the New York Times have an opinion piece arguing that fans who own businesses should be allowed to refuse to sell LGBTQ customers the same products and services as other customers. Tish Harrison Warren, who writes a newsletter for the newspaper on “faith issues in private life and public discourse” (and who is a “rising star in christian spiritual writing”) is arguing an upcoming Supreme Court case on whether a web designer who creates web pages for clients’ weddings should cater to all clients equally or can refuse to create wedding pages for LGBTQ people.
Warren says the question the case raises is: “How committed are we to true pluralism?” While he believes that LGBTQ people should have certain legal rights, he believes that “pluralism” means that we should “[allow] religious people who adhere to historical teachings on sex and marriage in order to freely practice their faith.” That means “the government should not take sides in these intra-religious debates” over the morality of same-sex marriage. Instead, “law-abiding people have the right to live according to their conscience,” which means that the government should not “force” someone to express a message to which they have a religious objection. Therefore, the religious web designer should have the legal right to refuse the creation of same-sex wedding pages. To decree otherwise would be an attack on freedom of conscience.
A similar argument was made several years ago by stalwart scholar (and prominent opponent of same-sex marriage) Sherif Girgis in The Public Discourse. There, the issue was whether a Christian baker should have to make cakes for gay weddings. Girgis said there was an unanswerable argument in favor of the baker: the government cannot force artistic expression, and “by forcing [the baker] to bake a same-sex wedding cake, [the state] compels him to (1) create First Amendment expression (2) with a message that he rejects…this coercion serves no compelling governmental interest and is therefore unconstitutional.”
This argument, which is strength Y coercion Mandating equal treatment of LGBTQ customers seems very convincing to those who believe it. Warren believes that her position is completely compatible with respect for LGBTQ rights and that she is simply an advocate of tolerance and “pluralism.” However, the weakness of the argument is exposed the moment we start thinking seriously about analogous situations.
The obvious response to Harrison and Girgis is: what would they say to someone who opposes interracial weddings and refuses to bake cakes or design couples’ websites if the two partners are of different races? The racist could invoke all the same principles: they have a deeply held conviction, they don’t want to be “coerced” into claiming respect for something they don’t respect, and the government shouldn’t be in the business of deciding which beliefs are correct. Girgis reminds us that the point of the First Amendment is to “protect those choices of [speech] contents that in the eyes of someone are wrong, or even hurtful”. The racist baker will say that his speech falls precisely in that category.
The analogy of the racist baker may be disconcerting to those who defend the homophobic baker. When Jordan Peterson told comedian Jim Jefferies that “making” a baker make cakes for same-sex weddings was a bad idea, Jeffries asked if Peterson thought a racist baker should make cakes for black couples. Peterson replied that they should not be forced a, but Jefferies pointed out that this is precisely what the Civil Rights Movement was pushing for: mandatory service for customers of all races. Peterson then concedes that the Civil Rights Movement was right, at which point Jefferies asks how the demand for equal service for LGBTQ people is different. “Maybe it’s no different. Maybe I was wrong about that.”
However, Warren is not as humble or self-reflective as Peterson. she insists that it is differently, and he strongly opposes views that “equate individuals or organizations who hold long-held religious beliefs about sex and marriage with white supremacists.” Racists are different, he says, because their Christian theology was flawed, while homophobes are Right that biblical teaching supports his worldview:
“To justify racial violence and oppression, whites in the United States and Europe essentially invented a new theology, naming it white supremacy. It was racism in search of an ethic. Sexual ethics, by contrast, is named and addressed in religious scriptures in specific terms. Unlike white supremacy, religious teaching about sex, including prohibitions on extramarital and premarital sex, pornography, lust, and same-sex sexual activity, has been a part of the Christian faith since its earliest days. . This is not an aberrational view rooted in bigotry, but a sincere belief that flows from ancient texts and teachings shared by believers around the world.”
Thus, racist (religious) fanaticism is aberrant but homophobic religious intolerance is more legitimate because, according to Warren, homophobia is much more deeply rooted in the Christian religious tradition and in the biblical text.
This is not a very persuasive answer, because it can be met with a very obvious objection: why does “history” determine what forms of intolerance are acceptable? The homophobia of a Christian is more legitimate because it is ancient? If you were to found a racist religion, wouldn’t you get the same protection for your bigotry because Christians have held their particular preferred prejudices longer? If my racist religion takes off, at what point does it become enough of a tradition to earn me an exemption from otherwise applicable anti-discrimination laws? Homosexuals are out of luck because Warren says they have historically been feared and despised. plus of what they are now?
Attempts to draw distinctions between banning anti-black discrimination and anti-LGBTQ discrimination always end up in these kinds of unconvincing places. (Girgis’ article does not directly address the “racist baker” comparison.) Unless you defend the superior legitimacy of homophobic bias over racial bias, it is not clear why one deserves legal protection and the other does not. Of course, some on the right are consistent and simply believe that all discrimination should be legal. Many libertarians believe that the right of property owners to decide what to do with their property is more important than the right of blacks to receive the same service. paul-rand has attracted controversy for comments suggesting that the 1964 Civil Rights Act, which forced private business owners to provide the same service to black customers, may have been an unlawful intrusion on freedom of association. But even Paul will not support getting rid of the prohibition of private racial discrimination in markets.
However, how would we respond to someone who said that while they personally oppose discrimination, they don’t think the government should strength private business owners to not discriminate? One point, of course, is that putting this ostensibly freedom-loving principle into practice would have meant leaving much of the Jim Crow system in the American South. But it’s also worth noting how trivial the “coercion” supposedly involved in anti-discrimination laws actually is. For all the fuss made by the baker and the web designer about how the government is forcing them to violate their religious beliefs, let’s think about what the law is actually doing when it mandates equal service. All he’s saying is that Yes If you choose to enter a particular line of work, you are not allowed to pick and choose your clients based on race, gender, or sexuality. No one is forced to start a career as a wedding cake or wedding website designer, but if you do, there is one simple condition, which is that you must provide the same service. This condition exists because we believe in the right of people not be discriminated against because of your race, gender or sexuality is more important than the right of a fanatic to practice his fanaticism. (Customer rights are often left out of these conversations entirely, as if the topic were “business owner rights” vs. “anti-discrimination” rights when it’s better to think of “business owner rights” vs. “customer rights” ).
If you didn’t want to have to make LGBTQ wedding websites, there was a very easy way to avoid being “coerced”: not start a career as a wedding website designer. The condition for choosing such a career is non-discrimination, and it is not very difficult to fulfill. Warren, in his article, says that forcing the designer to serve everyone equally is like forcing a pro-abortion poster artist to design posters for pro-life rallies, but it’s only the same if the distinction collapses. between discrimination against marginalized groups and others. types of political discourse. We all agree (with the exception of radical libertarians) that there is an acceptable category of coercion when it comes to enforcing the rights of people in historically discriminated groups to equal treatment in the marketplace. The question is whether “don’t serve a same-sex couple as a web designer” falls into the same category as “don’t serve a black couple” or the same category as “refuse to produce banners for the NCR if you’re a Democrat.” .” If you consider homophobia more legitimate than racism (as Warren does), then you might place it in the latter category, but those who find both equally abhorrent will easily distinguish between bigoted behavior in a marketplace and political discourse.
It’s kind of sad to see the liberal New York Times executing a defense of legalized discrimination. One expects these things from Wall Street Journal opinion page. Fortunately the Times has added another item by the ACLU legal director clearly explaining why discrimination against underserved clients is not a First Amendment right. But this argument that “freedom” means the right to be denied equal service is much more persuasive than it should be, and you hear it even from those, like Warren, who insist they have absolutely nothing against LGBTQ people. We must be clear: demanding equal service is not secularist Stalinism or a violation of rights. Is he app of the basic right of all people to be treated fairly when dealing with business facing the public.
An expanded version of this argument appears in my next book. answering to the right.