, reasonable, commonsense policy. It would ensure that no government agency discriminates against individuals or institutions for following their convictions about marriage as a man-woman union. For example, a government could not revoke their tax-exempt status or deny them government grants, contracts, accreditation, or licenses because of their beliefs. The bill protects freedom and pluralism in the wake of social change—embodying the best of American values.

Protecting minority rights after major social change is also a hallmark of American tolerance and pluralism. Yet as Georgia moves to enact a FADA, big business and special interests are attacking it.

This is yet another example of cultural cronyism. Businesses in Georgia were always free to embrace gay marriage—to bake wedding cakes for gay marriages and make floral arrangements for same-sex nuptials—and many do. But now activists want the government to force everyone in Georgia to do it. They’re threatening boycotts, travel bans, and relocations of businesses if the government doesn’t do as they wish.

Big business—as represented by “individual corporate giants including Hilton Worldwide, Marriott and InterContinental Hotels Group,” the Metro Atlanta Chamber of Commerce, and the Georgia Hotel and Lodging Association—have all claimed the religious freedom bill would open the door to widespread discrimination.

But if every Hilton, Marriott, and InterContinental hotel in Georgia already hosts receptions for newlywed same-sex couples, why can’t Georgia protect the mom-and-pop bed-and-breakfast or local Knights of Columbus hall that has a different set of beliefs about marriage? This law doesn’t harm minority rights; it protects them in the aftermath of the Supreme Court’s redefinition of marriage.

The hypocrisy of big business lobbying against the law is astounding. They want to be free to operate in Georgia according to their values, but they don’t want small-business competitors to be free to operate according to theirs. If all of the major corporations are already in favor of gay marriage, then this religious freedom law poses no threat. It merely protects the rights of those who disagree.

What to Do Now

America is in a time of transition. Courts have redefined marriage, and beliefs about human sexuality are changing. During this time, it is critical to protect the right to disagree and the civil liberties of those who speak and act in accord with what Americans had always believed about marriage—that it is the union of husband and wife.

Good public policy is needed at the local, state, and federal levels to protect cherished American values. This means SOGI laws must be defeated. Bathroom privacy and accommodation laws should be enacted. And religious freedom should be protected—with RFRAs and FADAs.

These policies would help achieve civil peace amid disagreement, maintain pluralism, and protect the rights of all Americans, regardless of what faith they may practice.

Ryan T. Anderson, PhD, the William E. Simon senior research fellow in American Principles and Public Policy at The Heritage Foundation, is the author of “Truth Overruled: The Future of Marriage and Religious Freedom.”

This article was originally posted at TheFederalist.com

The Progressive ‘Super Story’ That Wasn’t

Media bias is less about slanted stories than about what’s covered – or not.

For example, when a Muslim extremist cut off a woman co-worker’s head in Oklahoma City in September 2014, there was minimal coverage. A year later, the media went crazy over a Muslim boy’s suspension in Texas for bringing a clock to school that authorities mistook for a bomb.

The first incident undermined the progressives’ theme of America’s evolution toward seamless “diversity.” The second reinforced the narrative of a racist, nativist America, so they went big. The same with shootings by police.

Or take November 3rd’s stunning, off-year conservative election victories. The media are spinning a tale of low turnout, vowing that 2016 will be different.

Missing is the subtext of many conservative wins, from Republican Matt Bevin’s upset victory in the Kentucky governor’s race to the GOP’s retention of the Virginia state Senate, to the defeat in Ohio of marijuana legalization and in Houston of a gay/transgender nondiscrimination ballot measure.

How about the ouster of the pro-sanctuary San Francisco sheriff? Pay no attention, folks. There’s nothing to see here.

The progressive media’s “super story” is always about how America is getting over its reactionary past and embracing redistributive economics, alternative lifestyles, multiculturalism, limitless immigration and gun control. Never mind that when citizens actually get a chance to vote, they tend to ignore the cultural elites’ instructions.

Events merit extensive coverage only if they go the progressive way. If you don’t hear much media chatter, that usually means the progressives lost. If you hear a lot, they’ve either won or are denouncing the outcome.

Any speed bumps on the way to the New Age of Equality are treated as outrageous anomalies, not rejections of leftist ideology. The New York Times, which is to progressives what Mao’s Little Red Book was to Chinese communists, was furious over the overwhelming, 2 to 1 vote of Houstonians against what opponents called the “bathroom bill.” The gender identity component, the critics said, would open women’s restrooms and locker rooms to males who think they are female.

Headlined, “In Houston, Hate Trumped Fairness,” the Times editorial began with this accusation: “Sometime in the near future, a transgender teenager in Texas will attempt suicide — and maybe succeed — because vilifying people for their gender identity remains politically acceptable in America.”

We need to pray that some poor, confused teen doesn’t take a cue from this reckless assertion. The Times editorialists seem positively eager for just such an incident so they can editorialize again about other people’s “hate.”

A subtext ignored by the media was that Houston Mayor Annise Parker had ordered a city attorney to subpoena the sermons, notes and e-mails of five pastors who had led opposition to the ordinance. The First Amendment? That’s for pornographers, not men of the cloth.

Speaking of totalitarianism, the Times editorial did find a bright spot in the U.S. Department of Education’s stunning order last week to an Illinois high school to allow a transgender boy, against parents’ wishes, to use the girls’ bathrooms and locker rooms – or lose federal funding.

Other than the Times’ loony editorial board, does anyone think America’s founders had this kind of thing in mind when they wrote the Constitution as a limited set of powers shared by the national and state governments? Sexual politics aside, this speaks volumes about the Obama Administration’s voracious appetite for abusing power.

Getting back to election coverage, suffice to say the real “super story” of American pushback against societal decline was either ignored, downplayed or recast as the work of misguided hicks who could have starred in President Obama’s 2008 crack about rural Pennsylvanians who “get bitter, they cling to guns or religion or antipathy to people who aren’t like them or anti-immigrant sentiment ….”

In Ohio, where pro-marijuana legalization forces spent $20 million and created a mascot named Buddie (a cartoon character based on a pot plant bud), Buckeye State voters burned down the proposed constitutional amendment, 64 to 36 percent. Proponents complained that the wording had confused the voters.

In Kentucky, Tea Party favorite Matt Bevin, who trailed Democrat Jack Conway in election eve polls by five points in the governor’s race, confounded not only the pundits but Establishment Republicans who darkly warned GOP candidates to stay away from social issues.

Bevin ignored them, and even visited jailed county clerk Kim Davis, who had refused to ignore Kentucky law and issue same-sex marriage licenses. Mr. Bevin’s ad campaign hammered Obamacare and tied his opponent to President Obama, who is as popular in coal country as a cave-in. But the religious liberty issue, as in Houston, was a major concern the media suppressed.

In Virginia, an anti-gun group founded by former New York Mayor Michael Bloomberg spent $700,000 in a failed attempt to gain an open Richmond area Senate seat. Incumbent conservatives such as Dick Black and Bob Marshall also defeated Democrats, preserving GOP control of the Senate.

Finally, even in San Francisco, voters fired pro-sanctuary Sheriff Ross Mirkarimi. The sheriff had a record of bungling, but he was best known as chief law enforcement officer in a city where an American woman, Kate Steinle, was gunned down by an illegal immigrant criminal who had been turned loose.

Across America, voters dealt the elites and the media some stinging losses.

But don’t expect them to alter the narrative. They’ll report some of the news, but only in a manner that advances the progressive “super story.”

This article was originally posted at Townhall.com.

We Can Absolutely Turn the Tide

For some time now I’ve been saying that gay activists will overplay their hand and that the bullying will backfire. I’ve also said that we can outlast the gay revolution and ultimately, by God’s grace, turn the moral tide in America.

Of course, to speak like that is to invite all kinds of scorn and ridicule, not to mention the ugliest death wishes you could imagine. How dare we not roll over and die!

But events from the last 10 days remind us that, even though the cultural battles promise to be long and difficult, many Americans are ready to push back.

To begin with, the significance of the election results from last Tuesday can hardly be overstated.

In Kentucky, while the liberal media mocked Kim Davis the people of her state stood with her, electing Matt Bevin as governor in a crushing and unexpected victory over Attorney General Jack Conway.

And make no mistake about it: This was a direct statement about religious freedoms and redefining marriage.

After all, it was Conway who rose to national fame last year when he refused to defend the state’s ban on same-sex ‘marriage,’ despite his oath of office, explaining to Time magazine that, “Once I reached the conclusion that the law was discriminatory, I could no longer defend it.”

I guess the people of Kentucky didn’t get the memo that the ship has sailed and the culture wars are over.

Then, in Houston, lesbian activist mayor Annise Parker suffered a stinging defeat when her “anti-discrimination” bill, which focused on LGBT “rights,” was crushed by the voters.

In the aftermath of the massive defeat – 62 to 38 percent – Parker was reduced to insulting those who voted against the bill, calling them “transphobes” and more.

So, the people of Houston, America’s fourth largest city, are a bunch of transphobes.

Or, perhaps the triumph of LGBT activism is not so inevitable and there are real issues that having nothing to do with “homophobia” and “transphobia”? And perhaps there’s something to the fact that some strongly conservative Republican presidential candidates are polling better than Hillary Clinton?

Perhaps this really is time for pushback?

And what should we make of the fact that the NFL has decided to bring the Super Bowl to Houston in 2017 despite the defeat of Parker’s bill, even though proponents of the bill had warned that Houston would lose the Super Bowl if the bill was defeated? Perhaps even the NFL, well-known for preaching LGBT “inclusion,” sees the bigger picture?

In the aftermath of the Houston defeat, there were also small signs of a breach between gay activism and transgender activism, as indicated by a petition launched on Change.org by “a group of gay/bisexual men and women who have come to the conclusion that the transgender community needs to be disassociated from the larger LGB community; in essence, we ask that organizations such as the Human Rights Campaign, GLAAD, Lambda Legal and media outlets such as The Advocate, Out, Huff Post Gay Voices, etc., stop representing the transgender community as we feel their ideology is not only completely different from that promoted by the LGB community (LGB is about sexual orientation, trans is about gender identity), but is ultimately regressive and actually hostile to the goals of women and gay men.”

The petition was named “Drop the T,” and it’s a reminder of the fact that transgender activists have often felt left out by mainstream gay activism, as reflected in headlines like “Why The Transgender Community Hates HRC” (2007) and “Even After All These Years, HRC Still Doesn’t Get It” (2013).

This too is noteworthy, reminding us that there are cracks in the foundations of LGBT unity that could become wider in the coming years.

There’s one more story from Houston which is of interest, providing yet another example of LGBT overreach, this time in a case involving two Christians who were fired from the daycare center at which they worked when they refused to call a little girl a boy.

The girl in question, just 6-years-old, is being raised by two gay male parents, and we can only wonder if that has something to do with the child’s gender confusion.

As explained to Breitbart Texas by one of the fired workers, Madeline Kirksey, “the problem was not so much with the transgender issue as it was with telling young children that the little girl was a boy when she was not, and with calling her ‘John’ (not the name given) when that was not her name.”

Kirskey also noted that, “sometimes the little girl refers to herself as a little boy, and sometimes she tells the other children to not call her a boy or to refer to her by her masculine name.”

This child is clearly confused and needs professional help.

Instead, rather than getting help for the child, two Christians have lost their jobs, and I cite this example to say again that Americans will only put up with madness like this for so long, just as the selection of Bruce Jenner as Glamour’s woman of the year drew sharp criticism from a wide spectrum of women, including one well-known feminist.

The pushback continues, and the more that LGBT activists overplay their hand, the quicker the tide will turn against them. It’s only a matter of time.

And so, while as followers of Jesus we should seek to be peacemakers in our communities, loving our neighbors (including our LGBT neighbors) as ourselves, we should also stand tall against aggressive LGBT activism.

This too is part of our calling to be the salt of the earth and the light of the world (Matthew 5:13-16).

This article was originally posted at TownHall.com