Racism and Sexual Orientation Discrimination Are Distinct

by Stephen H. Miller on February 7, 2014

Much of the basis for arguing against allowing small business owners a ‘right of conscience’ religious exemption from providing services to same-sex weddings is an assumed equivalence between sexual orientation and race.

Given the long legacy of slavery and Jim Crow, federally enforced nondiscrimination laws were necessary to allow African Americans access to commercial services available to whites, not to mention voting rights, employment, public accommodations, etc. Advocates of forcing religiously conservative bakers to produce congratulatory wedding cakes with two grooms or two brides atop suggest that the same thing is true of gay people. It isn’t.

Most bakers, florists, etc. would provide these services; allowing a small number to opt out based on religious conscience shows respect for individual liberty that in the long run will serve gay people much better than using the law to force expressive behavior that celebrates same-sex weddings.

Some defending such a draconian application of anti-discrimination law put forth a Manichaean view of good progressives vs. evil traditionalists. That self-congratulatory perspective is blind to the shadow side of leftism/progressivism and its tendency toward collectivist authoritarianism when given a free rein. There’s a striking similarity between leftwing and rightwing inquisitors and heresy hunters.

As Matt Barnum writes at The Purple Elephant blog:

I think we should be uncomfortable making a direct comparison between discrimination against gays and discrimination against blacks. Both have been awful, but only one involved slavery, only one involved de facto and de jure segregation. …

The root of this awful argument [against religious exemptions for service providers who oppose gay marriage] is the notion that race and sexuality are exactly the same—have the same moral status, the same cultural history, and warrant the same legal response. There are certainly overlaps, and gays have certainly been treated very poorly historically. But sexuality is not race, and it shouldn’t be treated as such.

{ 35 comments }

Jorge February 7, 2014 at 11:26 pm

I think we should be uncomfortable making a direct comparison between discrimination against gays and discrimination against blacks. Both have been awful, but only one involved slavery, only one involved de facto and de jure segregation…

Really now?

While I do not lose much sleep over it, I think the history of homosexuals being forced and pressured into straight marriages under the commandment to be fruitful and multiply overtakes the history of African American slavery in the United States by at least a half score thousand years, if not more.

The history of social exile for gays in this country as we see the issue may be shorter than the history of de facto segregation for blacks, but I doubt it. To claim there is no history of de jure segregation for gays strikes me as a bit of a joke.

It is otherwise uncontested that a good chunk of the history of discrimination for African Americans has parallels with the history of discrimination for gays.

To say such things is an imposition on people who lose a great deal of sleep over the history of African American discrimination and who are vigilant about protecting themselves and their community. Politeness sometimes demands that one looks inward rather than outward. But it is only a politeness. That one person struggles does not mean another does not, even if the two shall not join in solidarity.

And I think regardless of how negatively some may view the gay rights movement, the African American community deserves to know the impact they have had in changing this country for the better and giving hope to others.

Mike in Houston February 8, 2014 at 1:42 am

Another jargon-filled yawner.

Nobody says that racism and discrimination against gays is the same thing except for people who don’t want to recognize that they are fruits of the same poisonous tree.

Yes. Jim Crow was legalized discrimination based on race… So too were the sodomy statutes and other laws that made it illegal for homosexuals to congregate, much less anything else. A legal structure used to intimidate gays and lesbians, close employment doors (ever heard of Frank Kameny?) and brand LGBT people as mentally ill and sexual predators… A legal structure that had law enforcement turn a blind eye to lynchings, beatings and mayhem towards LGBT folks.

Hey Stephen, how about posting about the laws being proposed all over the place to make it legal to discriminate against anyone who is LGBT if you have a “strong personal belief or religious conviction”?

Nope. Instead we get a lot of vacuous buzz words straight from breitbart and gay patriot (aka America’s dumbest homosexual).

Try reading what Coretta Scott King said on the subject and then write a better post or “further”…

Houndentenor February 8, 2014 at 10:02 am

Exactly. The proposed Arizona law is particularly heinous. Why no comment on that? Is Stephen even for gay rights at all? Or just attacking liberals?

craig123 February 8, 2014 at 10:07 am

Another jargon-filled yawner.

Then PLEASE explain why you keep coming here and commenting. It’s “jargon” if you disagree with it – so please stay with the other 99.9% of the LGBT blogsphere that apes your views (and is so perfectly free of jargon and ideology, unlike IGF!).

Dale of the Desert February 8, 2014 at 11:32 am

I take it that craig123′s idea of a dialogue here is for no one to challenge IGF orthodoxy. Well, Stephen Miller’s ideas may reflect his orthodoxy, but that doesn’t make them orthodox for all sentient persons of a conservative bent. Nor does it mean that sentient persons of a progressive bent should not challenge faulty thinking in this forum also.

a.j. February 8, 2014 at 11:46 am

So what, exactly, is the challenge to Stephen’s argument? What I see from “Dale of the Dessert” and “Mike in Houston” is simply dismissing the post with the accusation it’s “jargon.” Because the left’s policies don’t lead to collective authoritarianism? Because forcing bakers to bake congratulatory cakes serves them right? Because abortofacients are good at lowering the population so nuns should be made to pay for them?

I think Stephen hit the nail on the head: the site is full of lefty “heresy hunters” who give themselves a pat on the back every time they comment on a non-”progressive” post and affirm the party line (left=GOOD; non-left=BAD).

Houndentenor February 8, 2014 at 1:15 pm

The banner subtitle here is “forging a gay mainstream”. You don’t want anyone to the left of the extreme right posting here? Change the banner. I certainly don’t post at the radical extremist Gay “Patriot” site.

Also, I think it’s odd when someone’s attack is for criticizing at all and not the substance of the criticism. Are your political convictions so fragile that they can’t stand the slightest bit of criticism from strangers on the internet?

Tom Scharbach February 8, 2014 at 4:23 am

Much of the basis for arguing against allowing small business owners a ‘right of conscience’ religious exemption from providing services to same-sex weddings is an assumed equivalence between sexual orientation and race.

Given the long legacy of slavery and Jim Crow, federally enforced nondiscrimination laws were necessary to allow African Americans access to commercial services available to whites, not to mention voting rights, employment, public accommodations, etc. Advocates of forcing religiously conservative bakers to produce congratulatory wedding cakes with two grooms or two brides atop suggest that the same thing is true of gay people. It isn’t.

I think that’s a red herring. But even if some “advocates of forcing religiously conservative bakers to produce congratulatory wedding cakes” are making the argument that racial discrimination and sexual orientation discrimination are “equivalent” (I have not heard that argument used on IGF, and it runs scare elsewhere as far as I can determine, being raised primarily by social conservatives bemoaning opposition to the so-called “religious exemption” laws being proposed), and whatever the similarities/differences of legal repression may be in each case (my view is that both similarities and differences exist), it is irrelevant to the question at hand. That’s what makes it a red herring.

If you doubt that, consider this question: What differentiates a religious objection to baking “congratulatory wedding cakes” for remarriages after divorce and baking “congratulatory wedding cakes” for same-sex weddings. Both are condemned by the majority religion in our country as sinful. Why should a baker be forced to produce a “congratulatory wedding cake” for a adulterous couple being married but granted protection from the law if the couple is a same-sex couple? That example illustrates the question at hand every bit as much as the comparison of same-sex marriage and interracial marriage.

The question at hand is the relationship of personal conscience and law, the interplay between (1) the principle posited by Section 1782 of the Catechism of the Catholic Church (“Each person has the right to act in conscience and in freedom so as personally to make moral decisions. No person must not be forced to act contrary to his conscience. Nor must any person be prevented from acting according to his conscience, especially in religious matters.“), (2) the need for government to regulate the business activities of individuals and corporations in order to promote the common good, and (3) constitutional limits on the government’s power.

You wax eloquent about libertarian thinking on this blog. You frequently quote the Cato Institute with approval, and you frequently cite political commentators who you describe as libertarian. Think about that, for a second.

A libertarian-thinking approach (left-libertarian or right-libertarian) starts with the position that the government should not interfere with any exercise of personal conscience without a an important and rationally-related government purpose, and reluctantly permits exceptions to the general principle. A libertarian approach is embodied in Wisconsin’s proposed constitutional amendment, which applies to all exercise of personal conscience, religious or otherwise, and applies to all laws, “unless the state proves it has a compelling interest in infringing the specific action or refusal to act, and the burden is the least-restrictive alternative to the state’s action“.

You (and the Republican social conservatives you are supporting) are taking the opposite approach. You are proposing that the government carve out a single exception to public accommodation laws, non-discrimination laws of general application, to exempt a single exercise of conscience — religious objection to same-sex marriage. You won’t even extend the idea of “the right to be left alone” to other obvious religious objections that are applicable to florist/bakers (such as “… a florist/baker turning down a straight couple planning to be remarried after the bride’s divorce … a florist/baker turning down an interracial couple … a florist/baker refusing to make a cake or provide a floral arrangement for a Catholic baptism or confirmation …“, let alone to exercises of non-religious personal conscience, or the applicability of personal conscience objections to other laws.

Whatever that may be, it isn’t consistent with libertarian principles, and it isn’t consistent with the “right to be left” alone embodied in our constitution.

Jorge February 8, 2014 at 11:55 am

If you doubt that, consider this question: What differentiates a religious objection to baking “congratulatory wedding cakes” for remarriages after divorce and baking “congratulatory wedding cakes” for same-sex weddings. Both are condemned by the majority religion in our country as sinful.

The majority religion in the United States isn’t Roman Catholicism. It’s Protestantism. Roman Catholicism is merely the plurality denomenation.

And from what I can gather on the internet, there is no consensus on the subject of divorce and remarriage in Protestantism:

http://www.religioustolerance.org/div_ok2.ht

Tom Scharbach February 8, 2014 at 12:59 pm

According to the Religious Tolerance website, there are about 1,200 denominations of Christians in the United States, and a huge number of Christian “Bible” churches that are unaffiliated.

Obviously, not all of them are going to agree on everything, even something as basic and explicit as Matthew 5:31-32 and similar, and that includes but is not limited to divisions within the Christian denominations on same-sex civil marriage and/or religious marriage.

Catholics, you know, are not “the only gays in the village” when it comes to divorce and remarriage. I would argue that a majority of Christian adherents in the United States belong to a denomination (e.g. Roman Catholic, Missouri Synod Lutheran, various Baptist conventions and so on) that condemn divorce and remarriage, although I certainly haven’t taken a count. I also admit that Matthew 5:31-32 and similar is widely ignored in this country.

That is not relevant to the point. Clearly there are some Christians who continue to adhere to Matthew 5:31-32 and similar as religious principle, and among them there is almost certainly one who is a baker/florist who would have religious objections to being forced to produce a “congratulatory wedding cake” for a couple if one of them was divorced and remarrying.

Is not that one, lonely, remnant Christian’s “religious conscience” as worthy of protection as the “religious conscience” of Christians who would not bake a “congratulatory wedding cake” for a same-sex couple?

If so, then why are the current rash of laws not protecting that one, lonely, remnant Christian’s “religious conscience”?

If not — if there is a difference between the two cases such that one deserves protection and the other not — what is the difference between the two cases that justifies government from legislating in the one case but not the other, given that government is prohibited from discriminating between classes of citizens without good reason?

It is not an idle question on my part. As you know, I am a strong proponent of “equal means equal”. The current spate of so-called “religious exemption” laws, which single out gays and lesbians for special discrimination, are a mockery, for the most part, of “equal means equal”. The question I’ve been asking in various forms for weeks now — “Why is conscience protected in the case of same-sex marriage, but not protected in other cases, no matter how similar?” — goes to the heart of the matter, as far as I am concerned.

Jorge February 8, 2014 at 6:53 pm

Is not that one, lonely, remnant Christian’s “religious conscience” as worthy of protection as the “religious conscience” of Christians who would not bake a “congratulatory wedding cake” for a same-sex couple?

Sure. Buy him out and burn the other florist shops down :)

But wait

There is no anti-discrimination law protecting random people who divorce and remarry from businesses, so that wouldn’t even apply. That is only true in employment law. (I cannot be certain this is true, actually. This is state law we are talking about, after all.)

Tom Scharbach February 8, 2014 at 10:09 pm

You are probably right, although a half-decent lawyer could easily come up with an actionable case for religious discrimination. But quibbling misses the larger point:

The question I’ve been asking in various forms for weeks now — “Why is conscience protected in the case of same-sex marriage, but not protected in other cases, no matter how similar?” — goes to the heart of the matter, as far as I am concerned.

That’s the question that nobody who is pushing the so-called “religious conscience” exemption fad seems to be willing or able to answer. Its all deflection, red herrings and quibbles.

Houndentenor February 8, 2014 at 1:17 pm

You are quite correct. And lumping all the Protestants together is only useful in terms of a broad demographic. There are broad and substantive disagreements among various Christian groups on almost every issue. Even within a specific congregation, opinions on divorce and remarriage vary greatly.

Tom Scharbach February 8, 2014 at 8:26 am

The root of this awful argument [against religious exemptions for service providers who oppose gay marriage] is the notion that race and sexuality are exactly the same—have the same moral status, the same cultural history, and warrant the same legal response. There are certainly overlaps, and gays have certainly been treated very poorly historically. But sexuality is not race, and it shouldn’t be treated as such.

By the way, Stephen, just to keep the record straight (in light of your long record of taking quotes from other sources out of context), the “awful argument” noted in Barnum’s blog is clearly stated in the blog:

Mark Joseph Stern has a truly remarkable post up over at Slate. Stern – whose work on religious liberty I’ve written about here and here – makes the incredible claim that allowing business owners the ‘right of conscience’ to refuse gay customers would lead to…wait for…segregation. Or as the title of piece thoughtfully puts it, “Anti-gay segregation may be coming soon to Oregon.”

Assuming that Barnum correctly characterizes Stern’s position (there are limits to how much I’m going to back track accuracy) Stern’s argument is, indeed, an awful argument, a dreadful overstatement verging on hysteria.

But it is not an argument that is germane to a rational discussion about the role of personal conscience objection to laws of general application under our constitution.

And, while we are taking a look at dreadful overstatements, let me call attention to this example:

Some defending such a draconian application of anti-discrimination law put forth a Manichaean view of good progressives vs. evil traditionalists. That self-congratulatory perspective is blind to the shadow side of leftism/progressivism and its tendency toward collectivist authoritarianism when given a free rein. There’s a striking similarity between leftwing and rightwing inquisitors and heresy hunters.

The role of personal conscience objection is a discussion we should be having as a nation. But overheated rhetoric like this doesn’t contribute to a rational discussion of an important issue.

It isn’t hard to find fools in American political commentary. It is tempting to use them as examples in order to make a Manichaean argument about those on the other side the of the issue (as you just did), but it is a temptation that those of us who are interested in rational discussion try to avoid.

Houndentenor February 8, 2014 at 10:00 am

I have never once heard anyone argue that race and sexual orientation are EXACTLY the same. Here we go with the strawman arguments yet again. There are SOME similarities but no one is arguing that the oppression of gay people over the years was the same or as bad as what happened to African Americans. No one. It’s only that we look to the civil rights movement as a model and as inspiration for a society with equal rights for all its citizens.

Also, you keep arguing that refusing to bake a cake for a gay wedding is some sort of “religious freedom”. What I see is a special right for certain religious people to exercise anti-gay bigotry. I’ll repeat my request that if that is their policy they should have to post it where everyone can see and in all ads. The same goes for employers who want to refuse certain medicines or medial treatments from health insurance obtained through employment with their company. That way we can all know in advance that the company is run by bigots and we can avoid wasting our time.

Is any other group asking for such an exception to nondiscrimination laws? I can’t think of any. Have we ever allowed bigots to have exceptions to such laws before? If the argument is that businesses have the right to be bigots and refuse services to anyone, then make that case. Some do. Most don’t because they know how unpopular it would be. But a special exception for religious extremists is unprecedented as far as I know.

Jim Michaud February 8, 2014 at 11:01 am

I forgot where I read this, but here seems to be the perfect place to say: I don’t want to compete in an “oppression Olympics” where the civil rights of blacks are compared to (and held up as more important) than the civil rights of gays. Each group had their own unique circumstances, history and outcomes. This falls right into the trap that NOM set up: pitting blacks vs. gays.

Tom Scharbach February 8, 2014 at 11:40 am

Me neither. There’s no point to it, since it is irrelevant to the legal/constitutional questions.

I’m old enough to have lived in segregation days, and old enough to have seen the entire post-Stonewall history of our struggle for equality unfold before my eyes. I can see similarities, and I can see differences.

I can also see similarities/differences between our history and the history of Catholics in America (legal disabilities, private-sector bias, state constitutional amendments, and political impediments), and between our history and the women’s right movement, and so on. Anyone familiar with American history can see common threads, as well as differences.

The similarities/differences between the various struggles for equality in our history would make an excellent set of compare/contrast test questions for any American History course at high school or college level.

But that is all beside the point. Our history is ours, and it is, in the words of the Haggadah, sufficient.

Houndentenor February 8, 2014 at 1:20 pm

Exactly. I get nothing out of arguing whether blacks were treated worse than gays at any specific point in history. There is no “win” in such a debate. Human rights abuses should all be opposed no matter who is doing what to whom. I fail to see that being asked to take money from a gay customer to bake a cake and put two brides on top is a human rights violation. If that is the case, then please advertise yourself as a bigoted business person so I will not bother you with my dirty faggot money. That’s all I ask. I certainly don’t want to force bigots to take my business. I also don’t want to force misogynists and racists to take my money either.

Doug February 8, 2014 at 12:15 pm

Apparently Stephen is now arguing that you are not oppressed or discriminated against unless you were a slave. I guess the fact that until 1973, you Stephen, were de facto mentally ill, is not a form of oppression and discrimination.

Mark February 8, 2014 at 7:35 pm

It’s also worth noting how incredibly broad virtually all of these exemption laws are. Under the guise of refusing to recognize same-sex weddings, they’d allow an apartment owner to refuse to rent to a gay couple if the couple were married; allow an anti-gay business owner to refuse to put a same-sex spouse on the company’s health care plan even if opposite-sex spouses are covered; allow government clerks to refuse to serve a gay or lesbian person if the person is married; allow a restaurant to deny seating to a gay or lesbian couple if the couple is married, etc. The “recognition,” contrary to what Stephen misleadingly argues, is a lifelong thing–it doesn’t just allow exemptions of anti-gay businesses on the day of the wedding, it gives them the right to discriminate against married gays and lesbians for as long as the couple is married, since serving the married couple could be construed as celebrating a same-sex marriage.

Jorge February 9, 2014 at 9:37 am

That’s a sharp punishment for suing a Christian bakery and florist. I’ve no intent to interfere.

Mark February 9, 2014 at 10:38 am

The “punishment” has nothing to do with suing a Christian bakery. (Aside: what is a “Christian” bakery? Five years’ ago, had anyone even heard of such a thing?) Under the “exemption” laws that Stephen promotes, the “Christian” bakery would still need to serve an unmarried gay person; only married gay people would lose all anti-discrimination rights.

Maybe that’s a good idea (it sounds as if you think it is). But I’m puzzled as to why Stephen never mentions these examples–the anti-gay business owner who would gain the right to refuse to place a gay spouse on the company health care, even if the company covers opposite-sex spouses, for instance. If exemption is such a great idea, at least be honest in describing what it does.

Tom Scharbach February 9, 2014 at 11:03 am

If exemption is such a great idea, at least be honest in describing what it does.

The simple fact is that proponents of the so-called “religious objection to gay marriage” laws won’t be honest in describing the nature and scope of the laws because the proposed laws are nothing more or less than an attempt to perpetuate discrimination against gays and lesbians, and exposing the nature and scope of the laws to the light of reason will expose that fact.

So what we get is obfuscation, mislabeling, misdirection, red herrings, appeals to emotion, quibbling, and ad hominem attacks on “leftism/progressivism and its tendency toward collectivist authoritarianism”.

I think that there is a place for personal conscience exemptions to laws of general application. But these proposals don’t cut it. Not at all.

Mark February 9, 2014 at 2:08 pm

Agreed.

I believe (although I can’t say for sure, since he never seems willing to come out and say it) that Stephen opposes all anti-discrimination laws as they apply to sexual orientation.

That’s a principled libertarian position–not one I agree with, but principled. But the “exemption” position–that public accommodations should be able to discriminate against married gays and lesbians across the board, and against single gays and lesbians who are about to get married across the board, but still must serve single gays and lesbians–is simply strange.

I’m also struck by how Stephen and the social conservatives who back the exemption laws place no burdens on the discriminators. So the anti-gay business who won’t cover the health insurance of a gay spouse never has an obligation to reveal it. The restaurant that won’t seat a married gay couple, or the anti-gay baker who won’t sell goods to a married gay couple, don’t have to put their commitment to discrimination on their website or on their store-front. Only when a gay or lesbian couple requests a service–to which they’d be entitled under the law–will they find out that the business is claiming a right to discriminate against them.

Jorge February 10, 2014 at 8:19 am

The “punishment” has nothing to do with suing a Christian bakery.

Then why are people trying to pass these religious exemption laws? Because they like to hear themselves talk?

There is a principle in physics that often applies to real life: every action yields an equal and opposite reaction. The pettiness of these legal actions against a few individuals has a consequence in similar lack of good faith with which the center-right will resolve the political tensions surrounding legalized same-sex marriage. It has become an ideological brawl.

Mark February 10, 2014 at 9:12 am

“People” are trying to pass these laws because it’s a good political tactic for those opposed to marriage equality to frame the issue as one in which “Christians” are the victims.

The tactic dates from the Prop 8 campaign in 2008 and the Question 1 campaign in Maine in 2009. (Here’s the ad in Maine: http://www.youtube.com/watch?v=1U7bs5yHJv4) That’s well before we ever started hearing of “Christian bakeries,” and before the lawsuits in Oregon, Colorado, and Iowa were filed.

I hadn’t realized, by the way, that enforcing anti-discrimination laws is “pettiness.” Most people would consider it enforcing the law.

Tom Scharbach February 10, 2014 at 10:56 am

Then why are people trying to pass these religious exemption laws? Because they like to hear themselves talk?

No, the laws are being pushed because two factors intersect: (1) the courts are ruling that the state’s interest in enforcing public accommodations non-discrimination is sufficiently important to override religion-based discrimination, requiring a change in law to permit discrimination, and (2) the Republican Party has a continued self-interest in catering to conservative Christians as marriage equality becomes the law of the land, leading Republican politicians to introduce and enact the laws.

I think those participating in the mad rush to protect so-called “religious conscience” discrimination against gays and lesbians might want to consider Justice Scalia’s opinion in Employment Division v. Smith:

We have never held that an individual’s religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate. On the contrary, the record of more than a century of our free exercise jurisprudence contradicts that proposition.

When followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity./blockquote>

BTW, this isn’t about “pettiness”. It is about an important constitutional question.

Tom Scharbach February 10, 2014 at 10:58 am

A formatting note on the comment re Employment Division v. Smith: The words “BTW, this isn’t about “pettiness”. It is about an important constitutional question. ” are not Justice Scalia’s words; they are mine.

Doug February 9, 2014 at 2:01 pm

Stephen defeated his own argument with the title of this post “Racism and Sexual Orientation DISCRIMINATION Are Distinct” emphasis on DISCRIMINATION. The first definition of discrimination is: the unjust or prejudicial treatment of different categories of people or things.

Tom Scharbach February 9, 2014 at 2:28 pm

Stephen defeated his own argument with the title of this post “Racism and Sexual Orientation DISCRIMINATION Are Distinct” emphasis on DISCRIMINATION. The first definition of discrimination is: the unjust or prejudicial treatment of different categories of people or things.

Stephen knows full well that the proposed laws perpetuate discrimination against gays and lesbians, because he’s said that in other posts, as well as this post. He is working overtime to try to find a reason to treat discrimination on the basis of sexual orientation differently than discrimination based on race, gender, religion and so on. To date, he’s not been successful, and neither, as far as I know, has anyone else.

But the core of Stephen’s argument is not legal, or constitutional, or even principled. The core of Stephen’s argument is pragmatic politics: “[A]llowing a small number to opt out based on religious conscience shows respect for individual liberty that in the long run will serve gay people much better than using the law to force expressive behavior that celebrates same-sex weddings.

I understand where Stephen is coming from, in terms of practical politics. The “religious conscience” laws create an issue that Republicans can hold out as proof that “We’re fighting for you …” as the constitutional train comes down the track, horn blaring and lights shining, to upend the Republican anti-marriage amendment strategy. It leaves conservative Christians with something for their three decade long investment in God’s Own Party, and gives Republican politicians bragging rights.

In terms of raw, cynical politics, it is an ingenious move by the Republican Party.

It is not a deal that I think we should accept, though, because we sacrifice a great deal (as Mark pointed out) for absolutely nothing. I think that there is a place for conscientious objection to laws of general application, but this isn’t that. It is yet another cynical political maneuver, and it stinks to high heaven.

JohnInCA February 9, 2014 at 2:56 pm

This argument doesn’t make sense.

The set Non-Discrimination Laws (ND for short) includes multiple traits, which I will abreviate as Ra (race), Rl (religion), A (age), N (nationality), S (sex) and D (disability).

Or to put it another way, ND = {Ra, Rl, A, N, S, D}.

In some places Q (LGBT) has been added to the set ND.

From re-reading your post, this doesn’t actually oppose that.

What you are arguing for is an exception where ND does not apply if me.Rl and you.Q.

Arguing that Q is unlike Ra is irrelevant to this conversation. What you need to argue is why me.Rl + you.Q is a unique arrangement such that ND should not apply. Specifically, you’re going to need to argue that this exception would still be fair even though me.Q + you.Rl still falls under ND.

Or, in plain English… to meet the minimum threshold for fairness these so-called “moral exception” clauses need to also provide for turn-about.

Tom Jefferson III February 9, 2014 at 5:51 pm

Yes, anti-black oppression is not 100% the same as anti-gay oppression or vice versa. Likewise, the oppression that a black man faces is not the same as a black woman faces or a black, lesbian, woman in a wheelchair…I am not sure if anyone — remotely sane — was suggesting otherwise.

People who try to make it into some sort of Olympic competition of oppression are fools or fools trying to make some sort of social commentary joke or right-wing fools trying to divide and conquer.

The problem is that when you make the theoretical argument “I should be exempt from civil rights laws because I dislike “x” people or “x” marriage or “x” religion, their are logical consequences of your theories — even if we may disagree with them…we can still take them to their logical conclusions. Notice I do believe that exemptions need to exist and (apparently) I am a bit more generous about them, then some. However…

If — in keeping with the connection between this Olympics and the one in Germany — someone starts using invoking a ‘religious exemption’ to serving or providing services to say, Jewish people.

Jewish (or Muslim) Americans are — in most cases — in a distinct minority group who Christians — especially of the more fundamentalist variety — generally look down upon.

So, if people start deciding not to provide goods or services to Jews or Muslims, would that apply under the ‘I-don’t-bake-cakes-for-gay-weddings’ exemption?

Mike in Houston February 10, 2014 at 12:42 pm

What I find most frustrating about Stephen’s “arguments” about public accommodation laws and religious exemptions to them is that he obviously hasn’t actually read these state laws or what the case law and language around Title IX’s carve-outs for religious organizations says with regards to employment, etc.

As I’ve said before, there is no one arguing that race and sexual orientation are the same… and you need only look at the language in any of the pro-LGBT legislation put forward over the last decade to see that the solutions being sought to deal with LGBT discrimination are way different than those put in place to redress racism in America’s public sphere.

ENDA — prohibits discrimination based on sexual orientation and gender identity; doesn’t apply to the Mom & Pop type of small business (including Christian bookstores); doesn’t have any sort of affirmative action (aka quotas) — the language goes out of its way to say that nothing in the bill can be construed as to requiring quotas… the whole basis of the bill is to let LGBT folks have the opportunity to rise or fall based on their talents alone.

Matthew Shepard / James Byrd Hate Crimes Law — while most folks fixate on sentencing enhancements, the major thrust of the law is to better equip law enforcement to deal with bias-related crimes… and to provide federal capabilities in the case that the local authorities can’t (due to resource constraints) or won’t (due to inherent bias) act.

Public accommodation laws that include LGBT protections — simply removing barriers to public markets for goods & services (including housing)… having free and open markets seems like a pretty “liberty” kind of thing, but don’t ask me, I’m apparently a repressive, progressive statist automaton.

Tom Jefferson III February 12, 2014 at 1:13 pm

I suspect that “Mr S” is making the standard libertarian-conservative argument that a business owner should be treated like a soverign king or queen; i.e. the king gets to run his own little kingdom (business) whoever he wants and anyone who says otherwise must be a socialist or a communist or a “repressive, progressive statist automaton.”

Yes, we do tend to carve out exemptions for certain private entities when it comes to civil rights/public accom laws.

Yes, when the private sector or private entity is involved, their are some Constitutional laws in play.

However, that is not quite the same thing as the Ayn Rand or libertarian argument that gets — selectively — tossed around.

Tom Scharbach February 12, 2014 at 6:23 pm

I suspect that “Mr S” is making the standard libertarian-conservative argument that a business owner should be treated like a soverign king or queen; i.e. the king gets to run his own little kingdom (business) whoever he wants and anyone who says otherwise must be a socialist or a communist or a “repressive, progressive statist automaton.”
I suspect that “Mr S” is making the standard libertarian-conservative argument that a business owner should be treated like a soverign king or queen; i.e. the king gets to run his own little kingdom (business) whoever he wants and anyone who says otherwise must be a socialist or a communist or a “repressive, progressive statist automaton.”

No, he’s not. He is arguing that business owners should have the right to discriminate against married gays and lesbians. He’s never said a word about allowing them to discriminate against married straights or any other group.

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