Arizona has a talent for scandalizing the nation, demonstrated this week by its state senate’s passing a law protecting religious bakers from legal prosecution should they decline to accept an order for a gay wedding. State senator Steve Gallardo, a Phoenix Democrat, protested that “the bill opens the door for discrimination against gays and lesbians,” and he is of course correct in both the narrowly legal sense and in the broader sense, too. The question that needs answering is: Should that discrimination be a crime?
“Discrimination” is a word that terrifies Americans, and rightly so. Our national history of slavery and forcible racial segregation is shameful. And while it may be the case that the American legacy is no worse than the legacy of many other countries in that respect and far better than a great many of them, “no worse than Saudi Arabia” is not the American creed. The subjugation of racial minorities is fundamentally incompatible with who and what we are. “Could have been worse” is for lesser countries; we should have been better. And should be.
Try turning the moral math around as a thought experiment: Imagine you are the gay owner of a restaurant in Chelsea, a member in good standing of the National Gay and Lesbian Chamber of Commerce, rainbow flag flying out front — and the cretins from the Westboro Baptist Church decide that they want to rent your party room for their annual “God Hates Fags” Sunday brunch. Shouldn’t you have the right to refuse? There is in this sad world such a thing as a Ku Klux Klan wedding — should the management of Harlem’s famous Sylvia’s Restaurant be prosecuted under civil-rights law if the establishment should decline to cater such a wedding? It is impossible for me to imagine that that should be the case.
Barry Goldwater, who set the great precedent for Arizonans’ shocking liberal sensibilities, had been an instrumental figure in the Phoenix desegregation effort but opposed the Civil Rights Act of 1964 because he believed that by expanding the federal mandate it would lead to cumbrous and byzantine federal micromanagement of social affairs, and about that much he has been proved correct. The concept of “public accommodation” has been so inflated that as a practical matter no private sphere exists outside the home when the question of discrimination arises. That situation does not inculcate mutual toleration and respect, but the opposite.
It is not 1964.
If anything, it is much more likely in 2014 that a business exhibiting authentic malice toward homosexuals would be crushed under the socio-economic realities of the current climate. That is a good thing for two reasons: One is that genuine hostility toward gay Americans is today a distinctly minority inclination but one that still should be challenged. The second is that it is a far healthier thing for that challenge to take place on the battleground of civil society rather than in the courts and legislatures. There is, after all, an almost infinite gradation of moral distinction between the views of well-intentioned people who do not wish to cater a gay wedding because of religious considerations and the odious, malicious position of Westboro Baptist et al. The courts and legislatures are poorly equipped to make those fine distinctions, but civil society has the ability to distinguish between an honorable disagreement and ill will. Americans are generous and good-hearted people who give every indication of being well-disposed toward letting their gay neighbors go about their private affairs with liberty and dignity, independent of what their policy preferences are in terms of marriage and related issues. I trust Americans at large to make the necessary distinctions much more than I trust the political institutions to do so.
“Live and let live” implies a two-way relationship. Mutual respect is an attitude that, like the biblical leaven, has to be mixed in thoroughly and evenly, until the whole is leavened.
— Kevin D. Williamson is a roving correspondent for National Review.