Discrimination — Old Thoughts And New

Julian Sanchez has the best analysis of the new round of religious freedom bills, and helpfully borrows Reason magazine’s description of Arizona’s attempt as a “homophobic stunt,” which is really all the rhetorical kicking it deserves.

Sanchez distinguishes among different kinds of discrimination, and persuasively argues that what African Americans went through in the 1960s is different from what lesbians and gay men are going through today.  There are similarities between these discriminations, but they are not identical.  And the differences require some different thinking about government solutions.

There is one quibble, though, which I think is worth some attention.  After looking at our nation’s legacy of slavery and other laws and practices embodying naked racist assumptions, Sanchez moves on to sexual orientation:

Sexual orientation, unlike race, is not transmitted across generations, which means a gay person born in 1980 is not starting from a position of disadvantage that can be traced to a legacy of homophobic laws in the same way that a black person born in 1980 is likely to be disadvantaged by centuries of government-enforced racism.

This misses something essential.

Laws criminalizing sodomy were virtually universal in America, embedded in our legal structure in ways that manifested – for homosexuals — far outside the criminal realm.  For most of American history, homosexuals could have no identity as a group to lobby for different laws, no ability to form meaningful relationships (much less marriages), no lawful ability even to drink or dance together in a bar.  Few knew there were other homosexuals to even meet, and trying to find out meant the risk of imprisonment.  It was not until the 1960s that gay groups could freely send political magazines to one another through the mail without concern about exposure or prosecution.

Those generations that African Americans came from provided at least the comfort of family and identity that was inaccessible to nearly all homosexuals.  The closet was a refuge, but had its own repercussions.  No ordinary life can be lived entirely in private.  For homosexuals, simply to function day-to-day required some level of denial, and the fabrication of an appearance of heterosexuality.

This is certainly different from the regime of racism in American law and culture.  But in its own way the centrality of inauthenticity was no small psychological disadvantage, and it was borne entirely internally by each isolated person.  Lesbians and gay men spent generations as an invisible population with an invisible burden.  And this lasted well into the present.

With the sodomy laws gone, we may soon be able to retire the closet as well.  Like racism, the homophobia won’t go away, but its practitioners will place themselves on society’s fringes, for whatever satisfaction that provides them.

A critical part of Sanchez’s argument is that this is already where most homophobes are, and he’s not wrong.  Like many of us who are of a certain age, I don’t think the homophobes were prepared for how quickly the world could change around us all.

It did, and if we must still have laws, Sanchez is right that they should take the facts of that world into account.  But we should also understand history as correctly as we can.  Laws originally written in a world that had no open lesbians and gay men can be far more damaging to homosexuals than laws drafted today designed to flaunt what homophobia still exists.

14 Comments for “Discrimination — Old Thoughts And New”

  1. posted by Tom Scharbach on

    A few thoughts:

    (1) I agree that the proposed laws have nothing whatsoever to do with protecting “religious freedom”, but I do not agree with Sanchez that the proposed laws in Arizona and other states are a “homophobic stunt” and nothing more. The laws are not intended, primarily, to protect business owners who have objection to marriage equality, because that goal could have been accomplished, consistent with historic exemptions in other areas of public accommodation law, by defining a threshold under which public accommodation laws to not apply. In my view, the proposed laws are an attempt to (1) erode the foundation of “equal means equal” by sanctioning discrimination against gays and lesbians, and gays and lesbians alone, and (2) enshrine moral disapproval of homosexuality in law. The dogged insistence that the laws be framed in terms of religion has a purpose beyond exemption to public accommodation laws, to my mind, and that purpose is obvious.

    (2) I find the attempts by conservatives to drawn distinctions between the history of legal suppression of gays and lesbians and segregation curious. I think that it is misleading and irrelevant. Gays and lesbians have claimed that our histories have similarlities, but I’ve never heard a proponent of “equal means equal” argue that the histories are identical. That is all coming from the conservatives, primarily the social conservatives. Why? I suspect that the underlying, and unstated, argument, is that because the two are not identical, the gays and lesbians do not need the protection of public accommodation laws. I would point out, however, that public accommodation laws protect more classes than just African-Americans and gays/lesbians. The laws also protect women, other races (Hispanics, Native-Americans and so on), ethnic groups (Irish, Poles, and so on), and adherents of the various religions. Each of these classes has a history that differs from both the history of African-Americans and gays/lesbians (for example, the history of discrimination against Christians, embedded in the First Amendment, was largely a history of discrimination and disablement coming from other Christians) but we do not hear, oddly, that any of them are not entitled to full protection of the public accommodation laws because their history is not identical to the history of African-Americans.

    (3) I think that we should carefully consider at point that Mark made in the “Arizona Afterthoughts” thread. I mention it because I think that it is insightful, and because it came so late in that thread that it might be overlooked. The following is an excerpt:

    Why not? Perhaps one theory is that until the rise of the organized anti-gay marriage movement in Prop 8, which focused heavily on the idea that letting gays marry would victimize others, no one (or virtually no one, and no one in the political mainstream) argued that the act of selling a cake to someone, or taking pictures of someone, constituted moral approval of the manner in which the customer would use the cake or the pictures.

    Adopting this (very radical) AZ-KS conception of public accommodations to the 1960s would have rendered many applications of public accommodations laws unconstitutional: if selling a cake (or a rose, or a diamond ring) to an interracial couple could be interpreted as expressing moral or religious support for that couple’s wedding, then of course (under this current definition of “religious exemptions”), public accommodations laws should not have applied.

    The popular mindset (at least among conservative Christians) has changed, and I don’t think we can go back to the 1965-2008 widely-accepted consensus that a business selling a customer a cake or a rose or a photograph didn’t imply the business endorsing the moral purpose of how the customer would use that product.

    If Mark is right, and there is a shift underway concerning our cultural understanding from “business isn’t religion” to “business activities involve a moral judgment about customers”, then we may need to rethink public accommodation laws from a new perspective. I’m not sure that Mark is right, but it is something we need to think about seriously.

  2. posted by Doug on

    If it is now argued that selling a wedding cake to a gay or lesbian customer would imply endorsing the customers lifestyle would it also not mean that a customer purchasing a cake from a gay baker was also endorsing the bakers lifestyle?

    That should be a conundrum for every evangelical christian with every purchase they make since it’s not necessarily obvious that the business owner from whom they are purchasing is married to a person of the same sex. And god knows they would not want to unwittingly endorse the lifestyle of the business owner in a same sex relationship.

  3. posted by Lori Heine on

    Tom and Doug make excellent points. I’d like to make a suggestion.

    In dealing with those who want to drag religion and morality into every commercial decision, we should change tactics. Instead of saying that we don’t want to talk about it, we should say, “Okay, let’s DO talk about it.”

    As Dubya would say, “Bring it on.”

    There are literally loads of moral implications to the choices these people exercise when they purchase the products they do, or use the services they choose to use. Choices that affect the lives of people in their communities — and sometimes on the other side of the world.

    Do they truly want to think about this? Are they honestly interested in living upright Christian lives? Or are they merely using their “Christianity” as a smokescreen for their bigotry?

    I believe that it is time to have a substantive conversation about morality in the marketplace. I just don’t think we should let the social Right dominate it. They certainly shouldn’t be allowed to totally control it.

    There’s no reason we should need to feel that we have to run and hide from such a discussion. What we should do, instead, is demand to have a voice in it.

  4. posted by Tom Scharbach on

    Interesting questions, Doug and Lori.

    A lot of us recognize that there is a moral component to purchasing and investing — purchasing “fair trade” coffee to support economic justice, not investing in South Africa during Apartheid, giving preference to companies with high Corporate Equality stores, avoiding companies exploiting child labor, and so on. A lot of Americans involve moral considerations in their investment and purchasing choices, and in a sense, those decisions rest on the idea that we should not support business practices that we believe are morally repugnant.

    But it seems to me that the idea that our purchases from a company owned by a person is an endorsement of that person’s moral character or beliefs is a long step beyond making choices based on the morality of business practices.

    I do not, by purchasing an ice cream cone from a business owned by a Christian, endorse the divinity of Jesus, rendering myself a Gentile. I am merely buying an ice cream cone. I do not, by helping my neighbor (a fundamentalist Christian) build his house, endorse his religion or his views on homosexuality. I am merely helping my neighbor.

    It is possible to take the principle of “moral endorsement” to an irrational extreme. I think that the idea underlying the “religious belief” laws — that somehow a business owner catering a same-sex wedding reception is endorsing same-sex marriage — is a case in point.

    In any event, I think that we should avoid trying to build an exemption to public accommodation laws around that idea, or “religious belief” in any sense. A cleaner, non-religious solution exists, has been used and test over the last fifty-odd years, and will suffice.

    • posted by Lori Heine on

      I think most of the people clamoring for “religious exemptions” and crying about their “religious freedom” will come to the same conclusions.

      If we accomplish nothing else, we can accomplish that.

      • posted by Tom Scharbach on

        I agree, and I agree that it is worth accomplishing.

        • posted by Mark on

          I agree there is and has been for a long time a moral component in buying (anti-gay groups recognize it as well–in their boycotts of Home Depot, Starbucks, Disney, etc.).

          What I was trying to get at in my comment is how ahistorical–at least in the era of public accommodations–is the argument that there’s a moral component for businesses, or their employees, in how customers will use the goods and services they purchase from a business.

          Taken at face value, the anti-gay baker in Colorado claims that he’ll sell a cake to a gay customer for a birthday party, but not for a wedding reception. I can’t think of any precedent (before 2008 or so) for the argument that a business owner can assert that his religious beliefs are violated (or affected in any way) by *how* a customer chooses to use the good or service that the customer purchases.

          What disappoints me about the Sanchez article (Stephen is hopeless on this point) is his refusal to recognize just how revolutionary the current religious exemption argument is. I suspect there was such a public backlash to the AZ law because most people–who don’t follow gay rights issues closely–were repulsed by the idea that businesses can pass moral judgment on how customers use the goods and services that they purchase. And I suspect they recognized that if this novel new argument were applied to heterosexuals, too, the result would be that lots of people could find that some businesses would turn them away.

          • posted by Tom Scharbach on

            Taken at face value, the anti-gay baker in Colorado claims that he’ll sell a cake to a gay customer for a birthday party, but not for a wedding reception. I can’t think of any precedent (before 2008 or so) for the argument that a business owner can assert that his religious beliefs are violated (or affected in any way) by “how” a customer chooses to use the good or service that the customer purchases.

            I’ve been thinking about this, and I think you are right. It is a perspective on this issue that has gone missing in the discussion, on both sides, not just on the anti-equality side. I’m not clear about how we should address the radical shift in the cultural understanding about what it means to do business in this country, but I think that it something that we should address.

            Along those lines, another radical shift is the assertion that corporations and other legal constructs under which we do business can hold religious beliefs. The proposed Oregon law is typical, defining “person” to include “sole proprietorships, nonprofits, corporations, associations, firms, partnerships, limited liability companies, or other legal entities” and then shaping the exemption around “a person’s deeply held religious beliefs”.

            Taken at face value, the language (ubiquitous in the proposed laws that I’ve looked at), means that as a matter of law, a corporation or other business entity is deemed capable of holding “religious beliefs”, independent, for legal purposes, of the views of the human beings owning or directing the business entity. If that is where we are headed, that is another radical shift.

            My initial reaction is “ridiculous”. But we are moving fast forward to that result in other areas of law (corporations and other business entities have been granted First Amendment protection under Citizens United, a right held legally independent of any human owning or directing the entity), so it isn’t as far-fetched as it might seem.

            I don’t know where that shift in law will lead, either, but it is a radical change in perspective.

  5. posted by Doug on

    By showing the irrationality of endorsing values by doing business either as a seller or buyer it further points out that the only reason for these religious exemption laws is bigotry. This is doubly so given that the only apparent ‘sin’ applicable is homosexuality and not the multitude sins out there. By arguing for the endorsement of values angle the evangelical christians may have boxed themselves into a corner of rank hypocracy since the endorsement of values only applies to one ‘sin’ and not all ‘sin’.

  6. posted by Tom Scharbach on

    Like racism, the homophobia won’t go away, but its practitioners will place themselves on society’s fringes, for whatever satisfaction that provides them. A critical part of Sanchez’s argument is that this is already where most homophobes are, and he’s not wrong.

    I’m not so sure that either racism or homophobia is relegating itself to the fringes of society. Racism continues to run strong, if under the surface, in many areas of the country. Anti-Semitism continues to run strong, if under the surface, in much of the country. Homophobia continutes, and will continue, to run strong, if increasingly under the surface.

    If you doubt any of those statements, then I would suggest that you get out of the urban safe zones and spend a few months — long enough so that folks don’t clam up around you — in “Red America”. You’ll hear a enough racism, anti-Semitism and homophobia — soft-core, but still core — to convince you. We can’t change that through law, and it is not the goal of “equal means equal”. The goal of “equal means equal” is to put gays/lesbians on an equal footing — under the law and under the Constitution — with every other citizen.

    “Equal means equal”, unlike societal acceptance of homosexuality, is something we can achieve.

    We have already done so in many areas, and are making progress in others. We have created a legal environment in which police no longer raid our bars and toss us in jail for public indecency. We have created a legal environment in which our relationships are not criminalized. We have come a long way toward creating an environment in which we cannot be fired because we are homosexuals, and for no other reason, although we have a long way to go, still. We are creating a legal environment in which violence against gays and lesbians is taken seriously, and prosecuted as often as not, instead of being dismissed with “You brought it on yourselves …”.

    And we will, sooner than many of us thought possible, succeed in obtaining marriage equality, the cornerstone and keystone of “equal means equal”.

    Will “equal means equal” help lessen homophobia, relegate it to the undersurface of American culture? Probably, if our experience is similar to that of other classes that have fought for and obtained legal equality. When law no longer sanctions unequal treatment, but instead mandates equal treatment, attitudes change. Law has a probative value, which is a fancy way of saying “Take the body, and the mind will follow.”

    We have made a lot of progress on that score, and more and more straights are standing up in the face of open homophobia, putting a stop to it at the source, increasingly driving it underground, just as racism and anti-Semitism has been driven underground. Racism and anti-Semitism have gone soft-core, masked if you will, which in and of itself signals that it is not acceptable. So will homophobia, over time. That doesn’t mean that it won’t continue to exist, but it does mean that will be increasingly understood to be frowned upon.

    Within that context, I think that Sanchez is right that open defiance of public accommodation laws with respect to gays and lesbians is increasingly being driven to the fringes, just as open defiance of public accommodation laws with respect to African-Americans, Hispanics, Jews and other protected classes has been driven to the fringes.

    With that understanding, let’s look Sanchez’s core argument — because open defiance of public accommodation laws has been relegated to the fringes in most areas of the country, we should accommodate a minimal level of open defiance around the edges of the law.

    I agree, but I have two caveats:

    (1) Accommodating fringe defiance to public accommodation laws does not mean that we should celebrate the defiance. We do not have to elevate defiance to protected status under the guise of “religious belief” or “defending what is principled and true”, nor do we have to enshrine moral disapproval of homosexuality in our laws. We can accommodate fringe views by carving out exemptions that do not accord societal approval, just as we have accommodated the fringe in public accommodation laws as the laws apply to housing, using the law to say, in essence, “We will accommodate your resistance, but we will not signal approval by clothing it in the garments of principle, truth and nobility.”

    (2) Accommodating fringe defiance to public accommodation laws does not mean that we should abandon “equal means equal”. If we are going to accommodate fringe defiance to public accommodation laws with respect to ourselves, we should demand that the accommodation apply to other protected classes on an equal footing. If we are going to allow the fringe to opt out of public accommodation laws with respect to our marriages, as I think we should, we should nonetheless insist that the fringe be accommodated with respect to interfaith marriages, interracial marriages and other forms of marriage that are unacceptable to fringers.

    As far as I can tell, the best way to achieve both goals is to carve out a “de minimis” exception to public accommdation laws generally — define a threshold under which public accommodation laws do not apply.

    I don’t expect that to happen, because social conservatives don’t want it to happen, and social conservatives continue to control the Republican Party.

    Social conservatives do not want a practical, pragmatic solution. Social conservatives want to use exemption laws to make a statement about homosexuality. That is something that I think we should resist, however legitimate and sensible carving out a level of accommodation might be.

  7. posted by Antidiscrimination laws: it’s all or nothing | The Purple Elephant on

    […] mirrors my own thinking. (For other thoughts on Sanchez’ piece see David Link’s also-terrific post at IGF Culture Watch.) For those who haven’t read it, Sanchez argues essentially that […]

  8. posted by Doug on

    I think we should continue to show the hypocrisy of the ‘public exception’ in that it apparently only applies to one particular ‘sin’ and not to all sins. Tie the religious right down and make them explain why one particular sin is ‘worse’ than another sin and how it is worse. Also engage on the question of selling something implies endorsement of a particular moral value but why affirmatively going into a store and purchasing does not endorse the sellers moral values.

    The more we show the hypocrisy of the evangelical position, the more difficult it will be to convince legislatures to vote to approve laws that allow discrimination.

    I think we framed the debate in Arizona quite correctly and public opinion was on our side and it forced a veto.

    • posted by Don on

      Regrettably, soundness of a law is never the first concern of a lawmaker. Politics are always the first concern. If they can pass the buck of a popular, yet clearly unconstitutional law to the judiciary, they are glad to do it.

  9. posted by Don on

    I think the reason why racism, anti-Semitism, sexism what have you lingers on (to varying degrees) in society is something much more basic in the way we’re wired. “Birds of a feather” kind of wiring. I have no science or study to back this up, but I do see it everywhere. Maybe it’s confirmation bias on my part. Still, there is something going on that keeps some identities from fully integrating.

    I’m just starting to realize that we may be on the cusp of an entirely new venue for the culture wars. Evangelicals surely would love to get big business on their side rather than constantly defending against Disney and Starbucks. But I’m not sure I see a way for that to work out. Most “moral” calls by corporations are really marketing ploys for “good corporate citizen” kind of stuff. I just don’t see the profit motive behind divide and conquer.

    Then again, there is much in the news today that I simply could not have imagined 25 years ago.

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