Magazine | April 20, 2015, Issue

A Place for Conscience

(AP Photo/Rick Callahan)
Anti-gay discrimination is wrong, but it is not Jim Crow

They call themselves the “New Civil Rights Movement.” In reality, that’s not a movement, but a group blog edited by David Badash, father of the Great Nationwide Kiss-In, a gay-rights protest. But the name speaks to an ambition, and to a rhetoric: that discrimination against homosexuals, from the criminalization of sexual acts to the queasiness that same-sex marriage causes in some people, is to be understood as the moral equivalent of the oppression of African Americans and should be extirpated with the same energy; that harboring reservations about the moral status of homosexuality or the social desirability of gay marriage should be the social equivalent of dropping an infamous racial slur into conversation.

As Governor Mike Pence and the people of Indiana are discovering, that is a powerful rhetorical strategy. Indiana has enacted a state-level version of the federal Religious Freedom Restoration Act, which was signed into law by President Bill Clinton after passing Congress with widespread (nearly unanimous, in fact) bipartisan support. The RFRA has been deployed against the so-called Affordable Care Act, notably in the Hobby Lobby case, and so is regarded among progressives as an expression of right-wing atavism. In reality, one of the few votes against the RFRA was from Senator Jesse Helms, the personification of congressional conservatism, who worried that prisoners would use RFRA protections to make mischief; some conservative drug warriors disliked that the bill was brought into existence partly to carve out a legal exception for peyote use in Indian religious ceremonies.

The federal RFRA is reinforced by 20 state statutes and by constitutional arrangements in another dozen or so states that impose similar limitations: When government acts to burden religious liberties, it must demonstrate that it has a compelling interest in doing so and that it has secured that interest in the least burdensome fashion. This leaves considerable room for judgment and negotiation, which is necessary. In the Hobby Lobby case, the Supreme Court found that the federal government had, in securing its interest in the wide availability of contraceptives, failed to resort to the least burdensome means, and threw out the mandate.

Beyond being a setback for Obamacare, the ruling pushed progressives’ civil-rights buttons by recognizing not only the rights of religious institutions but also those of individuals acting in concert outside the context of a church or affiliate, in this case through a closely held for-profit corporation.

Indiana’s RFRA presses harder still on those same civil-rights buttons, because it contains a provision not found in the federal statute or in most of the related state statutes: It allows for religious liberty to be raised as a defense in litigation to which the state is not a party. Contra the allegations of Apple CEO Tim Cook and Issie Lapowsky of Wired, Indiana’s RFRA does not “make it legal for businesses to refuse service to same-sex couples on the grounds of their religious beliefs,” as Lapowsky put it, though it is possible that a judge would accept an RFRA defense in a lawsuit resulting from such a case and that some RFRA supporters hope for that outcome.

That the gay-wedding reception really is the new Mississippi lunch counter (the phrase “lunch counter” seems to exist now exclusively in the context of civil-rights debates) is far from self-evidently true, but the belief is widespread, as is the similar belief that laws restricting marriage to (two) partners of opposite sex are morally indistinguishable from the laws that once forbade interracial marriage.

All discussion about discrimination in the United States has as its template the case of discrimination against African Americans, from slavery through the Jim Crow era to the civil-rights movement. This is an understandable intellectual tendency for the same reason that it is an error: The comprehensive political, social, and economic oppression of black Americans is unlike any other episode in American history. The history of organized and informal oppression of African Americans tells us little — or nothing — about the situation of other groups that are in a radically different position.

Consider another historical precedent that is probably a better analogue for discrimination against homosexuals: American discrimination against Jews. As with discrimination against African Americans, discrimination against Jews was — is — a moral evil. Like discrimination against blacks, discrimination against Jews is bound up in complex social psychology and ancient history.

But there are much more important differences: There have been practically no official anti-Semitic acts or policies perpetuated by the federal government. Jerome Chanes, author of Antisemitism: A Reference Handbook, puts the count at one: General Ulysses S. Grant’s infamous Order No. 11, which called for the expulsion of Jews from areas under his control. President Abraham Lincoln rescinded that order almost instantaneously. Jews arrived in the United States as émigrés and refugees, not as slaves. Organized non-governmental discrimination against Jews typically had teeth mainly at the commanding social heights: the infamous Ivy League quotas under numerus clausus; exclusion from many social clubs, vacation resorts, and the like, and, to a much lesser extent, under real-estate covenants. These restrictions were unjust, immoral, and surely humiliating, but they did not result in the categorical exclusion of Jews from American social, political, and economic life. Even when anti-Semitic feeling was at its most intense, the great majority of American Jews could expect to live their lives suffering nothing like the oppression that was meted out to black Americans.

The case of homosexual Americans is more like the case of Jewish Americans than it is like the case of black Americans. They are subject to discrimination and prejudice, certainly, and they have been subject to desultory acts of official oppression, too, notably laws that criminalize homosexual acts per se. Those laws were unwise and unjust, but they were never enforced with anything approaching the vigor with which segregation was policed. Like the exclusion of Jews from social clubs, the pressures that forced (and often still force) homosexuals to conduct their personal lives in secrecy were and are humiliating.

But the proposition that the social and political situation of gay Americans in 2015 is even roughly comparable to the social and political situation of black Americans in, say, 1950 is unsupportable. Far from being excluded and remanded to a lower tier of economic and social life, gay Americans do better than average on many fronts. A survey conducted by Prudential in 2012 found that homosexual respondents were more likely to be employed than average, and that they had substantially higher incomes, less debt, more savings, etc. A similar study conducted by the Williams Institute, a UCLA think tank focused on gay issues, found that men and women in same-sex relationships in two-earner households had substantially higher household incomes than their heterosexual counterparts and much higher levels of educational attainment. At rarefied cultural elevations, gays are if anything overrepresented.

Which is not to say that discrimination against homosexuals is acceptable because lots of gay Americans go to grad school and because Ken Mehlman is going to be a big shot in Jeb Bush’s campaign. But it is unquestionably the case that the social reality of gay Americans in the age of Tim Cook is not very much like the social reality of black Americans in the age of Jim Crow — and when we talk about a “compelling interest,” that reality matters.

The current state of the gay-rights debate — pitting civil-rights rhetoric on one side against religious liberty on the other — suggests very strongly that we are suffering from an unhealthy national tendency toward over-generalization rooted in false precedent. That the civil-rights movement organized to advance the condition of black Americans is a fitting and natural precedent to the movement organized to advance the condition of gay Americans is an exercise in question-begging, one that is, given the American temperament, almost inevitable.

In The Constitution of Liberty, F. A. Hayek argued that legislatures could be expected to limit themselves to legitimate uses of government coercion if they restricted themselves to passing laws that were generally applicable, neutral, and abstract. That is an indispensable part of the liberal legacy; it is the reason our Constitution forbids bills of attainder and ex post facto punishment, both of which are temptations to divert the law from the project of securing the general welfare to that of directing it toward the advantage or disadvantage of a particular group. The elevation of generality over narrow communal interests is an important part of what distinguishes the liberalism of the Anglophone world from the feudalism that preceded it and from the brute-force interest-group democracy that threatens to consume it; at the same time, it pushes the prudent in the direction of the absurd in the name of consistency, as though discrimination against the descendants of slaves, in the context of centuries of ruthless oppression, were no different from a prejudice against gingers or the left-handed.

There is real wisdom in the Hayekian drive toward the general, but it is not the only wisdom. Conservatism is grounded in the understanding of — and perhaps even the love for — real life, in all of its bewildering specificity and concreteness, as opposed to what Russell Kirk called the “narrowing uniformity” of the progressive visionary.

Generalization is valuable — generally.

Political conflicts very often are the result of competing general principles. That was the case with much of the civil-rights movement, especially with regard to the Civil Rights Act of 1964. On one hand, the condition of black Americans was a blasphemy against the fundamental American premise, which is a theological premise — that all men are endowed by their Creator with certain unalienable rights — and demands that there be no separate people within the republic held subject as effectively a hereditary condition. On the other hand, the American constitutional order restricted what the federal government could do to ameliorate such aspects of that situation as were not the result of federal policy or of state and local policies subject to federal preemption. Any individual act of discrimination might be considered trivial on its own, constituting no compelling reason to violate property rights or freedom of association; but in the aggregate, those exclusions created a situation that was ultimately incompatible with the American premise. Addressing that problem meant doing violence to the American constitutional order by extending federal intervention into state and local affairs to an unprecedented degree under a tortured interpretation of interstate-commerce powers, something that many of the conservatives at that time (Barry Goldwater, famously) thought too high a price to pay, considering the advancements that already had been made and the price paid for them. That has, incidentally, been the recurring fallacy of the Republican party on the matter of African Americans: Whether it is Gettysburg or the 13th Amendment or the civil-rights progress of the Eisenhower years, Republicans are always hoping to close the book, to declare the work done when it remains incomplete.

That constitutional violence was masked by the doctrine of the “public accommodation,” which is a venerable legal sophistry designed to obscure that private property is treated as public when politically convenient. We are not very serious about “public accommodations” independent of hot-button social considerations; try getting yourself admitted to a fashionable nightclub in Hollywood while being an unprepossessing middle-aged man wearing Dockers and traveling with similar company. Such would-be party people are excluded for the same reason that blacks once were excluded from restaurants — because they simply are not wanted there — but such discrimination is hardly invidious. Online classified advertisements for apartments in big cities regularly warn that no Republican need apply, which is actually illegal under some state laws, a fact that does not seem to bother anyone very much. But if a baker does not wish to provide the refreshments for a gay couple’s wedding, then the state of the “public accommodation” becomes a national priority.

If the gay-rights and specifically the gay-marriage movement is similar to the civil-rights movement, it is in that it presents us with competing goods: It is difficult to see how the social exclusion of gay Americans serves any desirable end, but people of good faith should respect both conscience and piety. An unusually high degree of respect for religion’s role in public life (compared with, say, Western Europe) is part of the American character, and one for which progressives should be at least as grateful as conservatives: We have a secular government that leaves both the atheistic and the ultramontane free to evangelize as they will because the Mayflower was full of Christian radicals, not in spite of that fact.

And there is the not-insignificant matter that, in a free society, one has the right to be wrong.

In the case of the original civil-rights movement, it was obvious that something needed to be done, though it was not obvious what that was. It is far from obvious that gay Americans are in a comparable position — it is in fact obvious that they are not. Our general principled tendency toward rejecting discrimination of various kinds is an admirable part of our national character, but it need not always be a police matter (see those Republican-excluding Craigslist ads), and it should be constrained by a sober evaluation of the facts of the case. Equal treatment — not only under the law, but socially as well — is, as a matter of principle, good. But it is not the only good. The great irony is that in our time the machinery of the state is being used by gay-rights activists to enforce ruthless social conformity, even though gay people themselves were not so long ago on the receiving end of the same sort of bullying. But that is the Left’s general model of progress: The opening gambit is a plea for tolerance, and the end game is a bayonet.

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