Hating Gays May Be Constitutionally Protected

Hating Gays May Be Constitutionally Protected
Acting On It Is Not
BY ANN ROSTOW

Here’s one of the new twists in the long running battle between the good guys (us) and the evil ones (them). Instead of simply attacking gays and lesbians as sick misfits (a strategy that is so last century) the far right has started to insist that we’re the oppressors and they’re the victims.

They can’t come forward with the names of antigay financial donors because the GLBT community might attack and harass the antigay supporters.

We can’t show the videos of the Prop 8 trial, because the anti-marriage witnesses might suffer from the ferocious gay community backlash.

What? Someone got in trouble for writing that gay marriage is a “cesspool” on their Facebook Page? That’s a violation of free speech!

Did the cute country inn refuse to host a same-sex union celebration? Why that’s just the exercise of their constitutional right to freedom of religious expression. Ditto for the Navy chaplains who don’t want to preside over a gay wedding or the Christian clerks who don’t want to handle the same-sex paperwork. How can the government force devout evangelicals to do business with creepy GLBT deviants? It’s not right! It’s not constitutional!

Here’s the easy way to untangle these apparently knotty conflicts. Just substitute Black for gay and see how far these arguments fly.

Do we allow secret contributions to White Supremacy political groups based on the fear that the Black community might react badly? No.

Can an employer sanction a staff member who writes racist screed on a public forum like Facebook? Of course they can.

Are Christians allowed to ignore civil rights laws based on a Biblical belief in the inferiority of Blacks? No.

So why is this tactic working as well as it has, when it seems so clearly flawed?

Because it has been working pretty well.

Marriage equality laws and other antidiscrimination statutes that cover sexual orientation are often riddled with religious loopholes. The faith based initiatives that allow the government to funnel public funds to do-gooders at the local church often exempt the recipients from gay rights laws.

Those Navy chaplains? They were initially given orders to treat marriage as gender neutral. But after the Christian hissy fit that followed, that order was revoked for further legal review. Then, Republicans in the House added language in the defense appropriations bill that prohibits military chaplains from conducting gay weddings, even in states where same-sex marriage is legal. That language hasn’t been included in the pending Senate version of the defense bill, but still.

Aside from specific cases like this, the underlying issue is why anyone gives credence to the notion that people who hate gays deserve some kind of special understanding and some kind of protection from the rolling tide of equality.

The answer, in part, is based on a misguided notion of freedom.

Freedom, liberty, whatever you call it it’s the iconic American philosophy. We came to these shores in pursuit of freedom, fought the British to secure it, wrote the Constitution to protect it.

And yet. What do you do when my freedom conflicts with your freedom? Or what do you do when the whole society requires that some freedom, let’s say the freedom to run through the streets naked on Saturday night, be curtailed? What do you do if you’re a public school administrator and the students want to protest the war in Iraq by wearing armbands? What if they want to wear Confederate flags on their belt buckles?

Where does the freedom to hate gays fit into our system?

Under the First Amendment, the government cannot trespass on your freedom of speech or your free exercise of religion, At least that’s the theory. But as we all know, you still can’t yell “fire” in a crowded theater. And if your so-called “religion” commands you to walk naked down Main Street every Saturday night, well you’re going to get arrested all the same. A religious belief does not trump general laws that apply to everyone and that serve a compelling secular state purpose.

Does your Native American religion require that you smoke peyote in violation of strict state drug laws? Tough luck, the Supreme Court has said. Oregon has a compelling interest in banning such drugs, so your religious belief takes a back seat to the public good. (Spoilsports.)

Schools must keep order and protect the educational environment. Confederate flag belts are a catalyst for unrest and can be banned. Armbands are a legitimate exercise of free speech and must be allowed. As for T-shirts, as long as they are not the antigay equivalent of a Confederate flag, they should not be censored regardless of what side of the fence they represent.

A private employer? That’s not the government telling you what not to post on your Facebook page. That’s your boss! If you get fired or disciplined for antigay postings or antigay speech in the workplace, don’t look to the First Amendment to help you. Company policy, in compliance with state and federal law of course, is up to the company. Does Widgets USA want a GLBT boycott because their Vice President went off on a viral Youtube homo-rant? I don’t think so. And yes, they can fire you for that.

But here’s the main battlefield: it lies in the cities and states that ban sexual orientation discrimination in public accommodation, and it pits the antigay Christian business owner against us, his or her GLBT customers.

It pits the New Jersey bridal shop owner against the lesbian dress buyer. It pits the two guys planning their wedding in New York against the Christian owned bed and breakfast. It pits the gay woman who was halfway through her complicated fertility treatment against the medical practice that cut her off at the knees when they realized her partner was a woman. It pits the antigay bakery against the clients trying to order pride cupcakes.

But But But! they cry. It’s our religion!

But it’s not their religion.

It’s not their religion, it’s their bigotry that makes them turn their backs, cancel the order, stop treatment, refuse the booking. The antidiscrimination laws on the books don’t target Christianity. There are plenty of Christian bakers, butchers and candlestick makers ready and willing to serve gay customers. Those that won’t have only themselves to blame, and if they find it hard to follow the secular rules of our progressive cities and states, then they can either suck it up and make the sale, or they can find another line of work that does not fall under the rubric of “public accommodation,” emphasis on “public.”

Freedom is not absolute. And while the freedom to hate gays will always exist, the freedom to act on that hatred will not.
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