These 'license to discriminate' bills: What they're doing and why they're doing it

The current news cycle is filled with stories about proposed laws in various state legislatures which seek to chip away at existing anti-discrimination laws so that business owners who cite their personally-held faith can deny goods and services to LGBT people, and both sides are very charged up. Anti-LGBT activists, who for the past couple of years have had a very hard time finding (or fundraising off of) anything resembling a win, are charged up because they think they've caught on to something that could change their fates and the overall conversation. People who support equality are charged because they can't believe such proposals could ever see the light of day in basic conversation, much less in statehouses across the nation.

But while this is all new to someone who follows the so-called "culture war" either casually or not at all, those of us who geek out on this LGBT (/anti-LGBT) political stuff have known to expect this for years.  

A condensed history: Almost as soon as the now-deemed-unconstitutional Proposition 8 passed at California's 2008 polls, groups like the National Organization For Marriage began cultivating a meme claiming that they, the folks who had just stripped millions of citizens of a court-tested right, were the true "victims."  They began searching for the one or two stories that they could sell the way they had already sold the one or two tales of Massachusetts parents whose kids' public school days were supposedly now a morass of gay-led awfulness, thanks to that state's marriage equality.  After finding a few supposed "victims" (cake bakers, florists, photographers, inn keepers), they used them to sell the new message: Same-sex marriage is a threat to religious freedom.  From there, other conservative policy shops like the Heritage Foundation and the Becket Fund (to name just two) began shaping and polishing, leading us to now, a time when this fake victimization is finding its way into genuine legislative debate.  

That's the basic "what."  To understand the "why," you have to look at what the anti-LGBT movement always does when they fight us on our issues.  For instance:

  • When we say we all deserve the freedom to marry the person we love under civil law, they claim we are "attacking marriage" and that they are on defense.
  • When we said we all deserved the right to serve country without fear of a witch hunt based on our sexual orientation, they claimed we were "undermining troop cohesion" and threatening the military's mite and morale.
  • When we fight for a federal and fully inclusive Employment Nondiscrimination Act, they make it all about anti-LGBT employers who will lose the "right" to fire/not hire people simply because of sexual orientation or gender identity.
  • When we say we just want equality and peace of mind, they claim we are overreaching for "special rights" that come at great expense (to lives, nations, children—you name it!). 

Detecting a theme here?  In every instance, the other side's strategy has been to cast us as the villain.  As the threat.  As the social ill.  As the reason we Americans can't have anything nice.

It's obvious why the thinkers on the other side came up with these tactics.  Discrimination is a bad thing.  America has always wised up to that fact eventually.  If you are someone who feels compelled to fight for a social movement even thought you know that a great many people instinctively view as discriminatory, then you have to come up with something that can maybe—possibly, hopefully, pretty please!—flip the more obvious script.  For the movement that has spent the past few decades fighting for more discrimination against LGBT people, this rewriting effort has been built almost fully around the notion that the maligned population is actually the antagonistic team.

Which brings us back to those bakers and florists and photographers.  Even though these are cases where people who obtained business licenses in states where they knew (or should've know) that anti-discrimination laws are in effect sought the truly special right of selectively ignoring such laws, the crowd that is driven first and foremost by a desire to score points against the LGBT equality movement (and in many cases, by a coupled paycheck as well) is turning back to this same, old, tired tactic of turning the denied person into the supposed tyrant.  

Of course the folks who are pushing this new meme are coupling it with that other canard that they love to misrepresent: religious freedom.  If you read one of their commentaries or listen to one of their pundits talk on the TV box, you will barely hear mention of the actual human beings who suffered the indignity and embarrassment of being told their sexual orientations rendered their money no good in that particular establishment.  Instead, the wrong-side activists talk about the poor, poor shop owner who has supposedly lost a previously undiscovered right to pick and choose which anti-discrimination laws they must follow and which they can deny due to their personal and arbitrary morality tests.  Yet again, they do this because focusing on the person who is truly at the heart of the incident (i.e. the denied customer who had the valid complaint) too clearly lays out the stakes.  They think if they focus on a public good that America supports, religious freedom, they can hide a form of ugliness that Americans (and especially Americans of a certain age) know all too well. 

This whole debate about bakers and florists would be the kind of thing that we could meet with little more than a rolled eye, if not for the fact that they are actually making some headway in state legislatures.  The state of Kansas managed to defeat the first of these bills to get real national attention, but that was just the preamble to a longer fight.  Right now, there are a pair of bills on the move in the Idaho legislature that would allow private employers, government workers, and businesses of all kinds to refuse service to gay people, so long as the deniers claim religion as their basis.  The Arizona senate just passed a similar piece of legislation, and the legislature of even the reliably blue state of Maine is considering the noxious idea.  Other states (Oregon, Tennessee, Ohio, Nevada, Utah, South Dakota, to name a surely incomplete list) are either currently considering, threatening to consider, or have narrowly beat back (for now) one of these odious bills.  The anti-LGBT movement has given full buy-in to this strategy, and this movement is nothing if not indefatigable.  This is unlikely to go away any time soon.

That being so, I have some questions for the pro-discrimination crowd.  I'm curious:

  • Why only the anti-discrimination laws that apply to LGBT people?   If a business owner can sidestep the protection as it applies to LGBT people, what stops a radical shopkeep from citing personal faith as reason to deny a customer based on gender?  Or race?  Or national origin?  And so on.  
  • How gay, exactly, does an occasion have to be in order to be turned away?   Weddings get all the attention, but what about anniversary parties?  Or Mothers' or Fathers' days where the apostrophes are where I placed them?  Or cupcakes for a California school's Harvey Milk Day celebration?  What, exactly, trips the wire so that the shunning of a customer goes from being an unfair business practice to being an expression of Christ's love?
  • Your side is fond of saying that the expanse of religious liberty doesn't end at the church door—so where does it end?  If licensed business owners can cite personal faith in order to get around public policy concerning discrimination in public accommodation, where should we expect it to stop?  If this is okay in state-licensed business practice, why not in public schooling? At the DMV? From cops and firefighters?  Where is the limit?
  • If this is your new standard, how will you equally apply it?  Will bakers start offering questionnaires demanding to know if brides- and grooms-to-be have been sexually active prior to marriage?  Will they follow all customers to their wedding receptions to ensure that the decorum and mores of the assembled guests is something they can personally support?  Or will they just be hypocrites?
  • If we pro-equality activists sought a bill granting us the right to sidestep anti-discrimination laws that protect people of faith, can you estimate (a) how much outrage you all would generate, (b) how quickly you'd launch some sort of national day to rally around the spurned customer, and (c) how little you would care about our conscience rights? 

Those are just a handful.  I have more questions, and I intend to ask them.  Because I am tired of playing defense against a movement that so proudly tears us down then so spinelessly accuses us of doing the ripping.  If they want to falsely paint us as the side that's on the offense in this debate about whether or not customers should be treated fairly, then we're going to have to go on the offense (without being offensive) and call them out on their cynical politicking, their fallacious narrative, and the dangerous precedent they're trying to impose on commercial exchange here in America.

So to recap:

What they're doing: they're making us sound like threatening bullies whose mere attempt to purchase an advertised product is tantamount to aggression.  

Why they're doing it: because the anti-LGBT movement's whole charade does depend and has always depended on making our basic freedoms seem thorny while making their crude, divisive, and exclusionary ideas smell like roses.  

Why we must challenge it: because I'm not willing to live in an America where it'll be common and acceptable to put signs like this in a store window:

Are you?