As a rule these days I try to avoid investing time and energy in online debates, but sometimes I just can’t help myself. Yesterday I got sucked into a debate at the Matt Walsh Blog about Arizona’s rightly-vetoed Senate Bill 1062, the “Turn Away the Gay” bill. I was more than a little startled by the outpouring of right-wing support for SB 1062 that followed Governor Brewer’s veto, and the arguments mounted at MWB grabbed me because they were especially heinous.
For starters, of course, there’s the standard refrain of the straight, white cisgendered libertarian male: “The solution is simple, just don’t do anything.” In this case, Walsh argues that the proper solution to anti-gay discrimination is for the government to do nothing, and the free market will eradicate discrimination. I’m not even going to spend a lot of time refuting this position because (a) it’s so incredibly stupid; and (b) if you’re here reading, you probably already agree that it’s incredibly stupid, so I won’t waste your time. Let’s just agree that if LBJ were alive, we could all share a hearty laugh about what a fantasy world some libertarians live in.
The reason I write about it here is to point out how ludicrous it is to call SB 1062, or the many similar bills in other states, “Religious Freedom Laws.” The so-called ‘right’ of Christian business proprietors to turn away LGBT people is presented as a protection of their religious observation. A government mandate to treat LGBT customers identically with other customers is, according to the bill’s defenders, a tyrannical denial of religious liberty. This is absurd on several levels.
Point one: There is no Constitutional right to commerce, and there never has been. Since the founding of the United States, and long before, commerce has been something the government can regulate. Americans enjoy their Constitutionally protected rights in pursuit of expression, but not in pursuit of revenue. To the contrary, commerce is in legal terms a privilege, granted by the state, and one for which Americans must often obtain licenses, pay taxes, and abide by state and federal regulations–including prohibitions against discrimination.
Of course, conservatives and some libertarians have long clung to a fanciful “moral right to commerce,” but such does not exist, and has never existed, in the United States.
Point two: These laws are not about protecting religious observation, but religious imposition. For one thing, business owners already have the right to turn away LGBT customers, legally, provided they don’t supply a reason. Anti-discrimination law prohibits denial of service based on certain criteria; if a savvy cake decorator or wedding photographer wants to refuse any customer, he or she can simply say “Sorry, I’m not available on that date.” What laws like this protect is the right of the proprietor to declare, unequivocally, that the customer is being turned away because of who they are. It’s protecting the right of business owners to proselytize, not protecting them from being forced to violate their faith.
More importantly, perhaps, these laws perpetuate a stereotype that is divisive and wrong: the idea that all Christians believe homosexuality, and same-sex marriage, violate their faith. In fact there are major Christian denominations with large populations of observers, including Episcopal and Presbyterian Christians, who perform same-sex marriages and welcome openly gay clergy. When politicians present legislation like this as “protecting the religious liberty of Christians,” they implicitly elevate one set of Christian beliefs as the official ones, and delegitimizing the others.
SB 1062 is dead now, and it may in fact have advanced the cause of equality. Thanks to bills like this in Kansas and Arizona, Americans have woken up to similar laws pending in states like Mississippi and Pennsylvania. The rapid and powerful outpouring of opposition to SB 1062, from sources including the NFL and major corporations, shows how much support equality has in contrast with just a few years ago.
In the meantime, the oppressive majority (who suddenly find oppression more difficult to achieve) portray themselves as “bullied” and persecuted, and claim their Constitutional rights are being denied. It’s embarrassing to watch, and more importantly it’s dead wrong.