The dignity of toleration

By W.W. | HOUSTON

A LITTLE more than 20 years ago, as a rising junior at the University of Northern Iowa, I moved in with my first gay flatmate. There would be two others in the coming years, during grad school in Maryland. It was an interesting time to live on the edge of gay men's lives. In 1993 I don't know that I'd even imagined the possibility of same-sex couples enjoying the privileges of state-sponsored matrimony. It did not seem to be a possibility my flatmate was interested in, probably for the same reason neither of us were much interested in booking a round a trip to Mars. I remember reading Andrew Sullivan's "Virtually Normal" a few years later, and how nice but fanciful the idea of legal gay marriage seemed to all of us then. If someone had told us that same-sex marriage would become legal in our state before we hit our forties, we wouldn't have believed it.

We certainly didn't imagine that in 2014 Colorado bakers and New Mexico photographers would be subject to lawsuits for refusing to bake cakes for and shoot photos of same-sex weddings. On one level, it's deliriously gratifying that it has come to this. Not only can lesbians get hitched in New Mexico, which is an incredible fact all by itself, but Christian photographers who decline to work gay weddings can get sued for it and lose. Amazing! On another level, however, it's clear something has gone awry. The aim of legal same-sex marriage is equality under the law, not the criminalisation of a certain popular strain of Christian doctrine. The freedom to run a business in accordance with religious convictions that were recently all-but-universal is, like the freedom of same-sex couples to marry, a freedom worth having. Can't we have legally-binding gay weddings and photographers who won't shoot them? That seems nice for everybody. Let's do that.

Doing that seems to me to have been point of laws like Arizona's strangely controversial SB 1062, which was vetoed last week by Jan Brewer, Arizona's governor. Douglas Laycock, a professor of law at the University of Virginia, recently noted that the thrust of the bill was simply to refine existing state and federal religious-freedom protections. "These laws", Mr Laycock writes, "enact a uniform standard—substantial burden and compelling interest—to be interpreted and applied to individual cases by courts. They rest on the sound premise that we should not punish people for practicing their religion unless we have a very good reason". The point of SB 1062 in particular was to clarify "that people are covered when state or local government requires them to violate their religion in the conduct of their business, and that people are covered when sued by a private citizen invoking state or local law to demand that they violate their religion." Mr Laycock goes on to emphasise, and this is very important:

But nothing in the amendment would have said who wins in either of these cases. SB1062 did not say that businesses can discriminate for religious reasons. It said that business people could assert a claim or defense under RFRA, ... that they would have to prove a substantial burden on a sincere religious practice, that the government or the person suing them would then have the burden of proof on compelling government interest, and that the state courts in Arizona would make the final decision.

It is incorrect to claim, as my colleague did last week, that SB 1062 was "in effect, an exemption from anti-discrimination laws for the pious". It was not. It was an attempt to calibrate the law so that worthy new legal rights don't infringe on worthy old ones. If forcing conservative Christian photographers to shoot gay weddings can be shown to promote a "compelling interest" of the state, and if the photographer fails to show that doing so would place a "substantial burden" on her sincere religious beliefs, then refusing to work a gay weddings would remain a violation of existing anti-discrimination law. That seems reasonable to me. As Mr Laycock says, "we should not punish people for practicing their religion unless we have a very good reason". When we do have a very good reason, we can go right ahead.

Ross Douthat of the New York Timesobserves that laws such as SB 1062 "have been seen, in the past, as a way for religious conservatives to negotiate surrender—to accept same-sex marriage’s inevitability while carving out protections for dissent". But Mr Douthat worries that progressives are pressing their case too hard. "[N]ow, apparently, the official line is that you bigots don’t get to negotiate anymore". Mark David Stern, writing at Slate, rather underscores Mr Douthat's point by refusing to see a difference between the religious conservative's wish to negotiate an honourable surrender and an apology for institutionalised racism:

At the core of Douthat’s argument is a tacit shrug that, well, obviously anti-gay discrimination isn’t as bad as racism: The Bible’s hostility toward gays is a good deal clearer than its distaste for blacks. But Times readers would have no truck with such base bigotry, and so Douthat slips it between the lines, embedding it in the scaffolding that holds up his central premise. By the internal logic of Douthat’s piece, homophobia is simply more defensible than racism. Nothing else could explain why denying gay customers is OK while denying black customers isn’t.

That is to say, we can't have both gay weddings and photographers who won't shoot them because that would be like Jim Crow. But it wouldn't!

Mr Stern ignores a number of important distinctions here. First, there is the crucial difference between refusing to do business with someone simply because he is gay and refusing to sign a contract to play a part in a marriage ceremony that violates one's own dearly-held religious convictions about the function and meaning of marriage. Second, the religious belief that marriage ought to be reserved for heterosexual couples does not entail "homophobia", even if it is no accident that these are highly correlated atttitudes. Third, there are good reasons why "anti-gay discrimination isn’t as bad as racism", and these reasons are relevant to anti-discrimination law and the justification of its scope.

Racism is baked into America's DNA. The horror of America's brutal history of slavery and racial apartheid, its centrality to American history and culture, and its comprehensive distortion of American institutions demands redress. Redress requires, and therefore justifies, reasonable restrictions on otherwise sacrosanct liberal rights of free association. Institutionalised homophobia is also terrible, but not that terrible. Walt Whitman didn't have it as bad as Solomon Northrup, the subject of the Oscar-winning "12 Years a Slave". Whitman couldn't have had it that bad, because he was white. Finally and belatedly guaranteeing equal legal rights to blacks after 400 years of monstrous racist oppression would not have been enough to begin to rectify the vast injustice at the heart of American history. It was necessary, and remains necessary, to go further than formal equality. But finally and belatedly guaranteeing equal rights and equal legal protections to gays is enough. Punishing people for adhering to the dictates of their heteronormative faith traditions just isn't needed for gays to get a fair shake in America. Making religious conservatives feel persecuted, refusing them the dignity of toleration, is unnecessary and probably counterproductive. It's okay not to punish people for practicing their religion when it doesn't really hurt anyone. There are other photographers. There are other bakers. Everything's going to be all right.

In 1993 I could not have imagined that we would be having a conversation about whether Christian vendors ought to be allowed to refuse to participate in gay weddings, for I did not realise it was possible that attitudes toward homosexuality might evolve so rapidly. Our moral culture has evolved with truly bewildering speed. It did not take some monumental Civil Rights Act to make it happen, and it's not necessary to curb-stomp religious conservatives to keep our evolution on track. "Virtually Normal" seemed like lemonade oceans in 1995; now the same-sex family unit in "Modern Family" seems more hackneyed than risque. The way public opinion is trending, 20 years hence it will be hard to convince our children that this ridiculous conversation was one we needed to have.