Imagine that Stan, a congregant of no particular church, thinks the Jews killed Christ, and would prefer not to sell nails to Jews at his local hardware store, because he wants to adhere to his belief that Christ-killing is wrong and that the Jews to this day are morally responsible for it.
Or imagine that Wayne, who owns a local Denny's franchise, believes based on his self-directed study of the Bible and 19th-century interpretations thereof and the encouragement of his peers that African-Americans are the heirs of the imagined Curse of Ham, and shouldn't be seated in his restaurant with the heirs of Shem and Japheth, and should be seated instead in a separate and inferior section of the restaurant, if he must seat them at all.
Or imagine that the Gulnare Free Will Baptist Church runs a shaved-ice stand at the local county fair, and would prefer not to sell shaved ice to multi-racial couples or families visiting the fair, because its membership disagrees with race-mixing.
Federal anti-discrimination laws prevent Stan and Wayne and the GFWBC from implementing their beliefs when they sell goods and services to the public at large. So do many state and local statutes.
This generates relatively little outrage. Politicians do not campaign against anti-discrimination laws on the premise that the dilemma of Stan and Wayne and the GFWBC presages increasing loss of freedoms. People like Stan and Wayne and the GFWBC sue quite infrequently in an attempt to win a right to discriminate in providing public services, and don't get much support when they do. In "mainstream" publications, few angry columns are written about their plight. A few people will assert that anti-discrimination laws like those that restrain Stan and Wayne and the GFWBC are unconstitutional and unworkable, but will not articulate that belief with much heat or light.
Compare that to the response to the assertions of Jack Phillips of Masterpiece Cakeshop in Lakewood, Colorado.
Jack Phillips and Masterpiece Cakeshop refused to make a cake for David Mullins and Charlie Craig, who sought a Colorado celebration of their Massachusetts marriage. The Colorado Attorney General has filed a complaint against Philips and Masterpiece Cakeshop before the Colorado Civil Rights Commission. That decision has spurred outrage and warnings of the loss of personal freedom of conscience. Philips' lawyer has skillfully manipulated the outrage, pronouncing that Phillips faces a year in jail for following his conscience — by which he means that a court could order Phillips not to discriminate, and in Colorado defiance of such an order could potentially lead to a prosecution that could potentially yield a prison sentence.
My question is this: is there a principled reason that some people are outraged when anti-discrimination laws are applied to forbid discrimination against gays, but not to discrimination against Jews, or African-Americans, or any other group?
Is there a principled reason that people will assert that a baker should have a right to refuse service to a same-sex couple, but not take the next step and say that the baker should be able to refuse service to anyone — including based on race or religion — according to his or her conscience?
Is the answer merely that anti-gay religious sentiment is relatively mainstream, but racist or racial separatist religious sentiment is steadily more and more marginalized and unusual in American society? In other words, is the defense of Jack Philips a plea for preferred treatment of a favored religious belief? Or would Jack Phillips' defenders be equally willing to defend Stan, and Wayne, and the GFWBC? Is the relatively narrow defense of the Jack Phillips of America a matter of a principle subject to articulation, or is it a matter of political calculation — a belief that Americans might agree with a right for a merchant to discriminate against gays, but not a right to discriminate against Jews or African-Americans? Is there an ideal at hand more principled than "society should allow the types of discrimination in which I, personally, might want to indulge"?
Statutory and Constitutional rights frequently conflict. There is an inherent tension between anti-discrimination laws, on the one hand, and the rights of free association and free exercise of religion, on the other hand. Recognizing that tension is simply being honest about the structure of rights acknowledged by our society; it doesn't dictate one outcome or the other. Even vigorous libertarians reach different conclusions on the subject.
But if someone makes a rights-based objection to application of an anti-discrimination law — whether based on free exercise of religion, or freedom of association — I think it's reasonable to ask whether the objection is consistent, or a case of special pleading. An honest dialogue about the proposed right to discriminate against same-sex couples would examine that right's necessary implications.
Last 5 posts by Ken White
- RIP Abe Doe - October 21st, 2016
- Lawsplainer: The Ninth Circuit and Compelled Speech About Abortion - October 17th, 2016
- Thanks and Congrats To Dhillon Law Group For Important Pro-Bono Anti-SLAPP Win - October 10th, 2016
- Hillary Clinton, the Sixth Amendment, and Legal Ethics - October 10th, 2016
- FIRE Attacks Northern Michigan University's Shocking, Wanton Rule Against Students Sharing Suicidal Thoughts - September 22nd, 2016