Conservatives have been flailing this month to recover control of their “religious liberty” talking points after the country turned on Arizona for its “license to discriminate” bill, leading up to Gov. Jan Brewer’s veto Wednesday afternoon. Groups like the Heritage Foundation, the National Organization for Marriage, the Family Research Council, the Cato Institute, and Focus on the Family all came to SB 1062′s defense, arguing in various fashions that it would do nothing to promote discrimination against LGBT people. At the forefront of this media effort was the Alliance Defending Freedom (ADF), which not only helped draft Arizona’s bill, but provides legal counsel to individuals who engage in such discrimination.
By doubling down in response to the backlash, these groups have sent a clear signal that the fight over “religious liberty” is far from over, even if Arizona proves to have been a turning point. Here’s a look at the rhetoric they’ve used over the past two weeks to suggest that “religious freedom” somehow requires the privilege to refuse service to the LGBT community — in particular, marrying same-sex couples — and why it doesn’t hold up.
What Is “Discrimination”?
At the core of this discussion is a fundamental disagreement about what “discrimination” is and what “discrimination” is not. It’s no secret that stories of bakers, florists, and photographers being punished for refusing service to marrying same-sex couples is what motivates these bills; proponents admit as much. But they don’t actually think of that refusal of service as discrimination. Here’s how ADF’s Kellie Fiedorek attempted to explain the bill earlier this week:
SB 1062 merely clarifies Arizona’s existing law to protect Arizonans from any attempt by the government to force them to speak or act in ways that violate their religious beliefs. It safeguards freedom by closing loopholes that have allowed other state governments to punish private citizens for living and working according to their convictions.
In other words, cakes, flowers, and pictures constitute “speech,” and providing them for a same-sex commitment ceremony would violatee the religious expression of those who oppose marriage equality. At the same time, these conservatives believe that itis“discrimination” when those vendors are penalized for refusing to provide the exact same services to same-sex couples that they offer to straight couples. Here’s how the Heritage Foundation’s Ryan T. Anderson and Leslie Ford framed it last week:
A growing number of incidents show that the redefinition of marriage and state policies on sexual orientation have created a climate of intolerance and intimidation for citizens who believe that marriage is the union of a man and a woman and that sexual relations are properly reserved for marriage.Now comes government coercion and discrimination. Laws that create special privileges based on sexual orientation and gender identity are being used to trump fundamental civil liberties such as freedom of speech and the free exercise of religion.
Those “incidents,” which Anderson and Ford proceed to cite in their piece, are the four prototypical stories fueling the “religious liberty” talking points: the New Mexico photographer, the Colorado baker, the Oregon bakers, and the Washington florist. All four refused to provide their services to same-sex couples’ commitment ceremonies in violation of state nondiscrimination laws that protect sexual orientation. The consequences these businesses are facing do not, however, constitute “discrimination.”
“Discrimination” suggests that these vendors are being treated differently from other vendors, but that is not the case. If a state or municipality requires that public accommodations be provided equally regardless of sexual orientation, that applies equally to all businesses. There is not some perk or privilege that some businesses enjoy that these anti-gay vendors have been denied access to. Rather than being subjected to “discrimination, they are being held to the same consistent standard as everybody else. If it’s “on the menu” at a public business, all protected classes must have equal access to that accommodation.
Discrimination Is Okay If Other Businesses Can Provide The Service
One of the arguments that proponents of these laws have made is that it’s okay to let one religious business owner discriminate because there will be plenty of other businesses that don’t. Here’s the Cato Institute’s Ilya Shapiro making this point:
This isn’t the Jim Crow South; there are plenty of wedding photographers — over 100 in Albuquerque — and bakeries who would be willing to do business regardless of sexual orientation, and no state is enforcing segregation laws. I bet plenty of Arizona businesses would and do see more customers if they advertised that they welcomed the LGBT community.
Shapiro isn’t wrong, but nondiscrimination protections aren’t just about access; they’re about basic equality. The injustice occurs in the moment when the refusal of service occurs. It’s a message to same-sex couples that they are less than — that they don’t deserve the same access to public goods as other newly forming families. Nondiscrimination protections literally mitigate harm by interrupting stigma. Other vendors can substitute the service, but they can’t undo the harm.
Moreover, Shapiro’s assumptions convey an urban bias. Attitudes toward LGBT people are dramatically improving, but in rural areas, there often aren’t other many options for services. When one Washington lawmaker was trying to legalize discrimination, one of his staffers told a constituent that if gay people in rural areas couldn’t find a grocery store that served them, they “can just grow their own food.” This is not a viable solution to guarantee equal access across society.
Through these various talking points, conservatives promote a narrative that suggests a “religious rights vs. gay rights” conflict. This obviously does not account for the fact that not all people with a religious identity are anti-gay nor the reality that many LGBT people are religious. Moreover, it suggests an uneven playing field in the wrong direction.