This is the second in a new series, Ten Short Rants.
Memories Pizza, a modest shop in a small town in Indiana, has experienced a reversal of fortune. Plucked from obscurity, it became a symbol of intolerance: to some, a symbol of anti-gay intolerance, to others, a symbol of religious or viewpoint intolerance. Then, after death threats and a barrage of fake orders and denunciations, it closed down, and then got ludicrously rich.
You already have a strong viewpoint, most likely. So do I.
1. I understand that politics is about lying, but I am annoyed when politicians lack the respect to tell me a plausible lie. The assertion that Indiana's Restoration of Religious Freedom Restoration Act had nothing to do with discriminating against gays is an implausible lie. The model federal statute was passed in the Clinton Administration. You're trying to tell me that it's just a coincidence that the Indiana law was passed immediately after same-sex marriage became legal in Indiana, just a coincidence that some of its strongest backers are express foes of gay rights? Please. Favor me with a plausible lie. Tell me that the RFRA is fair, or reasonable, or needed, or much broader than just about gays. But don't try to tell me that it was anything but signalling.
2. Politicians lie. So we shouldn't be surprised that even though the Indiana RFRA was a signal of defiance of gay marriage, it's a terribly ineffectual way to legalize discrimination against gays or their marriage ceremonies. Say that you believe that a business owner should have a First Amendment right to refuse to cater a same-sex wedding. Would you feel comfortable if someone said "well, if you refuse, after protracted and ruinously expensive litigation, maybe that right will be recognized — or maybe not"? Would that make you feel that your rights are protected? The RFRA, like the federal act it is modeled on, is a litigator's delight, requiring a wonkish multi-factor balancing test. If some hypothetical Indiana local ordinance made it illegal for a hypothetical dough-tosser to refuse to cater a hypothetical same-sex wedding, would that substantially burden the free exercise rights of the dough-tosser, and would the local government be able to show it is essential to a compelling government interest and the least restrictive means of furthering it? Hell if I know. It probably rises or falls with the level of generality. Is the interest protected anti-discrimination or anti-discrimination regarding gays or anti-discrimination of a narrow subset of events involving gays? If you think you know for sure how a court would come out, you're fooling yourself. Look at how widely district courts and federal circuit courts split over application of the federal RFRA to the contraception mandate. RFRA cases are difficult and unpredictable. Does the RFRA protect your right to groom in prison according to your religion? The district court says yes and the appellate court says no! No, wait, the district court says yes and the appellate court agrees! Does that mean that a TSA employee can wear dreadlocks? Not if he didn't jump through the right legal hoops first! Can you possess golden eagle feathers for religious purposes? The district court says no, the appellate court says yes! Must the Post Office give you Saturday off if that's your holy day? No, because not pissing off federal employee unions is a compelling interest!
So. The RFRA may be a signal to people who would like to discriminate against gays that "we got your back," but if so it's a lie.
3. The First Amendment protects the free exercise of religion. But it also protects freedom to assemble — free association — and freedom of speech. Why should people who want an exception from the law on religious grounds get one, but not people who want an exception from the law on philosophical or political grounds founded in free association or free speech? Because religious belief has a preferred social status in America, notwithstanding the capacity of some of us to portray ourselves as downtrodden. That's not particularly principled. Also, "let's pass laws and then let's pass more laws to give special exceptions to preferred groups if their rights were violated by the first laws" is no basis for a system of government.
4. As I've said before, America has never really confronted the friction between anti-discrimination principles and First Amendment principles. We'd prefer to pretend that there are no such conflicts that that there's a logical scenario in which everyone's constitutional and statutory rights are respected. But that's wrong. If one set of rights protects everybody from government interference, and another set of rights tells everybody not to be assholes to each other1, sooner or later those rights are going to clash. Recognizing that doesn't mean that you're taking a position on how the clash comes out. Personally? I think you can make a plausible argument that the government has a compelling interest in making public commerce open to people regardless of race, religion, gender, or sexual preference, and that anti-discrimination laws are generally tailored to that end. But I don't think you can make a plausible case that the government has a compelling interest in making business owners participate in particular types of events to which they personally object, or that compelling them is narrowly tailored towards the goal of preventing discrimination.
5. I support same-sex marriage. I think that laws prohibiting private consensual sexual contact among adults are both immoral and unconstitutional, and I think the Supreme Court got it appallingly wrong in 1986 when it said otherwise. I think the downfall of anti-gay laws and the legalization of same-sex marriage is an example of the long road bending towards justice. I think that the trip down that road has been accelerating recently. That's good. But I don't believe the road can't curve back. America has seen social and legal and political backlashes. It may again. We've moved down the road in the right direction because Americans have come to see gays — correctly — as just folks like them. The best way to assure a backlash and retrenchment2 would be to re-otherize gays. Am I saying that gays should pipe down, accept the status quo, not shove their gayitude down the apparently very vulnerable throats of the anti-gays? No. Fuck 'em if they don't like you. What I am saying is that it might be more effective in the long run, when the other side is in rout, not to send the children out onto the field of battle to slit throats. Demanding the destruction of a small-town pizza place owner — who may or may not know whether she knows any gay people — because she says that she doesn't want to cater gay weddings? That's the kind of disproportionate bullshit that doesn't achieve any justice and makes the participants look like unlikeable assholes — like maybe they aren't just folks after all. The narrative gays are bullies is the anti-gay right's best shot at reversing the tide, and they're promoting it skillfully, aided by people who are in fact acting badly.
6. You may not like how effectively conservatives have used the "progressives are bullies" narrative to drive things like making $850,000 for a pizza place over a weekend. Maybe you think that only some people made threats3, and that the rest is not "bullying" or "fascism" or a "lynch mob" but good old-fashioned free expression. It's not a terrible argument. Criticism, after all, is not censorship. Vigorous expression of disagreement is a crucial pressure valve; its availability is what convinces us that we don't need to censor speech we don't like. But if you don't like how "bully" is being used now, ask yourself: did I help release the kraken? Did I help degrade the meaning of the word "bully?" Did I call a vocal group a lynch mob when it was not, in fact, hanging someone? Did I call people expressing themselves vocally a "witch hunt?" If you did, then there's your bed: you made it, go lie in it.
7. By the way: legal, social, and political backlashes often operate along class lines. When an urban college-educated reporter travels to a small town to find a pizza-maker and asks them questions until they say something not approved of in the big city, and then makes them the freak of the week for clicks, what it sounds like to lots of Americans is "Hurr hurr hurr, look at the yokel! Look at how backward the hick is! Look how she even thinks fabulous gays would want pizza at their weddings!" People who like isms and ists who are being honest would probably call it classist. Ask Mitt Romney how classism works out electorally.
8. Making threats is unacceptable.
9. #8 is so short because it doesn't need to be qualified.
10. Not everything is a "threat" for purposes of #8. I'm talking about true threats — at a minimum, threats that a reasonable person would interpret as a statement of intent to do harm. True threats are an increasing problem. That problem is made harder, not easier, by partisans pointing to obvious not-threatening rhetoric and crying "threat!" So, for instance, when someone responded to Pizza Memories' dilemma by saying "adapt or die," that was not a true threat. You might think that the sentiment is noxious or hackneyed or inapplicable, but no rational person would interpret it as an expression of intent to do violence. If you act as if things like that are true threats just because they are uttered by the other side, you're part of the problem — you're part of the reason that people who get actual threats too often don't get taken seriously.
Also, I like pizza.
- This is a paraphrase. ▲
- If you don't think that gays could experience a dramatic reversal of legal rights, you weren't paying attention to how the rights of criminal defendants played out over the last half-century. ▲
- No doubt the threats, like all threats, were not made by the people you agree with, but in false-flag operations, or by mere outliers. ▲
Last 5 posts by Ken White
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- The Selma March In Some Rare Photos, And The Obligation To Speak - January 16th, 2017
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