I didn’t vote for Donald Trump, and I don’t expect a lot of good to come out of his administration. But every cloud has its silver lining. The Trump interregnum offers an opportunity to take a deep breath, count to ten, and take a sober look at what is and is not of serious public interest in the bundle of disparate issues and advocacies bundled under the acronym LGBT. Its time to set passions aside, and let real facts on the ground guide a general reassessment.
First, it is time to set aside the misplaced “civil rights” paradigm. The civil rights movement that culminated in the 1950s and 1960s is not a universal template for any and all issues. Now that the once-controversial proposition that “race” is not a significant measure of the worth or aptitude of any given individual is commonly accepted, every cause under the sun wants to wrap themselves in it: PETA, pro-life, LGBT, etc. That’s not valid. Each issue should rise or fall on its own merits. NOTHING is “the civil rights movement of our time.”
There are legitimate concerns that people who are, or might be, or identify themselves as, or are suspected of being, affectionate toward persons of their own sex rather than the opposite sex, are deprived of opportunity to fulfill their real potential when their sexual preference is simply irrelevant. What turns you on sexually is no indication of whether you can be a good lawyer, or engineer, or ditch digger, or dairy farmer, to whether you can or should own or rent a home, or to how you buy a can of corn or a fresh pineapple. Citizens have a right to vote, and their sexuality is simply irrelevant.
On the other hand, there is no obligation to celebrate homosexuality. There is nothing intrinsically beautiful or good about it. Its rather ironic that while people of dark skin were instantly recognizable, and excluded on sight, the gay movement began with the slogan “We don’t know who we are.” There is no legal basis to impose civil disablities on anyone, but there is actually no social obligation to like, appreciate, or approve of homosexuality either. Because the “identity” (or identities) of L, G, B, or T revolve around sexual passions, it becomes almost impossible to celebrate “gay pride” without putting sexual proclivities on display. That’s in rather poor taste — and yes, a little less public display of heterosexual passions would probably improve the esthetics of public culture too.
We cannot, should not, and the federal constitution contemplates that we will not attempt to homogenize American culture, squeezing a variety of private considerations into a one size fits all straight jacket. There are many religious taboos that a good part of the population considers silly. Jews and Muslims will not eat pork or shellfish, Muslims and some Protestant sects will not drink alcohol, Catholics insist on alcohol in one of their holiest sacraments, and Jews are not far behind in their appreciation of wine. Some Baptist churches do not allow women to wear pants in church. Some faiths admit women to the priesthood or ministry, others do not. Some churches consider homosexual affections to be a sin, others are quite willing to celebrate a homosexual union.
There will be no common standard, and the First Amendment specifically reserves the right of any religious faith to teach whatever seems good in matters of faith and doctrine. Individuals are not compelled to join any faith, or adhere to any doctrine, but they may do so if they believe it is appropriate or necessary.
The issue of civil same sex marriage seems to be fairly well settled, and with little real damage to anyone. Some of us may find the constitutional construction of Obergefell a bit dubious, and strangely at odds with Windsor. It is possible that Justice Kennedy’s flowerly language will be revisited in the future, probably over a case or controversy having nothing to do with sexuality. But, same sex marriage is becoming rather uncontroversial, and it would be a tremendous waste of energy to continue to fight over it. There are so many more pressing matters to deal with.
For those individuals who want no part of LGBT, the constitutional dimensions of their right to refrain are clear and the jurisprudence long established. In general, discrimination in commerce is not appropriate, because all of us need access to public accommodations, to grocery stores, to a roof over our heads, to a job we are competent at which can pay our bills and fund our lives. However, federal constitutional jurisprudence clearly forbids the police powers of the state being used to compel speech or expression.
Printers, photographers, florists, wedding planners, have every right to refrain from active participation in a celebration they find personally abhorrent. This is no different than the right of Jehovah’s Witnesses, or anyone else, to refrain from joining in recitation of the Pledge of Allegiance. Yes, a Jewish baker, or an atheist baker for that matter, may refuse to ice a cake with a big swastika for a celebration of Hitler’s birthday. No, a purveyor of fried chicken may not refuse to sell Menu Item #5 to someone who may be gay. The distinctions are clear, simple, obvious, and fundamental to our constitutional frame of government.
Similarly, it should be understood that the Fair Housing Act of 1968 exempted owner occupied dwellings with four or fewer units, a common sense exception. Barry Goldwater was not entirely wrong when he said that you cannot legislate the human mind or heart. Broad laws about public access cannot be applied up close and personal, no matter how irrational an individual’s attitudes might be. Similarly, there is a huge difference between mandating that Holiday Inn rent a room to any weary traveller, without inquiry into their sexual preference, compared with imposing upon a couple running a bed and breakfast in their own home.
Magnification of the medical diagnosis, trans-sexual, into a matter of public policy, has reached heights of utter absurdity. Trans-sexual is not an oppressed minority. Bathrooms and locker rooms are not segregated by sex for the purpose of “affirming gender identity.” They are segregated by sex because most women do not wish to disrobe, partially or completely, in the presence of men, and vice versa. A man who wishes to be, or to think of themselves as, or to act in the style of, a woman, is not a woman. A woman with a trans-sexual diagnosis, is not therefore a man. They are sexually ambiguous.
Public policy should compassionately provide means to reduce whatever embarrassment or discomfort this ambiguity provokes. That could well mean providing single-use facilities so that individuals don’t feel they are in the “wrong place.” There is absolutely no reason that the right to privacy of 99.99 percent of the men and women who are not ambiguous should be compromised to “acccommodate” this medical diagnosis. Nor is there any reason that anatomical males should freely participate in contact sports on female teams, or vice versa.
It is not beyond belief that sexuality may be a bit more fluid than many have believed. After all, there really are cases of amphibians and even chickens who occasionally transition naturally from one sex to the other. Mammals are more complex, and therefore such transitions are perhaps less feasible in any spontaneous sense. Still, biochemistry is rather variable and imprecise, so its not unlikely that in a small minority of individuals, some proteins would point one way and some would point another way. There is no point in flat denial of what is evidently true. There is also no reason to celebrate a random ambiguity.
The fact is, our species, homo sapiens sapiens, is heteronormative. So is every other species more complex than a sponge (animal or plant). Sexuality, sexual hormones, sexual attraction, sexual dimorphism, exists because it was an incredibly effective strategy for reproduction, and for more rapid evolution of new survival characteristics. Whatever the moral, teleological, or theological significance of variations in sexual passion, everything other than attraction of male to female and vice versa is a biologically irrelevant statistical outlier. It is of almost no social significance.
However, human beings are more than mere bundles of instinct. Human culture has evolved toward considerable emphasis on individual autonomy, and the worth of each individual AS an individual, not as a mere creature of the state. We are not a species of hive cultures. There is ample evidence that homosexuality has other causes than characteristics determined at birth, but, there is also ample evidence that some individuals are simply born with different attraction. For each such individual, this is the only life they have to live. There should be adequate social space to allow them to live it in peace and tranquillity, with full legal rights as persons, not specific to their sexuality, but not altered by their preferences.