All the Belly-‘eich’-ing

The resignation of new Mozilla CEO Brendan Eich, who six years ago donated $1,000 to the Proposition 8 effort in California, has generated much ink, some of it probably composed and published and read via Firefox (to make a statement) and some of it probably composed and published and read via another browser (to make a statement). 

Full disclosure: I use Chrome, only because I like it better. Not a political statement of any kind.

Libertarian Conor Friedersdorf says the calls for Eich’s resignation were illiberal. As Scott Lemieux chronicles, some on the right have hysterically compared these calls to McCarthyism. At The New Republic, Brian Beutler observes how conservatives angered by Eich’s resignation have failed to adjust to a “transfer of privilege,” specifically that their anti-gay views are now (to them, abruptly) out of favor (in Silicon Valley at least, if not at A&E.)

And, Beutler goes on, these conservative complainers have failed to notice their own double standard. “Yesterday,” Beutler notes, referring to the calls for protection of the “religious liberty” of employers and businesses who don’t want to employ or serve LGBT people, “employer rights were sacrosanct, and trumped the rights of sexual minorities; today they must be curtailed to protect the rights of political minorities.”

I’m not a big fan of the outrage machinery, of the calls for apologies and peoples’ heads that churns news coverage when there are many more worthy stories to report. We live in a society where there’s been an enormous and rapid shift in public opinion on LGBT rights. There is still a significant minority who oppose those rights, to varying degrees (i.e., some oppose just marriage equality but not other rights, while some oppose any legal rights). Removing them from public view, or cultural stature, won’t make them disappear. As I wrote about Duck Dynasty, A&E created the conditions for Phil Robertson to play the victim, by offering up a sanitized version of him, which led to shock->calls for his head->predictable complaints of persecution of Christians. If A&E had showed us the real Phil Robertson on the air, events would have played out much differently.

On the other hand, citizens who oppose LGBT rights do have to comply with any laws protecting those rights. Being a member of a group holding minority political views, whether based on religion or not, doesn’t give you a pass to evade laws intended to protect the rights of others. 

Which is why I wonder about Eich as a target, especially when one compares Mozilla to other possible sources of outrage. Take, for example, World Vision, which capitulated to evangelical complaints when it reversed a short-lived policy to hire gay and lesbian employees in legal marriages. World Vision, as I noted here, is a significant recipient of federal tax dollars to fund its charitable programs. As a condition of receiving that money, typically, an organization must agree not to discriminate based on religion when hiring employees to fulfill the requirements of its federally-funded grants. World Vision obtained an exemption from such a requirement during the Bush administration, and has held onto it through Obama’s.

Translation: your taxpayer dollars help pay for World Vision’s discriminatory hiring practices. That’s been going on since 2007, at least (before Brendan Eich opened his checkbook for the Proposition 8 campaign) and it has drawn a miniscule fraction of the outrage. Why? Just because you expect Silicon Valley to be the ultimate in gay-friendly, and faith-based charities not to be, doesn’t make the former a better target. One might argue that latter is a better focus of discontent, given that one can choose not to use Mozilla’s products, but one can’t choose not to pay taxes because they fund discriminatory hiring practices.

While I don’t like the calls for Eich’s resignation (although I do very much favor the public accounting of political donations), the notion that Eich’s resignation can be conflated with an alleged persecution of Christians at the hands of a gay mafia are utterly misplaced. Christians are not persecuted in this country (and it’s not even clear, unless I’ve missed something, that Eich’s opposition to marriage equality stems from his religious views).

Today, though, religious conservatives are also feeling defeated by the Supreme Court’s denial of review in the Elane Photography case. That case involved a claim of discrimination under New Mexico’s human rights law for a photographer’s refusal to serve a lesbian couple at their commitment ceremony. The New Mexico Supreme Court held that the state human rights law, which prohibits discrimination based on, among other things, sexual orientation in public accommodations, did not violate the photographer’s Free Speech or Free Exercise rights, nor did it violate the state’s Religious Freedom Restoration Act.

The photographers sought review from the United States Supreme Court on one issue: whether the state human rights law violated their free speech rights. They did not seek review on the other questions. The New Mexico Supreme Court is the court of last resort on the question of applicability of the state’s RFRA. Under the case that led to the federal RFRA, the Free Exercise Clause does not provide an exemption to neutral laws of general applicability. (The plaintiffs have Antonin Scalia to thank for that.) Moreoever, under United States Supreme Court precedent the federal RFRA is inapplicable to the states.

The denial of review doesn’t tell us much about the Supreme Court’s thinking on these issues, but it does mean the New Mexico Supreme Court’s ruling stands.

Elane Photography, you may recall, was the impetus for Arizona’s failed “religious freedom” bill, a version of which was just signed into law in Mississippi. Those religious freedom bills, meant to take up a perceived lack of protection of religious freedom in existing federal and state law, could provide a free pass to use religion to refuse service to certain types of customers. It was public opposition, widely shared by individuals, businesses, business interests, and religious actors, which spurred Arizona Gov. Jan Brewer’s veto, and the failure of similar bills in other states (save Mississippi).

Opponents of LGBT equality face real, significant societal, cultural and legal transformations that do not silence or oppress their beliefs, but demand that they comply with secular laws that protect the equal rights of LGBT citizens. These changes are immense, and important. Similarly, the ongoing practice of carving out religious exemptions from such neutral laws intended to provide equal protection demands close attention, transparency, and accountability. In other words, Brendan who?