News outlets are reporting that the Arizona anti-gay law specifically permitting discrimination on the basis of sexual orientation faces an imminent veto from noted radical leftist Jan Brewer. Nevertheless, it is still getting lots of good press among a certain element of our society; namely, straight, white, Christian men who don't really understand how anti-discrimination laws work.
If they did understand how anti-discrimination laws work, they wouldn't be accusing gay people of having "special rights." But that phrase, trotted out anytime someone is told they can't mistreat someone else for their own arbitrary reasons, is once again seeing lots of press.
Yesterday, it was the National Review. Today, it was a blogger named Matt Walsh, the self-proclaimed purveyor of "absolute truths" which always seem to coincide with his personal preferences, coincidentally. Walsh's piece was distributed widely by fellow conservative Erick Erickson via Twitter.
Several recurring themes persist among the brave defenders of discriminatory "liberty": 1) gay people aren't really mistreated; 2) anti-discrimination laws are "special rights" for homosexuals (but not for other groups like African Americans); and 3) not being able to deny service based solely upon a person's sexual orientation is a horrible affront to liberty.
Walsh quickly covers the first two themes:
We should remember that blacks were in chains in this country. They were literally treated as less than human. They could be legally murdered and beaten and starved. They were set apart, cast aside, and violently and systematically oppressed.
Not only are gays in a better position than this, but the two scenarios are diametrically opposite. Unlike historical blacks, gays are afforded special legal protections. They are celebrated by the president, Hollywood, pop culture, the media, mainstream culture, and most major corporations. They are hoisted on a pedestal by only the most powerful and influential people in the country.
Walsh leads with the functional equivalent of "I'm not racist, but the logical conclusion of my argument totally allows for racist discrimination," and then follows with a series of anecdotes which completely ignore a dark undercurrent of societal abuse in which gay people have been murdered, beaten, set apart, cast aside, and violently and systematically oppressed.
First, Walsh offers no examples of actual "special legal protections." He simply states a series of social niceties which may or may not exist for gay people in America. Where one sees a "celebration" of homosexuals in a redundant list of "Hollywood, pop culture, the media, mainstream culture," someone else could easily see "profit-driven exploitation." But subjective nouns aside, Walsh offers no actual laws which specially protect homosexuals.
Later in the piece, Walsh, like the National Review, hits the third theme by citing the current martyr du jour, the "Colorado Christian Bakery" which was "forced by a judge to bake cakes for gay weddings." This was unfair, because:
The baker didn’t refuse them “because they’re gay.” In fact, he specifically said: “I’ll make you birthday cakes, shower cakes, sell you cookies and brownies, I just don’t make cakes for same-sex weddings.”
He had a problem with the activity itself, not the people participating in it.
This is a remarkable distinction which makes sense only in the minds of people like Walsh and the National Review. But was this really what happened?
Colorado has a statute prohibiting discrimination in public accommodations, including most businesses:
It is a discriminatory practice and unlawful for a person, directly or indirectly, to refuse, withhold from, or deny to an individual or a group, because of disability, race, creed, color, sex, sexual orientation, marital status, national origin, or ancestry, the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation...
Colorado Revised Statutes 24-34-601(2).
This is typical anti-discrimination language and mirrors closely (except for the inclusion of sexual orientation and marital status), the language of the federal Civil Rights Act. The bakery owner runs what Colorado law considers a "place of public accommodation" and he directly refused to provide the full and equal enjoyment of goods and services because of the sexual orientation of his customers. A magistrate judge considered the case, applied the law, and told the bakery owner he could bake a cake for a same-sex wedding or pay a fine. He wasn't "forced to bake cakes" for anyone. He was given a choice under a law which he is bound to follow as a business owner in the state of Colorado: provide a service or pay a penalty. Such is the cost of doing business in that state.
It is critical to note that the Colorado statute doesn't provide anyone "special" rights. It declares certain classifications to be outside the bounds of arbitrary business judgment, and it protects everyone equally. For example, had the bakery owner instead refused to serve straight customers on the basis that they were having an opposite-sex wedding, he would still be penalized under the law. Even if he was piously following the dictates of a malevolent gay deity which demanded that heterosexuals be shunned from society, he would still have to accommodate them or pay a fine. Running a business is not a fundamental right and business owners must adhere to the laws of the state within which they operate.
The biggest misconception about anti-discrimination laws is that they provide some kind of "special" protection to certain "protected classes" of people. This isn't true. Anti-discrimination laws protect everyone from discrimination equally. White men cannot be excluded from public accommodations on the basis of their race or sex any more than can be black women. Black men are not "a protected class" of people entitled to a special legal shield. The protected class is race in general, which cannot be the basis for decisions about who gets to enjoy public accommodations, regardless of what a particular person's race happens to be.
It's ironic that opponents of same-sex marriage often appeal to the "will of the people" any time popular state gay marriage bans are overturned in court as unconstitutional, because those same opponents then decry legislatively passed anti-discrimination laws as affronts to liberty. The Colorado anti-discrimination law was amended to include "sexual orientation" in 2008, by the vote of Colorado lawmakers. Was this a horrible attack on the democratic will of the people? Are those lawmakers, as representatives of the citizens of Colorado, not empowered to enact such laws? The people now decrying Colorado's democratically-enacted anti-discrimination laws are the same people dismissing the overturn of Colorado's democratic but discriminatory past as "judicial activism."
But back to Walsh. His reliance on distinctions without a difference continues:
In none of these cases did the business owner forgo service to a gay person out of some kind of disgust or animosity towards gays. They simply wished to take no part in a gay wedding. To call this discrimination against gays is to make no distinction between the person of a homosexual and the activity of a homosexual.
Walsh either hasn't read the Supreme Court case of Lawrence v. Texas or he just doesn't agree with it. In that 2003 case to which I often refer, a majority of the Court ruled that:
The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime.
539 U.S. at 579.
The Supreme Court has quite clearly stated, in Lawrence and in other cases: the private sexual activity of individuals is part of their very existence, their very destiny. To dismiss sexual behavior as mere activity upon which others may pass exclusionary and harmful judgment is to totally ignore the self-defining intimacy of sexual relationships. Such distinctions between "being" and "activity," like the ones Walsh tries to make, have been dismissed by the Supreme Court as meaningless for the purposes of personal identity.
Good news for African Americans, though. Matt Walsh, a white man sharing "absolute truths," has determined that their past suffering was egregious enough to warrant legal protections. I'm sure that makes them feel much better. However, be mindful that even though he acknowledges their long history of suffering, he still can't resist telling them what to do:
Black people ought to deliver a sound verbal smackdown to any historically illiterate gasbag who even attempts to paint the slightest equivalency between the suffering of blacks and gays.
Walsh finishes the piece with a Moreton Rolleston-esque whine about tyranny, something neither Walsh nor Rolleston ever once actually had to endure. Truly deep is the pain felt by white, Christian men, for their suffering knows no match in the United States of America, always so hostile to the plight of people like themselves.