A Stitch in Haste

The church and the slave prison stand next to each other; the groans and cries of the heartbroken slave are often drowned in the pious devotions of his religious master. The church-going bell and the auctioneer’s bell chime in with each other; the pulpit and the auctioneer’s block stand in the same neighbourhood; while the blood-stained gold goes to support the pulpit, the pulpit covers the infernal business with the garb of Christianity.
–Frederick Douglass, 1846

Take up the White Man’s burden–
And reap his old reward:
The blame of those ye better,
The hate of those ye guard–
–Rudyard Kipling, 1899

The Heritage Foundation just published a major position paper opposing same-sex marriage on the grounds that it would expose proponents of anti-gay discrimination to — wait for it — unfair discrimination:

Specifically, in a society that redefines marriage to include same-sex unions, those who continue to believe marriage is a relationship between a man and a woman can expect to face three types of bur­dens. First, institutions that support the traditional understanding of marriage may be denied access to several types of government benefits, and individ­uals who work in the public sector may face cen­sorship, disciplinary action, and even loss of employment. Second, those who support the tradi­tional understanding of marriage will be subject to even greater civil liability under nondiscrimination laws that prohibit private discrimination based on sexual orientation, marital status, and gender. Third, the existence of nondiscrimination laws, combined with state administrative policies, can invite private forms of discrimination against reli­gious individuals who believe that marriage involves a man and a woman and foster a climate of contempt for the public expression of their views.

Let’s take each of these three “burdens” (an astonishingly oblivious word choice, as I will explain momentarily) in turn:

Burden #1: “institutions that support the traditional understanding of marriage may be denied access to several types of government benefits.”

Completely true, and completely irrelevant. Besides the pesky fact that these “government benefits” are funded at least in part by the discriminated-against group (can bigots really delude themselves into thinking that gays don’t pay taxes?), this argument is patently hypocritical: Does the Heritage Foundation believe Rumsfeld v. FAIR was wrongly decided? If an institution wants to suckle at the teat of government, then it must abide by whatever strings the government attaches. And “the government” includes the courts. (See also the concocted histrionics over churches and the tax code.)

Burden #2: “those who support the tradi­tional understanding of marriage will be subject to even greater civil liability under nondiscrimination laws that prohibit private discrimination based on sexual orientation, marital status, and gender.”

This is a bait-and-switch. Remember, the topic is same-sex marriage specifically, not anti-gay discrimination generally. It’s hard to understand how an anti-gay bigot, who would want to discriminate against gay individuals anyway, is additionally burdened by now being unable to discriminate against married gay couples.

Indeed, the paper cannot cite a single real-world example of this supposed “burden,” instead relying on hypotheticals, along with some anecdotal (and unverified) allegations — all of which reflect purported retaliation against anti-gay views, but none of which demonstrate retaliation for discrimination against a married gay couple.

(The only exception is when the bigots, and their churches, are engaged in business enterprises — renting out their halls, etc. But that’s simply not religious discrimination in any legitimate sense. The bigots would still like to pretend that the sanctity of their churches is at stake, but all they can dredge up is the “sanctity” of their bingo halls and their profit margins. Go figure.)

Burden #3: “the existence of nondiscrimination laws, combined with state administrative policies, can invite private forms of discrimination against reli­gious individuals who believe that marriage involves a man and a woman and foster a climate of contempt for the public expression of their views.”

Another bait-and-switch, and a quite delicious one at that. Those who would discriminate are afraid that they themselves will be the victim of discrimination.

One of the several counterarguments to this fear is that anti-discrimination laws are symmetrical. If a gay man who owns a gay bar wants to hire only gay bartenders and busboys — he probably can’t. If an atheist photographer wants to summarily refuse to photograph a Christian wedding — she probably can’t. If a women’s community center wants to rent out its space only to women — it probably can’t. And so on.

There is a difference between a bad law and law applied badly. If we are going to have anti-discrimination laws at all (a question libertarians are more than willing to entertain and debate), then basic notions of justice and fairness demand that those laws be crafted and applied rationally. The fact that some people still want to be irrational is precisely the problem that such laws are trying to address. And in so doing, they actually protect the bigots as much as those whom the bigots would target.

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Saying the same thing three different ways does not make it three times as true (especially when it’s not true to begin with), and the “burden” of being a bigot in an increasingly unbigoted society is not twice as burdensome simply because you package it in three different ways.

In conclusion, let’s go back to that specific choice of the word “burden.” I’m stunned that the author of the paper would leave the door wide open to reminders that the most discriminatory burden ever posited — the White Man’s Burden — was a manifestly religious doctrine (to be specific, a Protestant Christian doctrine) that was used to rationalize bigotry, discrimination and injustice centuries before Kipling’s famous poem. The argument was preposterous then, and it’s preposterous now.

Just as opponents of gay marriage simply cannot sidestep the parallels to Loving v. Virginia, so too are those who would warn of “discrimination against discriminators” apparently blind to the parallels between anti-gay bigotry today and racism (or sexism or anti-semitism or…) in times past. The argument that separate (and unequal) treatment is better for everyone involved — that discrimination helps and improves society itself — has been thoroughly debunked in every instance it has been introduced.

In the wake of such overwhelming evidence to the contrary, for the discriminators to actually convince themselves that “this time it’s different,” ant that they’re actually doing everyone — even gays — a favor, is fairly conclusive proof of a stunted intellect and an unhealthy psychological makeup.

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Here’s the comment I submitted to the Heritage blog. Let’s see whether they approve it:

The only “burdens” champions of anti-gay discrimination will face are: (1) the burden of seeing their lust for theocracy thwarted; (2) the burden of knowing they’re on the wrong side of history, and (3) the burden of having to apologize to their grandchildren, just as the conservative racists of two generations ago are doing today.

Filed under: Constitutional Issues, Gay Rights and Issues, Law, Society, Religion, Culture Wars