Theoretically, liberalism picks pluralism over public morality, nowhere more so than in the intimate realm of human sexuality.
But the regulatory state has gotten so large, and so powerful, with such extensive reach into Americans’ livelihoods, that the Left cannot resist using it to impose its sexual moral views on the rest of us.
Take Melissa and Aaron Klein, whose little Oregon bakery refused to bake a wedding cake for a lesbian couple. It is not technically a crime to refuse to bake a gay wedding cake, so instead of being tried in a court of law, they were tried by the Oregon Bureau of Labor and Industries.
Why can gay bakers refuse to bake a Celebrate NOM (the National Organization for Marriage) cake, but Aaron and Melissa Klein must bake a gay wedding cake or pay the penalty? Because the regulatory state is now redirecting to this realm the powerful public-accommodations mechanisms that were strengthened to put an end to Jim Crow — the systematic, ugly attempt by powerful Southerners to deprive black people of equal opportunities in the economy and the culture.
For African Americans, this was a horrendous problem. In 1906, Mary Church Terrell, an Oberlin grad and the daughter of two ex-slaves who rose to be successful Memphis business owners, gave a speech at the United Women’s Club in Washington, D.C., where she explained:
As a colored woman I might enter Washington any night, a stranger in a strange land, and walk miles without finding a place to lay my head. . . . Indians, Chinamen, Filipinos, Japanese and representatives of any other dark race can find hotel accommodations, if they can pay for them. The colored man alone is thrust out of the hotels of the national capital like a leper.
As a colored woman I may walk from the Capitol to the White House ravenously hungry and abundantly supplied with money with which to purchase a meal, without finding a single restaurant in which I would be permitted to take a morsel of food . . .
As a colored woman, I cannot visit the tomb of the Father of this country . . . without being forced to sit in the Jim Crow section of an electric car . . .
Nothing (thankfully) like this is happening to gay people. There is no complex of the economically and culturally powerful seeking to prevent their free access to ordinary American society. They have not only the courts but also the corporations on their side. Not only does Walmart fund gay-pride parades, its CEO publicly opposed Arkansas’s Religious Freedom Restoration Act.
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Let’s admit the good news: The free market is working fine, unless one believes it is necessary to the human dignity of gay people not to be exposed from time to time to the reality that a lot of people do not believe same-sex unions are marriages. There is no systematic effort to make sure bakeries shame gay couples or try to deny them the accoutrements of a lovely ceremony. There are only the small, sporadic acts of conscience by deeply religious people who are seeking, not to punish or oppress gays and lesbians, but to live their own lives as they choose.
But to the regulatory state this is intolerable. People like Melissa and Aaron Klein must be suppressed. They must pay $135,000 — which reaches into their personal property, not just the business assets — in damages for the “harm” of not making a gay wedding cake. And they were tried not in a court of law but by the Oregon Bureau of Labor and Industry.
Cato scholar Walter Olson (who supports gay marriage both politically and personally) points out that the regulators in this case treated Melissa and Aaron Klein’s statement, “This fight is not over. We will continue to stand strong,” as a violation of regulatory laws prohibiting businesses from advertising an intent to discriminate.
The vast octopuslike tentacles of the regulatory state are likely partly responsible for the sudden surge of corporations declaring against religious liberty.
The vast octopuslike tentacles of the regulatory state are likely partly responsible for the sudden surge of corporations declaring against religious liberty.
Rulings in a hundred different small matters can add to or subtract from the corporate bottom line. There is zero chance that the Republican party is going to punish you administratively for your liberal views on social issues, but a good chance that the White House will quietly put in a good word for you if you promote gay marriage.
That is how the new Missionary-Industrial Complex works.
Civil litigation is another arm of the regulatory state. The Southern Poverty Law Center just successfully used consumer-fraud law to put a small Jewish nonprofit out of business. The judge in this case ruled that in the state of New Jersey a nonprofit that uses the word “disorder” in a psychological or emotional sense to describe same-sex attraction is per se committing consumer fraud. Talk about chilling speech.
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David French just sprung a new one on me: insurance to protect against litigation risk. One insurance company just denied coverage to any church that refuses to perform gay weddings. Insurance is a highly regulated industry. Will that help or hurt traditional believers? Given the imbalance between Republicans and Democrats in the willingness to use the regulatory state to impose morality, I’m afraid the prospects aren’t good.
When government is this broad and vast, it becomes a fell weapon in the hands of people shameless enough to exploit it to punish people and views with which they disagree.
#related#The Weekly Standard’s John McCormack just asked several prominent Senate Democrats whether they thought, after Obergefell, that religious schools that don’t hire gay-married teachers should lose their tax-exempt status. Shockingly, only the lesbian in the bunch (Senator Tammy Baldwin of Wisconsin) knew the answer: “That is wrong and should not occur.”
Meet the New Left as it takes over the regulatory state and repurposes it. Aging rapidly, losing elections, but gaining power to impose its sexual morality.
Coming soon to your child’s Christian school?
— Maggie Gallagher is a senior fellow at the American Principles Project. She blogs at MaggieGallagher.com.