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

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.