In the UK there are people trying to defend gender segregation as a religious freedom, while opponents point out what that would look like if it were racial segregation as opposed to gender segregation. In the US, in the state of Oregon, there’s an effort to get an initiative passed to give business owners a “right of conscience” to refuse gay people service. It’s all the same bullshit, people: when they want to shove you to one side, it’s because they hold you in contempt.
As worded, the referendum will present itself as a modest caveat to the gay marriage law, extending a few basic safeguards for religious freedom. In reality, this ugly, mean-spirited initiative will herald nothing less than a new era of anti-gay segregation in Oregon—and, potentially, all across America.
The notion of legally enshrining bigotry under the banner of “religious freedom” is, of course, nothing new. For decades, private organizations argued that they had a First Amendment right to discriminate against black people based on racist readings of the Bible, even after the 1964 Civil Rights Act proscribed such discrimination with no religious exemptions for private citizens. The Supreme Court slapped down these perverse claims in 1983, and since then, arguments for the religious liberty of private companies to discriminate against blacks have become keenly impolitic.
But other kinds of people that someone doesn’t like? That’s entirely different. God said so. He just forgot to write it down, that’s all.
It’s easy to tell gay couples who face such discrimination to just take their business elsewhere, as former Obama speechwriter Jon Lovett did recently. But that ignores the two broader problems of the “religious liberty” defense. The first is a purely legal one: There is simply no constitutional right for a private business to discriminate against gays. In a landmark case, the Supreme Court ruled that an individual can’t invoke his religious beliefs to dodge an otherwise valid law. Writing for the court, Justice Antonin Scalia scoffed at the notion of “a private right to ignore generally applicable laws”—think basic anti-discrimination ordinances—labeling the idea “a constitutional anomaly.” And in a now-famous passage, the justice noted that “conscientious scruples have not … relieved the individual from obedience to a general law not aimed at the promotion or restriction of religious beliefs.” Hatred of gay people is surely a “conscientious scruple” that Scalia himself shares. But it doesn’t excuse a private citizen at a private business from following fundamental anti-discrimination laws.
Well yes, but unfortunately, what Mark Joseph Stern leaves out there is that the decision in that landmark case he highlights with a link pissed off nearly everyone in this godbothering country, and Congress tried to override it in 1993 with the Religious Freedom Restoration Act, which passed by a unanimous House and a Senate only three votes shy of unanimous. But then it was held unconstitutional as applied to the states in 1997, though it still applied at the federal level…and many states have passed state Religious Freedom Restoration Acts.
God defend our precious freedom to treat other people as contaminants. Amen.