GLBT Fortnight in Review, September 4, 2013
BY ANN ROSTOW
Discrimination: The Next Big Deal
It sure looks as if we will eventually win the right to marry, and that we’ll do so with the support of most Americans. Even our opponents have switched strategies, and no longer attack gay men and women as deviant. Instead, they promote traditional values and string out a tenuous argument on behalf of children. Those rationales aren’t going very far, however, since marriage equality has no impact on the kids of straight couples, while our kids suffer in its absence.
But there’s another dialogue building decibels around the country. That’s the insistence on the Christian right that gay equality poses a threat to religious freedom, particularly the freedom of Christian business owners to deny service to GLBT clients. Even as we hail the new majorities that back our right to marry, we overlook to some extent the even larger majorities that unthinkingly support the “right” of a Christian entrepreneur to close his or her doors to gay customers.
It seems only fair, right? After all, would you expect a Jewish merchant to serve a Nazi? Would you demand that an African American caterer host a Klan wedding? And why would a gay couple want a hostile photographer hanging around muttering under her breath while taking deliberately bad photos of their wedding?
First of all, you don’t compare the gay client to the Klansman or the Nazi. I mean, come on. Quite frankly, I’m not sure if or how a Jewish photographer could refuse to serve a Nazi bride, but unlike gays, Nazis are not protected under antidiscrimination law. But apart from that, the analogies have to be presented in reverse. Can the Klansman refuse the African American? Can the Nazi refuse the Jew? We are not the evil death squads here, folks. We are the minorities under attack. We have not spent our history hanging Christians from tree limbs or tossing them in gas chambers and yet we hear these outrageous comparisons tossed into the public square whenever a Christian merchant feels threatened.
I had to get that beef out of the way, but more profoundly, Americans have a deep respect for religion, and an even deeper respect for the Constitutional principles that protect our right to practice our faith. We instinctively, and rightly, believe that the government may never compel a citizen to act against his or her deeply held religious beliefs. No wonder that so many of our gay rights bills have included loopholes for churches and religious organizations.
But where do we draw the line between legitimate religious principles and illegal bias? Can someone just “announce” their faith requires them to discriminate? We would not accept that in a racial context. Why does everyone accept this idea where we’re concerned?
The answer is that up until recently, a religious denunciation of homosexuality was accepted, normal and taken for granted. The assumption that disapproval of gays is part and parcel of Christianity has not been seriously disputed, even as this attitude has been relegated to the far right as mainstream Christianity rethinks its stance. Meanwhile, over 80 percent of Americans (you read that right) still believe a Christian business should be allowed to discriminate.
And here is the new hook that our adversaries are starting to emphasize in their continuing and losing battle against our progress. Gay rights and marriage equality are a threat to religious freedom, they say. Gays are no longer the butt of discrimination. Now the real victims are Christian businesses like Elane Photography, the company that has been battling the state of New Mexico for the right to refuse a job at a lesbian wedding.
In Washington, it’s a florist who is fighting to deny service to two men. In Oregon, an antigay bakery has just closed its shop over the same issue. We’ve read about biased bridal shops, country inns and caterers. And each of these cases is trumpeted throughout the far right as a fund raising alert. Your rights are being taken away!
The legal principles, meanwhile, are simple. Governments may not pass or enforce laws that target religions. But they can pass a law that has a general and legitimate purpose, even if a religious practice is inadvertently affected in the process. For example, a law against drug use that prohibits religious peyote rituals can stand. Likewise, a statute that prohibits discrimination in public accommodation, even if it includes sexual orientation, is a general law that serves an important public purpose. If you don’t like gays and lesbians, fine. But you still have to do business with them, just as a racist restaurant owner has to accept all comers.
In New Mexico last week, the state Supreme Court issued a powerful ruling upholding this basic premise. Photography business owners Elaine and Jonathan Huguenin made a range of arguments, to no avail. In his masterful concurring opinion, Justice Richard C. Bosson was more forgiving than I, acknowledging that Elaine Huguenin and her husband “are now compelled by law to compromise the very religious beliefs that inspire their lives. Though the rule of law requires it, the result is sobering. It will no doubt leave a tangible mark on the Huguenins and others of similar views.
“On a larger scale,” he continued, “this case provokes reflection on what this nation is all about, its promise of fairness, liberty, equality of opportunity, and justice. At its heart, this case teaches that at some point in our lives, all of us must compromise, if only a little, to accommodate the contrasting values of others….The Huguenins are free to think, to say, to believe as they wish; they may pray to the God of their choice and follow those commandments in their personal lives wherever they lead. The Constitutional protects the Huguenins in that respect and much more. But there is a price, one that we all have to pay somewhere in our civic life.
“In the smaller, more focused world of the marketplace, of commerce, of public accommodation, the Huguenins have to channel their conduct, not their beliefs, so as to leave space for other Americans who believe something different. That compromise is part of the glue that holds us together as a nation, the tolerance that lubricates the varied moving parts of us as a people. That sense of respect we owe others, whether or not we believe as they do, illuminates this country, setting it apart from the discord that afflicts much of the rest of the world. In short, I would say to the Huguenins, it is the price of citizenship.”
Believe me when I tell you that this case has fired up the religious right, indeed an appeal to the U.S. Supreme Court is possible. Among other things, some people (including my favorite Republican lawyer Dale Carpenter) have argued that a photography business has a particular claim to freedom of expression that would not be the case for a florist or baker. That said, not only do I disagree, but I don’t see why a florist or baker would not be able to make a similar appeal to artistry, but this is a side issue. This case is the first of many that may make headlines in the near term, and although it has nothing to do with marriage equality, there’s still a connection. As I said, the far right is starting to use the avenue of antidiscrimination law as a new route to flank our troops. And for obvious reasons, wedding businesses have emerged at the forefront of these faith based complaints.
I have another point to make. I was moved by what Justice Bosson had to say about the Huguenins. I have no patience for the idea that Christianity compels an antigay attitude. But you know what? If you truly believe that your faith rejects homosexuality, if you truly believe this regardless of how wrong you are, I can understand why you would go to any lengths to avoid being forced to effectively support what you see as a crime against God.
As I said before, our movement has been fast and furious. Left behind by the pace have been millions of Christians who have been raised on the notion that our relationships are sinful. They have spent years immersed in this fact of faith. Not everyone can change overnight. And twenty years from now, there will be no excuse for the Huguenins of this world. But right now there is. They are wrong, but I understand where they’re coming from, and I agree with Justice Bosson that it is sobering to require them and their like-minded cohorts to act against their faith. I also agree with Bosson that this is the price of doing business in our remarkable country.
I have always found it useful to imagine myself in the shoes of our adversaries. If you truly believe homosexuality is a sin, a perversion, a gross mutation of nature, then of course you oppose marriage equality. Of course you recoil at gays on TV. You wouldn’t want a gay man or lesbian teaching your kids, or even driving the school bus. So what do we say? Do we argue that gay men and women should marry and teach? Well yes, of course. But in the long run, we argue that homosexuality is not sinful, that gay relationships are not perverted, that these embedded ideas are wrong, that our adversaries should rethink--- not their political views--- but their underlying assumptions.
The good news is that our national debate is getting to this crucial stage, the stage where we wrangle with the root cause of homophobia that lies beneath our policy confrontations. This is where the debate over discrimination lies, and this of course is the only debate that really matters.
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The Taxman Cometh
Well, you have to forgive that long essay in a column that purports to summarize the news of the last two weeks. Personally, I thought that New Mexico ruling eclipsed the other GLBT news, so there you go. But you may disagree.
You may think, for example, that the top story is the news that the IRS will recognize all married couples, even if they live in a state that bans gay weddings. I have to agree, that’s pretty big news, and now, Mel and I will file a joint return.
I don’t care if we pay more. I only care that the IRS loves us and respects our marriage! Furthermore, it’s a sharp stick in the eye of Texas. Instead of Mel and me being the rebellious married couple, now it’s Texas that rebels against federal policy by refusing to acknowledge us. The tables are turned, which albeit symbolic, feels huge to me. Plus, now we can stuff all our tax stuff in one box and my tax problems will be hers as well.
You should also know that a foreign butter substitute called Flora has managed to annoy the international gay community with what Unilever insists was an unauthorized commercial. The ad showed a kid coming out to his parents, which sent a bullet heading to the father’s heart. The upshot was that the father was advised to use Flora as a heart healthy shield against the various cardiac threats that life might send his way. Unilever promptly apologized and pulled the ad, which was running in South Africa.
Again, the moral of the story is that corporations can no longer get away with the slightest slight to our community, which is a good thing.
Finally, Mel and I were going to go see The Butler last night, but instead we stayed home and became hooked on a rerun of Sharknado, which is quickly becoming a cult classic. I’m not sure you can call it a classic, since it was first aired this summer. But honestly, you have to see it. Not since The Legend of Boggy Creek have I enjoyed a movie for its sheer absurdity. Sorry for the spoiler, but the scene where the hero gets eaten by a shark but fights his way out of the shark’s stomach with a chain saw was unforgettable.
That said, it’s been years since I saw the Legend of Boggy Creek, but I highly recommend it. My favorite scene is the montage of the changing seasons that illustrates the heartbreaking loneliness of the deadly swamp creature.
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