Now that Arizona’s SB 1062 is dead as last week’s roast chicken, you might think some sanity might descend upon the public square. Don’t count on it.
Let’s set out the inarguables. SB 1062 was Arizona’s reaction to the case in New Mexico where a photographer was sued under that state’s human rights laws for refusing to provide her services for a gay wedding. The relevant passage, as noted by constitutional law professor Josh Blackman, is virtually cut and pasted from the federal Religious Freedom Restoration Act of 1993: “STATE ACTION shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.”
According to a bipartisan commission of law professors, SB 1062 would not have “allow[ed] any restaurant or bar-owner to puts up a sign that says ‘No Gays Served’,” as one email from the Democratic Congressional Campaign Committee hysterically asserted. Rather, under the law, “business people can assert a claim or defense …, in any kind of case (discrimination cases are not even mentioned, although they would be included), that they have the burden of proving a substantial burden on a sincere religious practice, that the government or the person suing them has the burden of proof on compelling government interest, and that the state courts in Arizona make the final decision.” Neither discrimination nor homosexuals were mentioned in either SB 1062 or RFRA ’93.
In any event, Gov. Jan Brewer’s veto message correctly pointed out that Arizona doesn’t have a New Mexico or Illinois-style human rights law to be used as a progressivist ratchet. And as Kevin D. Williamson correctly argues, “If anything, it is much more likely in 2014 that a business exhibiting authentic malice toward homosexuals would be crushed under the socio-economic realities of the current climate.”
That’s “authentic malice”. Malice of the Westboro Baptist “God hates fags” variety.
It’s been said that the biggest obstacle to acceptance of Christianity is the behavior of Christians. If we have difficulty convincing pro-SSM people that our opposition isn’t based on hate, at least part of it is because we have just enough people on our side who spare no charity towards gay people to damage our public credibility. Another part of it is, thanks to sola scriptura, we have liberal Christians like Kirsten Powers who make pseudo-scriptural arguments undermining the orthodox position (“What would Jesus do?”) … and calling liberal Christians “CINOs” really doesn’t help.
Then again, we haven’t been completely honest with ourselves. A recent post on RedState pointed out that we’ve focused on cakes, flowers and wedding photographers because of the obvious absurdity of suing someone over picayune matters. But what about religious objections to renting an apartment to a “married” gay couple? Or to hiring a “married” gay person? What about refusing emergency medical treatment on religious grounds?
Granted, if it’s absurd to sue because a Christian won’t sell you flowers, it’s equally absurd to allow someone to die on religious grounds (what religion permits that?). Nevertheless, a person who refuses to sell a wedding cake as an indirect endorsement of a gay marriage ought also, in theory, to be willing to refuse to rent an apartment to a “married” gay couple, and as Ben Domenech argues in The Federalist, “those who favor human liberty should be in favor of defending” their right to do so.
If you believe markets work, if you believe people work, then you should have faith that legitimate bigotry will be punished by the marketplace. So Hobby Lobby and Chick-fil-A and all the cakemakers who only make heteronormative cake will see their business drop because they were anti-women or anti-gay or what have you. Giving the government the power to punish them — which really amounts to giving elite trial lawyers that power — is madness if you believe in people and markets. Decisions made by free people within markets will sort themselves out better than giving courts and government and bureaucrats the power to do the sorting. No one will shop at the Nazi store without being judged for shopping at the Nazi store, so we don’t need government to ban the Nazi store.
Donald R. McClarey believes that “most Americans, if they truly ponder it, would be all in favor of businesses discriminating in some cases.”
For example, I assume few people are against restaurants discriminating against nudists by mandating clothes. I imagine few Americans would feel comfortable telling a black owned barbecue restaurant that they must cater a Klan rally. A Jewish run deli really should not be required to provide take out for the group calling for divesture from Israel. I am not going to represent the owner of an abortion clinic under any circumstances. In theory Americans might be against private discrimination in commerce, but when it comes down to actual cases, I suspect that almost all Americans are not non-discrimination absolutists.
Why are we afraid to go to such lengths? Well, first, the shadow of Jim Crow still hangs over us; if we’re not really afraid of returning to that period, we’re at least afraid of alienating African-American “values voters”. Second, there’s a high probability of being slathered with gander sauce: if it’s okay to discriminate against “married” gays on religious grounds, is it not reasonable to discriminate against known Catholics on religious grounds? Freedom of association and all that.
Is that where we’re prepared to go? To paraphrase Sean Connery in The Untouchables, what are you prepared to suffer for your beliefs? And are you prepared to make others suffer for them?
This is gradually becoming less of a hypothetical over time. The eminently level-headed Anchoress, Elizabeth Scalia, sees it too. “There is a note of Nikita in this battle, a sense that people on both sides would like to just come out and say ‘we will bury you’, and it’s really beginning to trouble me, because it is letting hate overrule simple humanity. … I feel like I’m watching my gay friends get mauled and then watching my Catholic friends get mauled, both by people who have lost the ability to do anything but feel and seethe.”
I know how Elizabeth feels. I too have dear friends and loved ones who are gay, and have absolutely no desire to lose them in this struggle. Now I know the “great sorrow and unceasing anguish” St. Paul felt with regards to the Jews who had rejected Christ (Romans 9:1-5). And it’s not as if I didn’t see it coming; indeed, I wrote as much three years ago almost to the day.
But, as Michael Shaara’s James Longstreet muses in The Killer Angels, civil war isn’t a grand crusade; it’s a nightmare in which you pick your nightmare side, put your head down and fight. It’s either that or we get pushed out of the public square and back into the catacombs. And just remember: this is what happens when you ally yourself with one who came to cast fire on the earth and cause division (Luke 12:49-53).
What are you prepared to do?
The messengers of Jesus will be hated to the end of time. They will be blamed for all the division which rend cities and homes. Jesus and his disciples will be condemned on all sides for undermining family life, and for leading the nation astray; they will be called crazy fanatics and disturbers of the peace.— Dietrich Bonhoeffer, The Cost of Discipleship