My confidence in the judgment of my fellow Houstonians has taken a giant leap with the decisive 61-39 defeat of the Houston Equal Rights Ordinance (HERO). The fact that the people of Houston, among the most diverse in the nation, were able to withstand the intimidation of the onslaught of elite opinion brought to bear from across the country and from local business and social institutional leadership is validation of the innate common sense of Americans, particularly Texans.
In the first place, this ordinance was a solution in search of a problem. What was it designed to fix? Where is the evidence of discrimination against any of the supposed targeted groups? If there is no evidence of discrimination, then the initiative could be nothing more than “politically correct” pandering to the radical lesbian/gay/bisexual/transgender agenda. And let’s be clear–the installation of the rights demanded by these activists was what this ordinance was all about.
The opposition framed the issue as the “bathroom ordinance”, as though it would allow sexual predators posing as transgendered to have access to women’s facilities, which was a winning strategy, but although the ordinance would have established a defense for such incursions, I never thought that this was the primary problem with it.
The larger problem for me was that the ordinance included no protection for religious liberty. It made businesses that serve the public subject to the law, with religious “institutions” exempt. There are two points to be made here. First, the decision made by the Supreme Court to recognize same sex marriage in Obergefell v. Hodges is in no way analogous to the Civil Rights Act of 1964, particularly as to its public accommodations clause. There is no comparison between a black patron denied service in a restaurant with a same sex couple denied service by a facility, floral, photography, or wedding cake provider that makes the vendor a participant in the marriage ceremony. Second, the exemption for religious institutions did not include individuals or non-religious organizations, including business owners, acting on their conscientious objections to becoming, in effect, a participant in the ceremony.
We have a long way to go in this country on this debate. Just because five justices have decided that same sex marriage is legal is not definitive, nor is it final. And this notion that gender identity can be based on a personal whim, however deeply held, with a new set of enforceable “rights” attached, is nonsense. The courts will be very busy with all of this over the next several years. But come to think of it, they deserve this burden, because they gave this ideology and line of thinking a substantial share of its credibility in the first place. Remember the “mystery passage” from the majority Supreme Court decision in Planned Parenthood vs. Casey in 1992?: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life”. The author of this opinion was Justice Anthony Kennedy, who also wrote this in the majority opinion in Obergefell v. Hodges: “The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity.” Ideas have consequences.