Creative Destruction

May 9, 2006

A Case Where Christians Should Be Allowed To Practice Anti-Gay Discrimination

Filed under: Current Events,Free Speech — Ampersand @ 2:33 am

From Overlawyered.com :

In suburban Washington, D.C., Bono Film and Video has an announced policy of refusing to duplicate material that owner Tim Bono regards as contrary to his Christian values. Now the Arlington County (Va.) Human Rights Commission has held a public hearing and investigated Bono on charges that he discriminated against Lilli Vincenz by refusing to duplicate her Gay Pride videos.

I don’t usually agree with free-market libertarians, but in this case I think they’re right: the business owner should be free to discriminate based on content. If Tim Bono doesn’t have the right to turn down this business, then it follows that similar businesses have no right to turn down xeroxing flyers advertising the KKK – or anti-gay videos produced by Conservative Christians, for that matter. (In both cases, the person turned down could claim to have been discriminated against on the basis of religion).

I don’t think that Bono should be free to discriminate against a customer’s identity; if Virginia wants to force Bono to accept gay customers (or black customers, or Jewish customers, or transgendered customers, etc), then that’s okay by me. (I remain convinced that the Supreme Court’s decision in Dale vs. Boy Scouts was wrong). But although the line between discriminating against who customers are and discriminating against what a particular customer’s job says is blurry, it’s still a line worth maintaining. In this case, the government should defer to the free speech rights of bigots to be bigots.

(On the other hand, just as Mr. Bono has a right to follow the mistaken, bigoted dictates of his conscience, queer and queer-positive customers have the right to follow the dictates of their consciences and refuse to bring any business whatsoever to Mr. Bono. I don’t think such boycotts – from either side – are great forms of political activism; but Mr. Bono started it, and if his business suffers I’ll have no sympathy.)

Dale Carpenter, a same-sex marriage advocate I respect a lot, brings up a tougher case:

Catholic Charities of Boston has decided to stop providing adoption services rather than comply with a state law prohibiting discrimination against gay couples.

Gov. Mitt Romney (R) has proposed a special exemption from this law for religiously affiliated adoption agencies; gay groups have responded that this would amount to discrimination that places politics before the interests of children. […]

Private agencies contract with the state to provide adoption services. The state pays them money and strictly regulates their operations, including the criteria they use to find homes for children. For the past 17 years, Massachusetts has prohibited such agencies from discriminating on the basis of sexual orientation. […]

Until recently, Catholic Charities coexisted peacefully with this anti-discrimination policy. During the past two decades, the group has placed 13 children (out of 720) with same-sex couples. […] But there is a chill wind blowing from the Vatican now on all subjects related to homosexuality. […] Cardinal Alfonso López Trujillo, Vatican head of the Pontifical Council for the Family, recently said that allowing gay couples to adopt children “would destroy the child’s future, it would be an act of moral violence against the child.” Catholic Charities is reluctantly bowing to this pressure.

Of course, anti-marriage equality folks have already been spinning this as an example of the Goodridge decision (the decision which established the right to marriage for same-sex couples in Massachusetts) leading to a crackdown on religion. That argument is dishonest; it’s the Catholic Church, not the Massachusetts government, which has changed policy in the wake of Goodridge. In effect, the Vatican is trying to pick a fight over gay rights.

Carpenter makes a compelling argument that the Catholics should be granted their exemption. Since there are plenty of non-religious adoption agencies able to take up the slack, an exemption won’t actually deprive same-sex couples of the chance to adopt, nor will it deny any children the chance to be adopted.

Exemptions to laws of general applicability inevitably raise slippery-slope concerns. All kinds of exemptions exist in all kinds of laws. Each is an invitation to slide down a slope, but we seem to manage it. Title VII is understood to exempt the Catholic Church from having to hire women priests, for example, but that hasn’t gutted employment-discrimination protection. […]

If we can grant religious exemptions with little or no burden placed on others, we should presumptively do so. Yes, this allows people to discriminate in ways that seem irrational or even invidious to many of us, but our resulting discomfort is an acceptable price for living in a religiously pluralistic and free society. […] If we can’t respect others’ exercise of religious conscience in a case where it costs us nothing to do so, can we really be said to respect religious liberty in a meaningful way at all?

Carpenter’s argument is persuasive. In my heart, I’d like the Massachusetts government to drive Catholic Charities out of business, because I find what the the Vatican is doing disgusting and hateful. But “revenge” isn’t a principled reason to oppose religious freedom in a pluralistic society. (Dammit!)

However, I’m skeptical about the “religious liberty” flag Carpenter is waving. Is there really any threat to religious liberty here? No one is being prevented from praying, from performing rituals, or in any other way from practicing their religion. It is possible to be a practicing, religious Catholic without running an adoption agency in Massachusetts (indeed, I suspect that the large majority of Catholics run few if any adoption agencies).

Nor am I convinced that religious liberty should extend to freedom from anti-discrimination laws so long as no one is hurt. Suppose that the Vatican wanted to open a “no Latina or Latinos allowed” private school – should that be acceptable so long as there were enough open slots in other schools that no child would be deprived of a good education?

But of course, even if it wanted to, the Vatican wouldn’t dare do that. And that’s the point. Suppose the Vatican had sent a message that no more adoptive placements with Asian families were to be allowed? My bet is that no one would find that acceptable, and there would be no question of granting an exemption to anti-discrimination law to coddle the Pope’s loathing of Asians.

What’s the message sent by an “it’s okay to discriminate against queers” exemption? That exemptions like this still seem reasonable to many – so long as the targets of discrimination are gay – is a measure of how much lesbians and gays are not seen as fully human. If the interests of lesbians and gays were seen as fully important the way that (say) the interests of Jews are, this legislation would be seen as beyond the pale.

Normally I dislike “send a message” arguments about legislation. Laws are not post-it notes, and the rights and lives of individuals shouldn’t be trampled on to make rhetorical points. In this case, however, the legislation would do little harm either way. According to Carpenter, whether or not the exemption is granted will have little or no impact on any individual child’s odds of getting adopted, or on any same-sex couple’s chance of adopting a child. With so little directly at stake here, I think it’s appropriate to consider the indirect results, such as the message sent.

An exemption to discriminate against gays, when no such exemption against other groups would be granted, endorses the still-pervasive belief that gay and lesbian interests are unimportant, trivial, disposable. In contrast, refusing to allow this exemption says that expanding discrimination against same sex couples – even when apparently “harmless” – is not reasonable, not mainstream, not acceptable. It’s hate, and the government of Massachusetts shouldn’t practice giving a special green lights for spreading hate and prejudice against citizens of Massachusetts. For that reason, I think Carpenter’s position is mistaken.

Curtsy: CultureWatch.

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25 Comments »

  1. I think you’re missing an important factor. There is nothing in the religious texts of the Catholics that would justify excluding Latins or Asians. In contrast, while we could (and should!) argue about whether these passages are fairly read or not, there is text that seems to indicate that homosexuality is not pleasing to God. That’s the reason that no one would find it acceptable for the Vatican to prohibit placing children with Asian families.

    In contrast, if there were passages in Catholic religious text prohibiting contact with “the people of the East” (or some other fictitious wording), then I suspect that people would be more open to the idea that the Catholics aren’t gonna place with Asian families.

    Comment by Jimbo-cho — May 9, 2006 @ 9:05 am | Reply

  2. Premises:

    1. You have autonomy/freedom/liberty/whathaveyou. Autonomy means, among other things, that you have no duty to aid me unless there is some exceptional relationship between us (parent/child, lifeguard/swimmer, someone who created a mess/someone who is harmed by the mess, etc.)

    2. Government should not act except to fulfill legit. gov. purpose. Government should fulfill its purposes in the manner that imposes the least burden upon your autonomy. Government should not tell you what to believe or do (Establishment Clause), nor impinge upon your beliefs or actions (Free Exercise Clause) or discriminate (Equal Protection Clause) except to the extent necessary to fulfill a legit. gov. purpose (such as hiring on the basis of bonfide occupational qualifications).

    3. There is legitimate dispute about whether discouraging private “discrimination” is a legitimate governmental function. To the extent government created discrimination, government has a legit. purpose in remedying it. Otherwise, government does not.

    Analysis:

    A. What role does government have in impinging on the autonomy of a shop owner to decide whether to copy a gay-themed video he disapproves of? This is unclear to me. If government created discrimination against gays then government may have some role in remedying it. Even so, does government have a less burdensome means of remedy than impinging upon the story owner’s autonomy?

    B. What role does government have in impinging upon the autonomy of a pharmacist to withhold contraceptives? This is unclear to me. If government caused the public to believe that pharmacists could not withhold contraceptives, then maybe government would have some role in remedying this impression. Even so, does government have a less burdensome means than impinging upon the pharmacists’s autonomy?

    C. What role does government have in impinging on the autonomy of Catholic Charities to decide whether to help gay people adopt kids? Again, this is unclear to me. If government created discrimination against gays then government has some role in remedying it. Even so, does government have a less burdensome means of remedy than impinging upon the autonomy of Catholic Charities?

    Admittedly, this is a different situation because government is acting as an employer, not merely as a regulator. If government has a legit purpose in getting kids adopted, I see no problem with government offering a bounty to private adoption agencies for that purpose. And if some adoption agency chooses to forego the opportunity to earn a bounty by placing a kid with a gay person, or a black person, or a poor person, or a short person, that’s the agency’s choice. It’s no skin off my nose if they do. So long as gays, blacks, poor people and short people can get served elsewhere, that looks ok to me. (Government should guard against becoming the enforcing arm for private discrimination, but that’s a larger topic.)

    Hypothetically, if government could work with only a limited number of adoption agencies then government should allocate its scarce supply of agency licences on the basis of bona fide occupational qualifications. If three candidate agencies were willing to work with all potential adopters, then government might have grounds to reject Catholic Charities.

    One person’s “discrimination” is another person’s religion. I prefer government not to discriminate on the basis of religion any more than necessary to fulfill its legit. gov. purposes.

    Comment by nobody.really — May 9, 2006 @ 5:41 pm | Reply

  3. I move that Nobody’s novel-length comments should be banned in all forums. This will cause the pressure in his brain to build up until he cannot stand it anymore, and he will be forced to blog.

    Comment by Robert — May 9, 2006 @ 6:47 pm | Reply

  4. Autonomy means, among other things, that you have no duty to aid me unless there is some exceptional relationship between us

    That’s not quite how the law works. Regulation of discrimination by businesses is not the same as the ‘duty to help’–the fact that I am allowed to stand by and file my nails while you drown five feet away from me doesn’t mean that I can open a restaurant, and deny you seating because I don’t like your skin color.

    Note Carpenter’s little dig about how it “costs us nothing”–i.e., it doesn’t affect him, so screw the queers.

    Comment by mythago — May 9, 2006 @ 6:54 pm | Reply

  5. I move that Nobody’s novel-length comments should be banned in all forums. This will cause the pressure in his brain to build up until he cannot stand it anymore, and he will be forced to blog.

    I just rescued an even longer post from the spamdump. Did I do wrong, master?

    Comment by Daran — May 9, 2006 @ 8:15 pm | Reply

  6. I move that Nobody’s novel-length comments should be banned in all forums. This will cause the pressure in his brain to build up until he cannot stand it anymore, and he will be forced to blog.

    Don’t you guys want to be able to say that you have actual READERS, and you’re not just talking to each other? Do you want this blog to become a target for the goons at StopTheACLU when they want to retaliate for something I posted over there? And, like, does Robert win a toaster every time he recruits a new blogger or something?

    Besides, if I had to name three blogs to link to I’d list this one, Amp’s place and Robert’s place. So you’re not missing much.

    Comment by nobody.really — May 9, 2006 @ 10:55 pm | Reply

  7. Don’t you guys want to be able to say that you have actual READERS…

    Readers are like profits to early-90s dot coms – a sign that you’re doing something wrong. Blogging isn’t about a passive hierarchical transmission of knowledge from expert to audience; it’s a transformative network of heuristic…

    Ok, I can’t keep a straight face.

    Yes, I get a toaster every time we get a new blogger. Soon my army of robotic toaster bots will be ready to unleash havoc upon the world!

    Comment by Robert — May 9, 2006 @ 11:05 pm | Reply

  8. Autonomy means, among other things, that you have no duty to aid me unless there is some exceptional relationship between us
    1. That’s not quite how the law works. Regulation of discrimination by businesses is not the same as the ‘duty to help’–the fact that I am allowed to stand by and file my nails while you drown five feet away from me doesn’t mean that I can open a restaurant, and deny you seating because I don’t like your skin color.

    Actually I was trying to summarize the Restatement of Torts, 3d. But admittedly, the definition of “special relationship” is expansive. Arguably the relationship between a business-owner-holding-herself-out-to-the-public and the public is sufficient to overcome the No Duty rule.

    Note Carpenter’s little dig about how it “costs us nothing”-i.e., it doesn’t affect him, so screw the queers.

    To be fair, I understand Carpenter to say that Catholic Charities is not gonna help gays adopt kids in any event, so gays should be indifferent to whether Catholic Charities gets its exemption from the non-discrimination rule. It seems like a fair argument to make.

    But, as I argue above, I don’t think government should discriminate at all here. I generally favor deciding that a non-discrimination policy is not a bonafide occupational qualification for getting paid for each kid you place in an adoption. But if we conclude that it IS a bonafide occupational qualification, then we should apply it uniformly.

    In Death of Common Sense, the author describes a case where a city had an ordinance requiring newly-renovated buildings to become handicapped accessible, including having elevators. The Holy Sisters of Whatever wanted to move into a dilapidated building and do good works. According to their vows, they never use elevators. The cost of installing the elevator required by the ordinance proved too great, and the Holy Sisters abandoned the project. A clear failure of common sense, right?

    Maybe, but maybe not. The city decided to make its building stock handicapped accessible. Yes, this policy would impose costs. Yes, some projects would be cancelled as a result. We may think the city made a wise trade-off or not, but that was the city’s choice. I see no reason why the Holy Sisters should be exempt from the law. Enforce it for all, or repeal it for all.

    Ok, enough now; Robert’s grumbling already….

    Comment by nobody.really — May 9, 2006 @ 11:26 pm | Reply

  9. Ok, that was weird. A little help, guys?

    Comment by nobody.really — May 9, 2006 @ 11:26 pm | Reply

  10. You have to correctly close each level of blockquote. Otherwise, the software goes all wobbly, like an Italian government faced with casualties.

    You’d know that if you were a blogger, instead of some loser commenter guy.

    Comment by Robert — May 9, 2006 @ 11:31 pm | Reply

  11. Blockquote stuff fixed. Robert talks a good game, but it takes a liberal to actually fix things.

    Mythago, maybe I’m wrong, but I think Carpenter is gay. In any case, whether or not he’s queer, I think his career-long commitment to queer rights (it’s virtually all he works on and writes about) should earn him a little slack on the “he probably just doesn’t give a damn about queers” interpretation.

    Comment by Ampersand — May 10, 2006 @ 12:08 am | Reply

  12. Robert talks a good game, but it takes a liberal to actually fix things.

    It takes a liberal to fix things for nothing. I was working and generating a tax base while you were volunteering.

    Hippie.

    Comment by Robert — May 10, 2006 @ 12:31 am | Reply

  13. I’m willing to entertain alternate interpretations of the “it costs us nothing” line.

    Comment by mythago — May 10, 2006 @ 8:12 am | Reply

  14. I believe he means “it costs us nothing” to refer to his belief that even if CC stops participating in same-sex parent adoptions, it will not prevent any same-sex couples who want to from adopting, since there are so many other agencies available, and since there are many more children in need of homes than couples wanting to adopt.

    Comment by Ampersand — May 10, 2006 @ 11:18 am | Reply

  15. In contrast, if there were passages in Catholic religious text prohibiting contact with “the people of the East” (or some other fictitious wording), then I suspect that people would be more open to the idea that the Catholics aren’t gonna place with Asian families.

    Amp’s arguments pretty well hold true through the whole blog entry. The right to feel discriminatory does not equate to a right to discriminate in a manner that inhibits or excludes others from their rights.

    Comment by Kim (basement variety!) — May 10, 2006 @ 4:33 pm | Reply

  16. The right to feel discriminatory does not equate to a right to discriminate in a manner that inhibits or excludes others from their rights.

    Agreed. The larger challenge, however, is defining what “their rights” includes.

    Again, should gays have a right to receive adoption services from a specific private agency? I’d say no. Should gays (or people generally) have a right to expect recipients of state funds to refrain from discriminating on the basis of sexual orientation? I’d say no unless this prohibition is deemed a bonafide occupational qualification for fulfilling a legit state purpose. In that case, the prohibition should apply uniformly – even to putatively wholesome outfits like Catholic Charities.

    Comment by nobody.really — May 10, 2006 @ 5:15 pm | Reply

  17. In other words, Carpenter has enough resources to find another adoption agency, or figures he will, so it’s no skin off his nose. Hey, I live in California, where lots of restaurants serve Jews, so if Denny’s decides not to seat Jews anymore, it “costs us nothing” to shrug that off.

    Comment by mythago — May 10, 2006 @ 5:26 pm | Reply

  18. It seems to me that you’re stretching to find reasons to attack Carpenter personally, rather than just attacking his argument.

    By far the largest adoption placement agency for foster children in Massachusetts is not CC, but the state government agency. Do you have any evidence that using the government service is less easily available, or more expensive, than CC?

    Also, keep in mind that the alternative to compare to isn’t “CC helps same-sex couples.” That option has been taken off the table by the Vatican. The alternative is “CC closes down.” CC closing down doesn’t make adoption cheaper for less affluent same-sex couples.

    Hey, I live in California, where lots of restaurants serve Jews, so if Denny’s decides not to seat Jews anymore, it “costs us nothing” to shrug that off.

    I do agree that this is a problem with Carpenter’s argument, and I think I said as much in the original post.

    Comment by Ampersand — May 10, 2006 @ 5:56 pm | Reply

  19. Hey, I live in California, where lots of restaurants serve Jews, so if Denny’s decides not to seat Jews anymore, it “costs us nothing” to shrug that off.

    While this does not reflect the current state of the law, it does indeed reflect my view. I am similarly dismayed by laws that bar a Jew from refusing to rent an appartment to a Klansman who claims that White Christian Supremecy is his religion. But what’s bad for the goose is bad for the gander, I guess.

    Comment by nobody.really — May 10, 2006 @ 6:48 pm | Reply

  20. I personally understand and accept the logic, experience and sentiment that led to making discrimination on the basis of race, religion, etc. illegal in many circumstances.

    But it was a close call between those arguments and the generally reasonable desire of people to associate and do business with whomever they will. Now that racism and anti-religious bigotry are no longer generally socially mainstream, it seems to me that it would be more productive to rely on social shaming and ostracism to restrict instances of oppressive discrimination – and leave non-oppressive discrimination (“I just don’t want to rent to a Klansman – there are hundreds of other apartments, why can’t he go to them?”) to the individual conscience.

    That’s just my opinion, of course. I wouldn’t want to like go and write a lengthy blog post about it or anything. Cough.

    Comment by Robert — May 10, 2006 @ 7:19 pm | Reply

  21. As McGonagal said to Umbrage, can I get you a lozenge?

    Comment by nobody.really — May 11, 2006 @ 9:47 am | Reply

  22. No, but you can get me a toaster!

    Comment by Robert — May 11, 2006 @ 11:08 am | Reply

  23. to associate and do business with

    Two different things.

    Do you have any evidence that using the government service is less easily available, or more expensive, than CC?

    It’s the same evidence Carpenter uses to prove that this would ‘cost us nothing’.

    If CC would rather shut down than comply with the laws, that’s their choice. I’d note that in California, where they were forced to pay for contraceptives under their employees’ health plan, they managed not to fall over and die as a result.

    Comment by mythago — May 11, 2006 @ 11:29 am | Reply

  24. First I want my Toaster!
    Second; nice flowing comments here.

    third; my having jewish last name, being catholic, and living in Asia leads me to ask… whats all this angst about the Pope and Asia? Excuse me half the chrch is Asian, the ‘da vinci code’ is regulated to adult movie status here in manila where they proadly pray aty all public funtions with all main faith groups represented.
    Ok we have our religous problems now and then; But by and large its a very tollerant society.
    On Latino’s thats another 70-80 per catholic group as well.
    Anyhow i still want my toaster, but soon as group birthrates rise and as fractionalized as America is becoming along ‘racail and sexual preference’ niche’ groups everyone will all be minorities soon and then maybe well have equlity.
    Toaster coupon now! he-he-he…

    Comment by mikeinmanila — May 16, 2006 @ 7:18 am | Reply


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