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Discriminating Between Discriminations

February 27th, 2014 · 50 Comments

Like most of my friends, I think Arizona governor Jan Brewer was probably right to veto SB 1062, which as Reason‘s J.D. Tucille writes, was less a “blow against big government” than a “homophobic stunt” designed to signal official approval of anti-gay animus, while creating a special class of associational rights for people who justify that animus by reference to ancient myths rather than plain old secular discomfort.  Even worse was a similar proposal in Kansas, which not only singled out gay citizens as specially approved targets of discrimination, but licensed that discrimination when practiced by government employees acting in an official capacity, and forced businesses to “accommodate”  employees who demanded to pick and choose which customers they would deign to serve.

Unlike most of my friends, I do not find it self evident that the “liberty interest” invoked by religious bigots is some kind of absurd sham worthy of mention only in derisive scare quotes. And I find it a bit disturbing that many of them seem to assume that if any anti-discrimination laws protecting any class of Americans have ever been justified, the weight of that interest has effectively been reduced to zero, and may be ignored for all future purposes. Having decided it was OK to forbid motels from turning away African Americans in 1964, in other words, many seem to take it as already settled that there’s no possible objection to compelling a photographer to work a gay wedding—except, perhaps, the invalid one rooted in the view that the homophobe’s bigotry is somehow more justifiable than the racist’s. I’m perfectly open to the notion that it may be wise and justifiable to extent the protections of anti-discrimination law to groups not currently covered—but I also wish supporters of such reforms would acknowledge that there’s a genuine impingement on associational freedom involved in such extensions, and that no simple sweeping principle can obviate the need for a close examination of the tradeoffs in each case.

As I argued in Newsweek a few years back, the “purist” libertarian position that condemns all anti-discrimination laws, including the 1964 Civil Rights Act,  as a priori unjust violations of sacrosanct property rights is profoundly misguided and historically blinkered. We were not starting from Year Zero in a Lockean state of nature, but dealing with the aftermath of centuries of government-enforced slavery and segregation—which had not only hopelessly tainted property distributions but created deficits in economic and social capital transmitted across generations to the descendants of slaves. The legacy of state-supported white supremacism, combined with the very real threat of violence against businesses that wished to integrate, created a racist structure so pervasive that unregulated “private” discrimination would have and did effectively deprive black citizens of civic equality and a fair opportunity to participate in American public life.

We ultimately settled on rules barring race discrimination in employment, housing, and access to “public accommodations”—which, though it clearly restricted the associational freedom of some racist business owners within a limited domain, was nevertheless justifiable under the circumstances: The interest in restoring civic equality was so compelling that it trumped the interest in associational choice within that sphere. But we didn’t deny the existence of that interest—appalling as the racist’s exercise of it might be—and continue to recognize it in other domains. A racist can still invite only neighbors of certain races to dinner parties, or form exclusive private associations, or as a prospective employee choose to consider only job offers from firms run or staffed primarily by members of their own race.  Partly, of course, this is because regulations in these domains would be difficult or impossible to enforce—but partly it’s because the burden on associational freedom involved in requiring nondiscrimination in these realms would be unacceptably high.

mojo-discrimination-lawSome of the considerations supporting our limited prohibition of racial discrimination apply to discrimination against gay Americans. But some don’t. Sexual orientation, unlike race, is not transmitted across generations, which means a gay person born in 1980 is not starting from a position of disadvantage that can be traced to a legacy of homophobic laws in the same way that a black person born in 1980 is likely to be disadvantaged by centuries of government-enforced racism. We don’t see the same profound and persistent socioeconomic disparities. Sexual orientation is also not generally obvious to casual observation in a commercial context, which as a practical matter makes exclusion more costly and labor intensive for the bigot. And while I’ve seen any number of claims that allowing private orientation discrimination would give rise to a new Jim Crow era, the fact is that such discrimination is already perfectly legal in most of the country, and it seems as though very few businesses are actually interested in pursuing such policies.

Rather, the actual cases we’ve been hearing about recently involve bigoted photographers or bakers—who run small businesses but are effectively acting as short-term employees—who balk at providing their services to gay couples who are planning weddings. (I take for granted that gay marriage should, of course, be legal everywhere.)  What’s the balance of burdens in these cases? The discrimination involved here doesn’t plausibly deny the gay couples effective civic equality: There are plenty of bakers and photographers who would be only too happy to take their money. Under the circumstances, the urge to either fine or compel the services of these misguided homophobes  comes across as having less to do with avoiding dire practical consequences for the denied couple than it does with symbolically punishing a few retrograde yokels for their reprehensible views. And much as I’d like for us all to pressure them to change those views—or at the very least shame them into changing their practices—if there turn out to be few enough of them that they’re not creating a systemic problem for gay citizens, it’s hard to see an interest sufficiently compelling to justify legal compulsion—especially in professions with an inherently expressive character, like photography. In short: Yes, these people are assholes, but that alone doesn’t tell us how to balance their interest in expressive association against competing interests at this particular point in our history.

In a sense, bigotry in the economic realm is a bit like pollution: Whether a prohibition is justifiable—and how stringent the limits should be—will depend on whether enough people are doing it that you have an appreciable aggregate harm. We don’t just deem carbon emission an intrinsic wrong and categorically ban it—we recognize that industrial smokestacks are probably worth regulating fairly strictly, while banning fireplaces would limit individuals freedom to use their property more severely than can be justified by the public interest in avoiding the marginal ecological harm imposed, given levels of fireplace usage observed in the real world.

This is, of course, where it’s incumbent on me as a straight guy to check my privilege. (I checked; it’s still there.) Maybe I’m empirically wrong about the practical consequences of private discrimination—which it would be easy enough to be given that I’m not on the receiving end of this particular variety.  Zack Beauchamp argues that there is, in fact, good reason to expect systemic harm. If that’s the case, it might still be worth considering where the harm of exclusion is serious enough to outweigh the interest in expressive economic association. It seems plausible the balance might come out differently for, say, medical clinics and supermarkets than for wedding photographers. In other cases—like hiring—it might be that the right balance is struck by a transparency mandate, where the worst harms are inflicted on people who absorb all the opportunity costs of taking a particular job, only to belatedly discover that heterosexuality was an undisclosed job requirement.

My point here, in case it wasn’t already clear, isn’t really to argue that laws barring sexual orientation discrimination are either justified or unjustified. I  don’t have enough data to say.  The point is that treating private discrimination as either a categorical wrong committed by troglodytes with no liberty interests meriting consideration or an utterly inviolable right of conscience, divorced from either historical context or practical consequence, seems like a stupid way to approach the issue.  If there are still enough hardcore bigots to justify restricting their expressive association in the economic domain—or in subsets of that domain—then I hope their numbers soon dwindle to the point where those restrictions become unnecessary. But at some point, I would hope we can at least agree in principle, they become a sufficiently irrelevant minority that we are not entitled to inflict legal penalties strictly as a means of signalling our superior enlightenment and symbolic disapproval.

Tags: Sexual Politics · Sociology



50 responses so far ↓

  • 1 John Thacker // Feb 27, 2014 at 10:22 pm

    I do think that hotels, say, present more of a problem than photographers or wedding cakes, which are close to speech. Regarding hotels, my brother and I visited Japan about 8 years, and a business hotel refused to rent us a double room (one with a single full or large bed) because we were both male. Two twin beds was okay.

    I don’t think that hotels in the US generally have an issue with that; preferring not to ask or assume.

  • 2 Ruth Allen // Feb 27, 2014 at 10:45 pm

    I wonder if generalised, negative laws are unhelpful? Perhaps if they were focused on positive rights etc, rather than ‘don’t do x’ they would be experienced not as restrictive but as liberating. Where individuals’ rights appear to be in conflict (e.g. right to self-expression- sexuality vs religious belief), the response should focus on specific reconciliation towards best path forward for those in that situation that sustains rights as much as possible. Avoiding adversarial processes where possible may result in more acceptable outcomes for everyone

  • 3 Julian Sanchez // Feb 28, 2014 at 12:58 am

    That is an appealing idea that I think proves, for better or worse, to be impossible to operationalize as a neutrally applicable law.

  • 4 John Thacker // Feb 28, 2014 at 1:09 am

    The Kansas bill was clearly very overbroad, and terrible. The Arizona bill, facially, seems to be the same as the federal RFRA, which has had few ill consequences. It would have, as you note, on the particular hot button issue a small effect, though it would likely have some modest effects on other issues and on the effect of possible future legislation in Arizona.

    Would it be fair to say that you think that the Arizona bill might well have been okay to sign if the immediate motivating factor had been similar to the federal law (which was drafted in response to a Supreme Court decision holding that an American Indian church could not use peyote if it was banned by federal law)? I definitely understand feeling that the symbolism of the thing can make it worth opposing, and I might even share it in this case. At the same time, I do think that for most supporters, the symbolism (and obvious original motivation factor) was about the bakers and photographers that you think should have this right.

    It seems that one possible conclusion is that one might support the bill only to the extent that the most supporters would not engage in the worrisome behavior (and be even more willing to do so the more that supporters were people who disagreed strongly, as by analogy to the Skokie cases.) While sensible, that also naturally explains a desire by opponents to demonize supporters.

  • 5 John Thacker // Feb 28, 2014 at 1:14 am

    The smaller the group who would do the actions (and thus, since it takes a majority to pass a law, mathematically more of the supporters would be outsiders protecting them), the more likely one is to support it.

    The Warren Court took a more expansive view of the Free Exercise Clause, particularly as applying to Jehovah’s Witnesses, Seventh Day Adventists, and others. It was when the Rehnquist Court (in a decision authored by Justice Scalia) narrowed how compelling a government interest was needed that Congress moved to reverse it. The Court later struck down the portions of the RFRA that applied to state statutes, saying that Congress could not impose on the states the Court’s old Warren Court interpretation of the First Amendment (but could impose it on the federal government.)

    The strongest reason to oppose the bill is I think any motivating animus. Unfortunately, that means that the political battle will be waged in attempting to divine (and impugn) the motives and symbolism of the other side, rather than a discussion of the textual merits of the bill. That does not make for edifying political discourse.

  • 6 John Thacker // Feb 28, 2014 at 3:03 am

    In the immediate short term, the AZ law would do nothing with regards to the photographer or baker, since, unlike in other states where such cases have occurred, sexual orientation is not part of these laws. The law would, however, protect more minority views.

    However, I suspect that it’s reasonably likely that at some point in the future, AZ law will protect sexual orientation like in some other states. And at that time, the experience of other states suggests that the law adopted at that time will fail to make exceptions for the photographer or baker. The speed at which things go from banned to mandatory in practical politics can be dizzying. The adoption of such a law now might mean that such exceptions would be preserved in the future (noting how the federal RFRA has worked in practice.) I suspect that is much of the motivation for the supporters, to lock in the exception now.

  • 7 Dan // Feb 28, 2014 at 9:55 am

    There are plenty of gay people who agree with you that suing homophobic photographers/bakers is completely stupid. (If nothing else, if you win the lawsuit, what are the odds that the baker *isn’t* going to spit in your cake?!) Although it’s easy for me to say “just find another photographer/baker”, because I have “blue-state privilege”…

    Hospitals are a totally different story. If you’re a doctor/nurse and you don’t want to treat gay people, I’m sure they’d be glad to have you in Uganda.

  • 8 Ruth Allen // Feb 28, 2014 at 7:48 pm

    Yes, perhaps neutrally applicable laws- that work to define absolutes- can’t be operationalised well in this context. The focus should maybe be on identifying broad ‘values’ that are then applied within a process of discourse and collaboration in situations where problems arise. In my work I find that even the most disordered or dysfunctional (as we currently define them) act cooperatively if they feel safe (in a psychological sense). Systemically, we don’t currently have a way to do this though!

  • 9 K. Chen // Feb 28, 2014 at 10:19 pm

    John Thacker:

    There is a lot of discussion right now about exactly the state action portion of the AZ RFRA change plays out compared to Federal RFRA. I personally suspect it has something to do with Section 1983 suits. However, the SB 1062 at a minimum is attempting to preempt particular outcomes in Hobby Lobby, for which the federal RFRA is still unclear.

  • 10 Arizona Afterthoughts — IGF Culture Watch // Feb 28, 2014 at 11:25 pm

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  • 11 Ben Kibbey // Mar 1, 2014 at 1:58 am

    First off, reading the comments, I have to ask, am I on the Internet? Because this doesn’t look like what I have seen in the past in comments sections.

    That said, excellent article.

    I would definitely like to see concerns moving away from definitions regarding religious beliefs and looking to personal conscience to a greater degree (though not a concern in the immediate laws, I wouldn’t want, for instance, for a Palestinian to be legally obligated to cater a Jewish fundraiser for helping to build settlements in the West Bank). Everyone has a philosophy, and all of them are arbitrary to some degree.

    One possible distinction – though slippery and imperfectly defined – could be to differentiate between inherently cultural and everyday business. Simply, a fundraiser, a political rally, a wedding or even something like a bar mitzvah is a distinctly cultural event. Not that there should be no anti-discrimination laws covering those kinds of things, but that there should be a greater burden of proof for discrimination. A person who might be compelled to participate or provide logistical support to a specific event that is tied to personal philosophy should not face the same requirements as someone providing completely secular services such as a hotelier or grocer or even a restaurateur (though even then perhaps a restaurant should not face the same standards for renting out a banquet hall as they would for serving customers in an everyday setting).

    As I put it to a friend, a lifelong Green Party member shouldn’t have to rent their property to the Tea Party for election day headquarters, but there should also never be a case where those Tea Party folks cannot have a presence in an area simply because all the suitable buildings are owned by people who don’t like them.

    I also think that “compelling interest” needs to play a larger role in all directions. We have let ourselves become unmoored from the reasoning behind anti-discrimination laws, and there seems little interest from greater society for providing a reason for burdening individuals if those individuals are people we find personally reprehensible.

    We’ve come to take a bit of a sledgehammer approach to dealing with people whose beliefs the greater society considers to be unacceptable. And, to such an extent that I think a time may come in the future when our approach to them might be viewed in the way we now look at people who tell a 4-year-old boy, “Stop crying and act like a man!”

    That is to say, from a mental health perspective, perception is everything. If someone genuinely believes in a god and genuinely believes they are sinning against that god, forcing them to do so may have all the mental impact of forcing an animal rights activist to personally slit the throat of a kitten.

    That we don’t like these people or what they believe is not license to inflict whatever emotional anguish on them we wish, and to do so without a truly compelling interest is absolutely brutish.

  • 12 Mark // Mar 1, 2014 at 11:22 am

    Regarding the above examples, I’m not aware of any state public accommodations laws that require business owners to rent space to the Tea Party.

    The Arizona and Kansas debates seem to exhibit a radical expansion of the linkage between the 1st amendment and public accommodations. To take the preferred photographer/baker examples: lots of weddings (divorced/remarriage, interfaith, marriages following out-of-wedlock births) violate sincerely-held religious beliefs of various faiths. Yet between 1964 and a few years ago, we didn’t see state legislatures pass laws demanding exceptions to public accommodations laws for businesses whose owners might object on religious grounds to these types of weddings.

    Why not? Perhaps one theory is that until the rise of the organized anti-gay marriage movement in Prop 8, which focused heavily on the idea that letting gays marry would victimize others, no one (or virtually no one, and no one in the political mainstream) argued that the act of selling a cake to someone, or taking pictures of someone, constituted moral approval of the manner in which the customer would use the cake or the pictures.

    Adopting this (very radical) AZ-KS conception of public accommodations to the 1960s would have rendered many applications of public accommodations laws unconstitutional: if selling a cake (or a rose, or a diamond ring) to an interracial couple could be interpreted as expressing moral or religious support for that couple’s wedding, then of course (under this current definition of “religious exemptions”), public accommodations laws should not have applied.

    The popular mindset (at least among conservative Christians) has changed, and I don’t think we can go back to the 1965-2008 widely-accepted consensus that a business selling a customer a cake or a rose or a photograph didn’t imply the business endorsing the moral purpose of how the customer would use that product. But I don’t see in much of the AZ commentary an acknowledgement of just how dramatic this change has been, and in such a short time. It’s hard not to see the hypocrisy of small businesses who want a religious exemption not to sell to gays but never seem to have demonstrated any problem in selling goods or services to heterosexuals whose behavior violates the owners’ faiths.

  • 13 Discrimination — Old Thoughts And New — IGF Culture Watch // Mar 1, 2014 at 6:01 pm

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  • 14 Ben Kibbey // Mar 1, 2014 at 7:33 pm

    “Regarding the above examples, I’m not aware of any state public accommodations laws that require business owners to rent space to the Tea Party.”

    Neither am I. That was not the point.

    The point is that everyone should be protected from unreasonable burdening of their personal beliefs, regardless what the beliefs are. If every private property suitable for a campaign event in a town is owned by a small number of people who are all against the Tea Party or the Green Party or PETA or whatever, they should not (emphasis on “should”) be able to use that power to prevent those with opposing views from having a local presence.

    At the same time, if there are multiple properties available for them to rent, it would be unfair to have a broad rule that forces the only person in the town who has a moral qualm about renting to the Tea Party to do so, and opens the gate for people charging discrimination purely out of nastiness and spite.

    After all, in the case of the Albuquerque photographer, they didn’t sue them to force them to take their wedding photos. They sued them to run their business into the ground and destroy their lives. The primary motive goes from seeking fair treatment to seeking revenge on someone for… well, for believing something.

    Also, Mark, people are perfectly able to turn down business with others for reasons you cited. This includes that there are still some motels in this country where if a man and a woman rent a room together, they have to at least claim to be married or related, or the owner will insist they have separate rooms.

    There is no law saying “It’s OK,” because no one is threatening to pass a law saying “You cannot.”

    A law that permits people to decline photographing a wedding if the mother is pregnant would be as silly as a law that permits yawning, as no one is trying to outlaw either of those things.

    And, in all of this, I think the original article makes a very good point regarding severity of discrimination. That is to say, there is a point when you go from preventing a substantial number of people who oppose something from interfering with the free rights of others to live their lives, get married and so forth. But, then there’s a point where you are finding the one guy in town who is still uncomfortable with interracial marriage, and forcing him to be part of the ceremony.

    Now, while that might satisfy to do so, the part of the human soul that takes joy in such things is no better nor more noble than the part of the bigot that wants the world to stand still in the first place.

  • 15 Discriminating Between Discriminations | TightWind // Mar 1, 2014 at 7:42 pm

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  • 16 Mark // Mar 2, 2014 at 1:24 am

    “The point is that everyone should be protected from unreasonable burdening of their personal beliefs, regardless what the beliefs are.”

    That’s a perfectly logical, if extreme, libertarian position. But it hasn’t been the law in the United States (as the original post points out) for 50 years, since passage of the Civil Rights Act. While it’s true that in some states it’s still legal for public accommodations to discriminate on the basis of sexual orientation, it’s illegal for such discrimination to occur on the basis of race, or national origin, or in almost all states gender. Maybe we should repeal the Civil Rights Act, but I don’t think that would be a good idea. I don’t think it’s a good idea in large part because I don’t believe–at least until very very recently–that it was anything but a fringe idea that the religious or associational beliefs of a business or a business employee were in any way violated by a policy that citizens of a state in various protected classes should be allowed to purchase the company’s product, if the business operated in the public marketplace.

    I wasn’t aware that the plaintiffs in the NM lawsuit (who I think were politically very foolish to file the complaint, since doing so fed into a victimization theme) sued the photography business ” to run their business into the ground and destroy their lives.” I was under the impression–especially since the plaintiffs didn’t ask for any financial damages–that they filed the complaint to ensure that the business would follow NM law and not discriminate against the next gay or lesbian couple that sought to purchase the business’ service. But perhaps you have access to material not in the public record.

    As I said before, the idea that the religious beliefs of a business owner or a business employee can be violated by *how* a customer uses a good or service purchased by that customer strikes me as a radical expansion of what constitutes religious exemption. I suspect the backlash against the AZ law was caused in large part by most citizens in the state shuddering about a public marketplace in which businesses could suddenly claim that the mere act of letting black or gay or female customers purchase the business’ product in some way violated the business owner’s (or in the case of KS, employee’s) religious freedom.

  • 17 Antidiscrimination laws: it’s all or nothing | The Purple Elephant // Mar 2, 2014 at 12:51 pm

    […] Sanchez of the Cato Institute has a great analysis, which closely mirrors my own thinking. (For other thoughts on Sanchez’ piece see David Link’s […]

  • 18 Ethan Glover // Mar 2, 2014 at 1:58 pm

    I lost interest after “Lockean state of nature”. The only reason this term is ever brought up anymore is as a shallow attack against others.

  • 19 Joan Kibbey // Mar 2, 2014 at 8:06 pm

    Anti-discrimination — has that become a one-sided definition? So — as per the original article, anyone who believes from a religious perspective that homosexuality is wrong is an “asshole” and one only hopes that they will die out and rid society of their lack of enlightenment. Does that therefore mean than it is okay to discriminate against anyone whose beliefs, from your personal perspective are archaic?
    Then let’s take a look at the baker and photographer, both of whom were driven out of business. If a grocery or bakery shop refused to sell a ready-made cake to anyone, that is clearly wrong. But for many who design cakes, it is an art and an expression of themselves. Why would you want someone to design something so special as a wedding cake for you if you knew their heart wasn’t in it? For a photographer, it is even more of an issue for they will have to be present at the ceremony. Why do we immediately label those who don’t believe in same-sex marriage as homophobes and automatically categorize them as haters and bigots. Isn’t it also bigotry to disdain those with religious beliefs, sue them, boycott them, and drive them out of business?
    Everyone should have basic rights to health, education, shelter, and work without discrimination — but I don’t think those basic rights go as far as demanding a particular photographer or wedding cake when other alternatives are readily available. Surely civility and tolerance should be two-sided.

  • 20 Pierre le Canadien // Mar 3, 2014 at 2:02 am

    Sanchez’s whole argument about “discriminating between discriminations” is a red herring. The Arizona bill stipulated that private businesses were to have the “ability to act or refusal to act in a manner substantially motivated by a religious belief.” Gays and lesbians were never signaled out. Yet, if one takes a cursory trip down the memory lane of Jim Crow, one soon remembers that religious belief lay at the core of many of the legal, moral and political justifications for racial segregation, including the ban on interracial marriage. If passed, the Arizona Bill would have brought segregation back, right through the backdoor of religious freedom.

  • 21 Brian Stone // Mar 3, 2014 at 5:00 am

    Just wanted to let you know that you really showed your lack of knowledge on this issue when you spoke about gay not being a visible trait. Without any overt symbols of affection, my boyfriend and I frequently invite being treated like rogues and space aliens whenever we venture too far from Downtown Detroit. Very upper class areas are the worst.

    Not to mention, the fact is… My money is just as good as anybody’s. That’s the principle behind these laws. Money is money, and businesses who are profit based should treat it that way.

  • 22 etseq // Mar 5, 2014 at 2:07 pm

    Libertarians – I got mine so screw the rest of you.

    So basically, you hate anti-discrimination laws but you are too much of a wimp to go full Goldwater and advocate for the repeal of all civil rights laws so you basically are looking for ways to exclude gays from any such protections. So you invoke the same crappy arguments that religious bigots have used for decades – gays aren’t real minorities because they weren’t enslaved for centuries, gays can’t reproduce so no “intergenerational stigma” and the best of all, gays can stay in the closet. Of course, its not like homosexuality hasn’t been a capital offense throughout most of modern history and “sodomites” weren’t burnt at the stake, hanged, or had burning pokers shoved up their ass. It’s not like homosexuals haven’t been the target of waves of moral panic and hysteria going back to the middle ages right up through McCarthy. Let’s just forget about the numerous medical and psychological tortures that were used to treat/convert gays – electroshock therapy, chemical castration, aversion therapy, etc. We are so lucky that we aren’t burdened with “intergenerational stigma” – instead of growing up in a loving family that looks like you, gay kids grow up without ANY support and have to find the courage to survive bullying and abuse in hopes of moving to a city where they can live openly, if they don’t kill themselves first. And as “passing” – maybe but not if your a sissy or slightly gender non-conforming.
    But hey, don’t let facts get in the way of your explaining just how important it is for christian wedding planners to maintain their “liberty” to discriminate.

  • 23 etseq // Mar 5, 2014 at 2:15 pm

    Also, the fact that you view these laws as “symbolic disapproval” sums up how blinkered libertarians are. You view this as some sort of state enforced morality which offends your dignity. That may be part of the justification but its mostly to prevent discrimination.

  • 24 Why Christian Photographers Should Work at Gay Weddings – The Atlantic | Best Photo Market // Mar 6, 2014 at 1:17 pm

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  • 25 Marco Luxe // Mar 7, 2014 at 1:17 am

    Best article I’ve read so far, although there’s a lot of dross out there.

    AZ SB1062 was dangerous, but could have been redeemed by an enabling regulation defining the proof of a “sincerely held religious belief” for businesses. Such a regulation would require a business, before it could avail itself of the “protections” of SB1062, to post on all signage, advertising and correspondence that “this business refuses to serve any dyke or fag”, etc.

    Of course, this would have been of no consequence in the segregationist deep South, but today, vanishingly few religionists would want the protection of SB1062 if they had to continually express their sincerely held religious beliefs. And that would seem to make them cowards, a la, my religious beliefs are private until I want to use them as a scalpel to publicly discriminate.]

  • 26 Mobilya ofis buro | Why Christian Photographers Should Work at Gay Weddings // Mar 14, 2014 at 5:13 pm

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  • 27 Paul McGuire // Mar 17, 2014 at 9:07 pm

    You do have a point. There are some ways in which sexuality is a visible trait. However, it is not something that is constantly visible at all times. Meaning, if I enter a business without my husband, it is not obvious to most people that I am in fact married to a man. This is because I do not exhibit many of the traits that generally are associated with being gay. However, when we both enter a hotel together and want to share a room then there is a lot more reason for a bigoted hotel owner to refuse us a room.

    In general I look at these laws from the lens of the sorts of religious persecution claims already out there. The few examples we had so far of businesses claiming they are being forced to provide services to same-sex couples are so minor that the only conclusion you can come to is that they want to appeal to the religious base. It has nothing to do with actual religious persecution.

    [Side note: in the example of Japan, I don’t think it is necessarily homophobic on the part of the hotel owner. Depending on where you stay it is simply a cultural thing that you don’t speak of sexuality and all public displays of affection are looked down upon.]

  • 28 Joe Nunnally // May 1, 2014 at 3:31 pm

    Here is something interesting to read about the tea party and the upcoming elections in 2016 http://www.thedemocratictruth.com/gop/could-the-gop-lose-part-of-the-base-in-2016/

  • 29 Just Some Bro // May 20, 2014 at 12:47 pm


    In your opinion, who poses the bigger threat to freedom–religious bigots or PC lynch mobs?

  • 30 Bill W // Jun 11, 2014 at 9:24 am

    To me bigotry is wrong but can you really legislate it? I have no problem with a photographer turning down work, it’s his loss, just go elsewhere. But if you are looking for accommodations it is a different story. So do you write a law with 100’s of exceptions or just say no discrimination?

  • 31 Jeremy R // Apr 3, 2015 at 9:50 am

    This article hits EXACTLY on all the points I was trying to make to others regarding this issue. First, any analogy to the civil rights movement of the 1960s is completely disingenuous and ignores a century of historical pretext, inherent differences related to outward appearance and that affect on discrimination, and general social opinion in today’s society. Second, discrimination against LGBT people is already permissible in numerous states, and we don’t see businesses rushing out to discriminate en masse against LGBT. In fact, business has historically gone the opposite way. For example, businesses began offering domestic partnership benefits long before the IRS included them as eligible dependents and thus non-taxable benefits. In other words, there was no monetary reason for business to do this, actually additional administrative expenses….but what way did things shift?

    Third, the appropriateness really needs to be discussed. Is this the appropriate response to a small family held business that is responding to a hypothetical that will never occur?

    The recent Liberty Ridge Farm decision shows where this nation is headed on this issue and I find it scary. Not only were the Giffords ordered to hold the gay wedding at their farm, and not only were they ordered to pay over $13,000 in fines, they were also compelled to attend anti-discrimination “re-education classes.” WHAT?!?!?! Does that sound like America to you….or China?

  • 32 Jamshid // Apr 4, 2015 at 2:14 am

    Pinche puta you block me on twitter instead of replying, you useless hack piece of shit.

  • 33 BobN // Apr 4, 2015 at 2:10 pm

    Why not compare to the closest anti-discrimination parallel: religious anti-discrimination law?

    Please argue for the right of businesses to turn away Jews, for example.

  • 34 HANS FIENE: Gay Marriage Isn’t About Justice, It’s About Selma Envy: My generation willfully … | CRAGIN MEDIA // Apr 5, 2015 at 7:54 am

    […] to, say, someone who has to shop elsewhere for a wedding pizza. Here are some thoughts on that from Julian Sanchez, and here is a rather understated example from the Supreme Court’s Heart of Atlanta Motel […]

  • 35 Should Mom-and-Pops That Forgo Gay Weddings Be Destroyed? | Mountain Finch Post // Apr 5, 2015 at 10:11 am

    […] using the state to punish businesses like this often draw analogies to Jim Crow. Julian Sanchez has persuasively addressed the shortcomings of that argument (even presuming that opponents of gay marriage are motivated by […]

  • 36 Conor // Apr 5, 2015 at 10:53 am

    Just as an experiment, I would like to see a black-owned bakery be forced to cater a Klu Klux Klan event. (Or a gay florist a neo-Nazi wedding, or whatever.) I suspect we would need an osteopathic surgeon to repair all of the damage from those bending over backwards to explain how that’s, like, TOTALLY different, and in this case public accommodation doesn’t apply.

  • 37 Alan // Apr 5, 2015 at 1:12 pm

    I usually don’t read essays that are this hateful but let me point out that the centuries of racism that the writer quotes as our current environment are actually on the other side of a half-century of compulsive equality.

  • 38 Ronnie // Apr 6, 2015 at 11:23 am

    Julian, you used the following expressions in your article: homophobe’s bigotry, misguided homophobes, retrograde yokels, reprehensible views, assholes.

    No where near enough evidence was presented to justify that kind of harsh language.

    Name calling, rudeness, and making assumptions about peoples views, motives, and behaviors reveal a bigoted attitude. A photographer who declines to provide services at a same sex wedding may or may not be motivated by bigotry but your language here does appear to be bigoted. Perhaps you should consider approaching people with less assumption and mean spiritedness.

  • 39 Indiania: Why Freedom of Association Is So VERY Important. | Louis Petolicchio // Apr 7, 2015 at 1:07 pm

    […] short: Stop comparing the campaign for “Marriage Equality” to the Civil Rights Movement, because they are two very different things, with very different legal ramifications, and very […]

  • 40 Should Mom-and-Pops That Forgo Gay Weddings Be Destroyed?Breaking News Today | Breaking News Today // Apr 7, 2015 at 5:30 pm

    […] a state to retaliate businesses like this mostly pull analogies to Jim Crow. Julian Sanchez has persuasively addressed a shortcomings of that evidence (even supposed that opponents of happy matrimony are encouraged by […]

  • 41 Should Mom-and-Pops That Forgo Gay Weddings Be Destroyed? — The Atlantic | Slinking Toward Retirement // Apr 7, 2015 at 11:02 pm

    […] the state to punish businesses like this often draw analogies to Jim Crow. Julian Sanchez has persuasively addressed the shortcomings of that argument (even presuming that opponents of gay marriage are motivated by […]

  • 42 Naive Young Evangelicals and the Illiberal DNA of the Gay Rights Movement - Mere Orthodoxy | Christianity, Politics, and Culture // Apr 8, 2015 at 5:02 am

    […] objections (religious or otherwise) from meaningful participation in public life. But while he’s right Julian Sanchez persuasively argues our current situation with respect to gay rights is nothing like Jim Crow, the LGBT community has made all of its legal […]

  • 43 Should Mom-and-Pops That Forgo Gay Weddings Be Destroyed? — The Atlantic // Apr 9, 2015 at 3:51 pm

    […] using the state to punish businesses like this often draw analogies to Jim Crow. Julian Sanchez has persuasively addressed the shortcomings of that argument (even presuming that opponents of gay marriage are motivated by […]

  • 44 Should Businesses that Quietly Oppose Gay Marriage Be Destroyed? | Leadingchurch.com // Apr 9, 2015 at 8:21 pm

    […] Discriminating Between Discriminations […]

  • 45 Naive Young Evangelicals and the Illiberal DNA of the Gay Rights Movement // Apr 12, 2015 at 12:10 am

    […] objections (religious or otherwise) from meaningful participation in public life. But while he’s right Julian Sanchez persuasively argues our current situation with respect to gay rights is nothing like Jim Crow, the LGBT community has made all of its legal […]

  • 46 How Can Liberals Be Pro-Choice on Abortion and Anti-Choice on Everything Else? | Sandora News Aggregator Portal // Apr 20, 2015 at 7:38 pm

    […] (If you want to read a calm, intelligent and thought-provoking piece on the subject, check out “Discriminating Between Discriminations” at […]

  • 47 Animal’s Hump Day News | Animal Magnetism // Apr 22, 2015 at 5:55 am

    […] (If you want to read a calm, intelligent and thought-provoking piece on the subject, check out “Discriminating Between Discriminations” at […]

  • 48 Ivan // Nov 19, 2015 at 4:45 pm

    I am kicking mesylf for not going outside to run/walk and enjoy the day, but I did Pilates at 11:00 a.m. and I’ll be damned if I’m going to workout/exercise more than once a day. I’m really working hard at staying healthy, but working out twice is something I’m just not going to do. I’m also not ever going to categorize doing anything with running shoes on as anything but exercise. No wonder I’m fat. Also, in my defense, I’d like to say that I didn’t get to sleep until 1:00 a.m. and I get up at 4:00 a.m., so I really did need to take a nap too. By the way: My nap was awesome. I turned on MSNBC and it put me right out.

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