From James Wigderson:
It’s bizarre that it came to this point. Even Andrew Sullivan, a gay writer who promoted same-sex marriage before much of the gay community accepted the idea themselves, wrote that he was opposed to making fundamentalist Christians violate their own religious beliefs.
“I would never want to coerce any fundamentalist to provide services for my wedding – or anything else for that matter – if it made them in any way uncomfortable,” Sullivan wrote in 2014. “The idea of suing these businesses to force them to provide services they are clearly uncomfortable providing is anathema to me. I think it should be repellent to the gay rights movement as well.”
But the movement has overtaken Sullivan and, as many on the other side of the gay marriage issue predicted, it’s not enough to allow for individual dissenters from the larger popular culture’s embrace of allowing same-sex marriage. If someone’s religious beliefs conflict with the desires of a same-sex couple to have their wedding recognized as legitimate by everyone, then the religious beliefs must lose to the prevailing liberal orthodoxy. And they’ll demand state power, in a totalitarian spirit, to back up their demand for recognition and acceptance.
I’m afraid this “totalitarian spirit” has been around for a long time. Half a century ago society decided it wasn’t enough to allow for individual dissenters from the larger popular culture’s embrace of allowing black people to use the same facilities as white people. If, say, a lunch counter owner’s deep belief in segregation (often rooted in religious belief) conflicted with the desires of black people to have their equal humanity recognized as legitimate by everyone, then that belief had to lose to the prevailing liberal orthodoxy. And they even demanded state power, in a totalitarian spirit, to back up their demand for recognition and acceptance. You couldn’t just tell them to go eat someone else’s sandwich.
Sorry, this is a long-settled issue. If you’re running a public business, you can’t provide a service to one part of the population and refuse to provide the same service to a different group of people simply because they fall into a category you’re prejudiced against.
In case anyone thinks my analogy above is overblown, here’s a Republican legislator who seems to think the comparison works fine.
Accept one form of bigotry, and others will reassert themselves.
Hardly anyone, whether liberal or conservative, is consistent on this and related issues.
First, religious convictions are not special or more important than non-religious convictions, so there shouldn’t be any cases that focus on religious freedom instead of freedom in general. If a Christian baker can turn away gay customers because of “strongly held beliefs,” an atheist should be able to turn away Christians for similar reasons. Enough with this talk of special rights for the religious.
Second, it is strange and hopeless to try to make an exception in the law for “strongly held beliefs” in general. There is no great reason for which a strong belief should be respected, especially when many such beliefs are immoral. One is not above the law simply because of a conscience, even if breaking the law in question doesn’t directly hurt anyone. Otherwise, we might all be able to refuse to pay taxes on moral grounds. Furthermore, any distinction between convictions firm enough for the law and convictions not quite firm enough would likely be arbitrary and inconsistently applied.
Third, a mixture of special legal protections for certain characteristics of people, especially one that only grows as the need is perceived and the political stars align just so, will inevitably be incomplete and inconsistent. The federal government in the US protects us from discrimination on the basis of race, religion, national origin, age, sex, pregnancy, citizenship, familial status, disability status, veteran status, and genetic information, but that doesn’t protect every characteristic or practice that might face discrimination despite being harmless. Once sexual orientation is protected, we will likely have political battles over protecting other classes of people, but we will always be reacting to the times and we will likely never complete the list.
And then there’s that troubling question of whether or not requiring a Christian baker to write “pro-gay” messages on cakes means that a gay baker must write anti-gay messages or that either baker must also write, say, racist messages. Many people seem to think that the answer is simple: the latter two messages are hateful, so they aren’t the same and no one should be forced to write them. But legally, it isn’t that simple at all.
Libertarians are usually consistent about all of this: let everyone decide for himself whom to serve or turn away and why. Of course, as is often the case with libertarian positions, this totally ignores the consequences.
First, religious convictions are not special or more important than non-religious convictions, so there shouldn’t be any cases that focus on religious freedom instead of freedom in general….. Enough with this talk of special rights for the religious.
This is an important point. A religious conviction is really just an opinion. There’s no reason why the opinion that gay marriage is “wrong” should be privileged over the opinion that black and white people going to the same schools is “wrong” (unless some clear evidence could be brought showing that one or the other of those things does actual harm, in which case the belief would no longer be a mere opinion).
a mixture of special legal protections for certain characteristics of people, especially one that only grows as the need is perceived and the political stars align just so, will inevitably be incomplete and inconsistent.
I think your omment’s last sentence contains the solution to this problem. Being consistent is less important than taking into account the practical, real-world consequences of a policy. Originally discrimination against blacks was banned because in actual fact, the real-world consequences of that discrimination (even just by private businesses) was intolerably detrimental to black citizens’ quality of life. In an alternate United States where the black population was much larger, or most black people lived in self-sufficient all-black cities, that wouldn’t be the case and such policies might be unnecessary. But we have to deal with the situation as it actually exists.
Prejudice against gay people, especially since it’s rooted in a taboo of the dominant religion, is similarly pervasive and in the recent past led to widespread violence and discrimination in jobs, housing, services, etc. The strictest believers in the dominant religion still openly proclaim their support for mass murder of gay people. Again, in an alternate Western world in which Christianity had never existed and Greco-Roman attitudes on this matter (bisexuality in males was normative and there was not even any such concept as “a homosexual”) formed the basis of modern attitudes, no special protection would be needed or imaginable. But again, that’s not the reality we live with.
There’s no need for special laws banning discrimination against, say, blue-eyed people because no such prejudice exists, or at least not on a big enough scale to have much impact. If it did, such laws would be justified.
To the best of my knowledge, none of these cases have involved a requirement to “write pro-gay messages”, which would indeed violate free expression. They’ve been cases where bakers who provide wedding cakes to straight couples refused to provide them to gay couples. That’s why arguments about Muslim bakers being forced to provide ham and suchlike are red herrings. Nobody gets in trouble for not providing a service if they never provide it to anyone at all. But if they offer a service to people of one group and refuse the very same service to members of a different group, that is discrimination, not freedom of expression, and that’s where the legal battles have arisen.
Perhaps I have confused some of the many hypothetical cases I have heard in debates with actual cases. A quick search turned up a case in which a baker refused to write an *anti-gay* message instead:
https://reason.com/volokh/2015/04/07/legal-for-colorado-bakery-to-r
The article makes an important distinction between discrimination on the basis of ideology and discrimination on the basis of religion, which is one of the troubles of attempting to protect belief systems, as opposed to immutable traits, from discrimination.
In any case, while I agree that it is better to forsake consistency than to accept the consequences of allowing discrimination against major groups, I’m not very comfortable with the idea of just letting discrimination take place until our country (1) recognizes it, (2) determines arbitrarily that it has gone too far, and (3) actually does something about it. Otherwise, one could argue that, since gay people don’t make up a large percentage of the population and are not likely to face severe and widespread discrimination, they don’t need legal protection.
Perhaps there is a third option. Instead of considering classes of people one by one and only once there is significant political pressure to do so, we should take a look at the underlying principles or goals of anti-discrimination laws. Protected classes seem to fall into two categories: (1) traits with no negative impact on one’s job performance or “viability” as a customer, e.g. race and sex, and (2) traits that may have such an impact but which must be protected as a matter of obligation, e.g. the pregnant and the disabled. Laws crafted with these broader categories in mind would proactively extend protections to many other traits. It would not be simple to write those laws, but it seems like a step in the right direction to me.