Out actress Ellen Page has garnered much publicity for her impromptu debate over gay rights with GOP presidential candidate Ted Cruz at the Iowa State Fair. But what did she choose to go on the offensive about? No, not Cruz’s support for a constitutional amendment to roll back gay marriage, but his defense of religious freedom for conservative Christian bakers, florists and other service providers.
I’m continually shocked at how tone deaf activists-minded gays and lesbians of the leftish persuasion are on this issue, cavalierly dismissing religious freedom as nothing put an attempt to allow discrimination against gays, period, end of story. If only we can get rid of religious freedom, well, then we’d be set. Progressive government would tell everyone what to do and, you know, that would be keen.
But a majority of Americans don’t believe small, independent business owners should be forced to provide services to same-sex weddings against their religious beliefs (that is, self-employed private business people, not government civil servants. And there is, or once was, a difference here). Many of those supporting religious freedom for those who have religious objections to same-sex weddings are themselves ok with same-sex marriage. They’re not bigots. The intolerance is on the other side.
More. John Corvino writes in the New York Times Gay Rights and the Race Analogy:
When civil rights laws were passed, discrimination against blacks was pervasive, state-sponsored and socially intractable. Pervasive, meaning that there weren’t scores of other photographers clamoring for their business. State-sponsored, meaning that segregation was not merely permitted but in fact legally enforced, even in basic public accommodations and services. Socially intractable, meaning that without higher-level legal intervention, the situation was unlikely to improve. To treat the lesbian couple’s situation as identical — and thus as obviously deserving of the same legal remedy — is to minimize our racist past and exaggerate L.G.B.T.-rights opponents’ current strength.
John comes down somewhere between my view that no one self-employed in the private sector should be forced to provide services that violate their religious beliefs and the activists who believe they should. He writes:
Currently, the jurisdictions most likely to prohibit sexual-orientation discrimination are those where such laws seem least needed; cities where rainbow banners far outnumber Confederate flags. But what about places where being openly gay is literally unsafe? There it’s much harder to rely on market forces and social pressure for ensuring equality.
How pervasive or intractable does discrimination need to be before we should invoke the long arm of the law to solve it? I don’t have a simple formula for answering that question. I’m wary of those who do.
27 Comments for “Freedom Means Freedom for Everyone”
posted by rusty on
so we get to have folk like Josh Duggar to impose his religious beliefs on us and we get to be subject to whims and interpretations when it comes to commerce
posted by Tom Scharbach on
I wondered for a moment why it was necessary for us to make yet another trip round this seemingly endless loop, but then I realized that the RNC recently passed a “Resolution in Support of The First Amendment to the U.S. Constitution”, reading in relevant part: “Resolved, The Republican National Committee urges Congress to pass and the President to sign The First Amendment Defense Act to protect the rights of believers to equal treatment by the government of The United States of America.”
Although the RNC’s rejection of two other anti-gay resolutions was ballyhooed far and wide [see, for example, “Glimmers of Change for the GOP”
by Stephen H. Miller on August 5, 2015], the RNC’s adoption of this resolution was not publicized, not becoming public knowledge until about a week later, when a conservative Christian outlet, responding to dismay among its readers about the two resolutions were rejected, offered up this resolution as evidence that the RNC hadn’t yet gone completely over to the side of Beelzebub.
The First Amendment Defense Act, predictably, protects one and only one exercise of “religious freedom”:
Now that it seems certain that the 2016 Republican platform will endorse government sanction of special discrmination against gays and lesbians, giving preferential treatment to moral and religious objection to same-sex marriage while refusing to any protection at all to moral and religious objection to remarriage after divorce, inter-racial marriage, inter-religious marriage, inter-denominational marriage or other forms of marriage, I guess we are locked in to more and more discussion of this topic.
A comment to an earlier iteration of this argument [“Turning Victory to Defeat” by Stephen H. Miller on July 18, 2015] pretty much sums up my attitude:
I would be more likely to take the pile-on of so-called “libertarians” pounding the drum for a religious objection exemption to public accommodations laws in the case of same-sex marriages seriously if the “libertarians” would discuss religious objections to inter-racial marriage, inter-religious marriage, inter-denominational marriage, and remarriage after divorce, comparing and constrasting the situations, and explaining why religious objection to same-sex marriage deserves an exemption to public accommodations laws but none of the other cases do.
Ignoring those questions is not without significant cost. Allowing the government to single out particular religious beliefs for special accommodation, while refusing the accommodation to other, equivalent religious beliefs opens the door to de-facto establishment, and by doing so, weakens First Amendment protections. The potential cost is too high to mindlessly (and yes, Stephen, I do mean you and others who ignore the basic questions I insist on asking) to advocate that the the government deem a particular religious objection worthy of government protection while deeming other, substantially similar, religious objections unworthy of government protection.
posted by Jorge on
If there are other expressions of religious liberty that are under attack, then I would say it would make sense for Congress to try to overrule more than one attack simultaneously. But the legislative branch has the power and the right to overrule judicial decisions that are based on a misreading of statutory law, such as a recent court decision ordering a state clerk to issue same sex marriage licenses without providing any religious accommodation to her. I don’t know if the wedding cake or wedding photographer cases have reached a judge yet–those are more clearly based on statutory law.
Sometimes a counter-attack is just a counter-attack. That is why no one is questioning Cruz on the Federal Marriage Amendment.
posted by Mike in Houston on
Dear Stephen,
Let’s set aside the constant shifts of your definition of ‘freedom’, ‘religious liberty’ and even when and how it applies to ‘private’ businesses – given that with this post you’ve narrowed it to basically any small, privately owned personal contracting companies.
You seem to posit that Rafael Cruz’ position of “gay bakers have the right to refuse service to Christian bigots”… I’ll go along – if will acknowledge that the Civil Rights Act needs to be amended to delete any reference to discrimination based on religion or creed.
Without that change, you and your quisling homocons are advocating 2nd class citizenship for LGBT Americans because we CAN’T reciprocate – and Rafael (and you) damn well know this.
posted by Doug on
Freedom Means Freedom for Everyone . . . . . except the LGBT community that will continue to be discriminated against in Stephen’s world.
posted by Lori Heine on
Another ride on this rollercoaster. I want to protect all freedom of conscience. We can’t be a free people without it. But why is the conversation being narrowed to the protection of one particular, rapidly-shrinking subset of one religious creed?
The IGF treatment does NOT deal with freedom of conscience in a broad sense that applies to everybody. It restricts the discussion to very narrow parameters. Again, why? Because the RNC wants it that way?
I suppose I just answered my own question.
posted by Tom Scharbach on
I suppose I just answered my own question.
You did, indeed, Lori.
The conservative Christian base has no interest in promoting meaningful accommodation of religious/personal conscience. It is interested only in preserving and continuing the cultural monopoly of Christianity in our culture. Anything that threatens the cultural monopoly is characterized as “persecution” of Christians and determination to crush Christianity.
I was reminded of this yet again yesterday, while I was helping my conservative Christian neighbor build a shed.
He was quite upset about the latest “persecution” of Christians, an accommodation for Muslim football players at Fordson High School in Dearborn, Michigan. Because almost all players on the school’s football team are Muslim, forbidden to drink or eat during daylight hours during Ramadan, the school rescheduled the two practice sessions falling in Ramadan for the evening hours, when the fast is broken.
To me, this is a reasonable accommodation. To my neighbor, this is another example of how Christians are “persecuted” in our country, by which he means that other religions are accommodated.
He carried on about it to the point where I finally, exasperated, asked him when was the last time a public school held class on Christmas. That was a mistake, because it set him off on a whole new track, complaining that Christians were “persecuted” because … well, you know, because you deal with these folks on a regular basis, just as I do.
The conservative Christian base is a real problem for the Republican Party, which is desperately trying to find a way to accommodate them without screwing up their chances in the 2016 general election. Good luck to them, but passing a half-assed law that actually weakens, rather than strengthens, protection of religious/moral conscience is a cure worse than the disease.
You get that, and most others commenting on IGF get it, too. Stephen doesn’t. He won’t even think about it, apparently, because he doesn’t write about it.
posted by Jim Michaud on
Gee Stephen, you’ve repackaged this “religious freedom” meme more often than Capitol Records have repackaged Beatles recordings. Again, I ask: do you even read the comments? Many people here have posted rebuttals to this rehash of yours ad nauseam.
posted by Tom Scharbach on
… that is, self-employed private business people, not government civil servants. And there is, or once was, a difference here …
This observation provides a good example of “mission creep” by conservative Christians. The most recent cases of supposed destruction of “religious freedom” have involved county clerks, judges and other public officials. The distinction has become blurred.
posted by Tom Scharbach on
I’m continually shocked at how tone deaf activists-minded gays and lesbians of the leftish persuasion are on this issue, cavalierly dismissing religious freedom as nothing put an attempt to allow discrimination against gays, period, end of story.
The primary effect of sanctioning religious objection to public accommodation laws in the case of same-sex marriage alone is to give government sanction to special discrimination against gays and lesbians, but a secondary (but nonetheless important) effect is to give government sanction to discrimination against Catholics who object to remarriage after divorce, Jews/Muslims/Catholics who object to inter-religious marriages, Christian Nation adherents who object to inter-racial marriages, and so on.
The government has no legitimate business elevating particular religious beliefs above others, and if we are sufficiently unwise to enact such laws, it won’t be long before the question is brought before the courts by the religious adherents left behind in this nonsensical rush to protect the religious beliefs of conservative Christians in the case of same-sex marriages.
To prevail when such a challenge is brought, the government is going to have to demonstrate a solid, probably compelling, non-religious government interest in elevating one religious objection to marriage over another.
It might be prudent for Stephen and other Republican-aligned “libertarians” to address this issue at the get-go, lest they end up in the shoes of David Blankenhorn, who ended up looking like a moron when his “objective” rationale for marriage discrimination was put to the test.
posted by Tom Scharbach on
When civil rights laws were passed, discrimination against blacks was pervasive, state-sponsored and socially intractable. Pervasive, meaning that there weren’t scores of other photographers clamoring for their business. State-sponsored, meaning that segregation was not merely permitted but in fact legally enforced, even in basic public accommodations and services. Socially intractable, meaning that without higher-level legal intervention, the situation was unlikely to improve. To treat the lesbian couple’s situation as identical — and thus as obviously deserving of the same legal remedy — is to minimize our racist past and exaggerate L.G.B.T.-rights opponents’ current strength.
An identical argument can be made with respect to women, racial and ethnic minorities other than African-Americans, religious adherents, and the other groups covered by public accommodations laws in almost all states.
In fact, none of those groups can lay claim to anything like the government-sponsored discrimination directed at gays and lesbians over the years. None have faced the equivalent of sodomy laws. None have been banned from military service, or subject to imprisonment if caught in service. None have been the subject of pervasive, systemic government harrassment — police harrassment, laws banning public gatherings, laws making it a crime for bars to serve them drinks, and so on. None of those groups have been the subject of laws and constitutional amendments banning them from marriage.
I have never argued that the LGBT rights movement was identical to the African-American rights movement, but our experience comes a lot closer to the African-American experience than any of the other groups covered by public accommodations laws.
So why is it again that gays and lesbians, and gays and lesbians alone, are being singled out for special, state-sanctioned discrmination in this case?
And why is it so important to protect conservative Christian business owners against having to serve gays and lesbians in the context of providing goods and services to same-sex weddings, when protecting business owners against having to serve others in the context of providing goods and services to other weddings which are religiously objectionable?
And why is it so important to pass laws granting a religious exemption to public accommodations laws with respect to same-sex weddings in states where public accommodations laws don’t cover gays and lesbians in the first place, such as Arizona and Indiana?
The “religious freedom” movement is a farce.
posted by Tom Scharbach on
A clarification:
should read
posted by Jorge on
In fact, none of those groups can lay claim to anything like the government-sponsored discrimination directed at gays and lesbians over the years.
I disagree.
Women had no rights in the US Constitution at all when it was ratified. Enlightened legal thinking such as the “rule of thumb” prohibited only a certain degree of brutality by husbands against wives, but explicitly permitted domestic violence by men so long as they did not strike a woman with an object thicker than a thumb.
Virtually every single racial/ethnic group in the United States, including whites, has experienced discrimination in public and private education.
Puerto Ricans on the island lived under imperialist colonial oversight by the US military until the 1950s. I mean imperialist in the most ruthless sense of the word. It is not without reason that a terrorist movement grew out of Puerto Rico.
The gay community never grew a terrorist movement, but both the black and white mainland communities did, for reasons that, while not identical, I think do overlap. But speaking again of education, the effects of institutional discrimination, indeed, even the fear of being confronted with it in kind, really can’t be underestimated. Not all groups in this country resort to homegrown terrorism in the face of anomie and institutional heartlessness. Most just lay down and become statistics.
I think your position betrays too strong a bias toward anti-discrimination intervention for you to give credit where it is due to those who will never enjoy those remedies so strongly and directly.
posted by Tom Scharbach on
I think your position betrays too strong a bias toward anti-discrimination intervention for you to give credit where it is due to those who will never enjoy those remedies so strongly and directly.
I think that you are missing the point, or at a minimum, paying little or no attentio to what I’ve actually written:
My argument is, and has consistently been, that no “religious conscience” exemption under public accommodations laws covering sexual orientation as well as the usual categories (race/ethnicity, religion/creed/cult, gender, age, disability) should be granted with respect to opponents of same-sex marriage, unless a “religious conscience” exemption is also granted with respect to all other forms of marriage to which there are religious objection (inter-racial marriages, inter-religious marriages, inter-denominational marriages, remarriage after divorce, an so on).
In addition, I’ve argued in favor of a broad personal conscience exemption to laws, in essence applying the Sherbert test to all laws in a manner that is religion-neutral (applies to both religious and non-religious exercises of personal conscience), issue-neutral (applies to all laws, and/or, if a subset of laws is covered, to all instances within the subset), and class-neutral (applies to all protected classes, if applicable).
The proposed “bakers, florists and photographers” laws typically flunk all three tests — protecting only religious conscience, applicable only to same-sex marriage, and applicable only to gays and lesbians.
posted by Tom Jefferson 3rd on
I would be surprised if this meeting was totally unscripted, given the fact that the responses have been far too predictable.
It is possible that a celebrity does not have the legal training to understand how civil rights laws are written and what sort of exemptions have traditionally been in place. It is a pretty complicated, nuanced and sometimes tedious legal avenue to study.
However, a serious presidential candidate has staff (not to mention lawyers) who can research these sorts of things. Ted’s mistakes with regards to the religious freedom bill are less a case of being a lay person and more about being a politician.
posted by Mike in Houston on
It is more than apparent that Stephen and his quotable John Corvino have no real experience, legal expertise or practical experience in this area…
I love how homocon apologists keep flogging this idea that because it’s not raining where they are, rain doesn’t exist.
posted by Doug on
Homocons like most right wing evangelicals live in their own little bubble which is rarely in sync with the real world outside their bubble.
posted by Houndentenor on
Excuse me if I can’t find any sympathy for a baker who refuses to bake a cake when I can be fired from my job for being gay. If the religious right wants to talk, I’m all ears, but if they are going to continue to fight against very real discrimination against gay people, I will not bother to pretend to be concerned about their imaginary persecution.
posted by Mike in Houston on
As long as this keeps happening, then I would kindly ask Stephen to please STFU:
http://www.towleroad.com/2015/08/houston-hate/
posted by Tom Scharbach on
He won’t STFU, and he won’t respond to arguments related to the dangers presented by (1) government sanction of selective discrimination affecting gays and lesbians, and gays and lesbians alone, (2) government protection of religious objection to same-sex marriage, while refusing protection to other, similar/equivalent religious objections concerning other forms of marriage, (3) the political/societal cost of treating gays and lesbians differently than other citizens, and (4) the practical/legal inefficacy of the so-called “religious freedom” laws being hawked by his fellow Republicans.
Stephen has been singing his version “religious freedom” song so long that it is fast becoming an earwig.
posted by Jorge on
“Houston Haters Launch Website”
Wow. Scary.
I liked Houndentenor’s argument better.
posted by Stuart on
Is it really that hard to find a gay baker? Or florist?
posted by Doug on
Depending on where you live, yes it may indeed be difficult to find a gay baker or florist. If you live in a good sized city, not so much.
posted by Fritz Keppler on
And besides, in a small town a baker or florist may well be gay, but may feel obliged to try to hide the fact by denouncing or deriding any gay customers who come to purchase goods or services, thinking that such actions may divert unwanted local attention from him- or herself. Such things have been known to happen.
posted by Tom Scharbach on
It isn’t all that easy to find any baker in rural areas. I checked a while back, and if I recall right, we have 3-4 bakers who do wedding cakes within a 40-mile radius of my house in rural Wisconsin. Not counting Walmart, of course. Around here, you have to get up into the 8-10,000 range before a town will have a bakery. Go out another 20 miles, though, expanding the radius to 60 miles, and we’ve got quite a few more, because Madison, with a population of 150,000, has a bunch of bakers.
For the most part, I have the impression that homocons, safely tucked away in urban areas protected by public accommodations laws, aren’t affected much by conservative Christians and their anti-gay attitudes. But a lot of gays and lesbians do live in rural areas, for good reason, and we live in a different socio-cultural environment.
But the “can’t you just go find a gay baker” line of thinking misses the point. The question isn’t whether gays and lesbians can find alternative sources of goods and services, even in rural areas, or the question of whether or not public accommodations laws are a positive or a negative, or the question of whether or not sexual orientation should be included as a protected class (which it is in a minority of states at present). The question is whether or not a “religious” exemption, covering same-sex marriage but nothing else, should be a carve out to public accommodations laws in the states that have them and include sexual orientation as a protected class.
Homocons seem to spend at lot of time and energy avoiding that question, talking about everything else under the sun.
posted by Mike in Houston on
Why the hell should I have to try?
Should I ask when I make a reservation for dinner to make sure my wait reason is ok with serving my party?
What part of the Christians who disapprove of X have the special right to discriminate do you agree with?
posted by Stuart on
Who are all these straight waiters, bakers, and florists you are talking about? It’s like finding the one Liza Minnelli impersonator who won’t play gay weddings.