Xamonas Chegwé wrote:Nothing wrong with being scared of gays. Everything wrong with discriminating against gays when it comes to employment, whether or not they can buy from your shop, where they can live, whether they can marry, etc.
Why? If I'm a private employer who serves a religious community by selling religious supplies it would be harmful to my business to hire a transvestite drag queen as a salesman. The same might apply to less overt examples of "gayness." There's an important distinction to be made here, and that is there is "being homosexual" and "engaging in homosexually-oriented behavior." I agree that it's the right of any person to have a same-sex sexual orientation. That does not mean that everyone else must be required to facilitate same-sex sexual behavior, particularly in the workplace. Being gay is not a choice. Acting gay is a choice. Engaging in homosexual sexual activity is a choice. To be sure, it's my firm opinion that either of the two is well within the rights of every individual and society should have no authority to interfere with either acting gay or engaging in homosexual behavior. But anti-discrimination laws go far beyond mandating tolerance of the peaceable expression of rights of others, whatever those rights are. Anti-discrimination laws infringe upon the rights of individuals to discriminate with respect to with whom they will associate, known in the US as the "Freedom of Association Clause" of the First Amendment. The right to peaceably assemble and associate with those of your choosing carries with it, as the Supreme Court has said, the companion right to
not associate or assemble with someone, for any reason or no reason at all.
In short, the First Amendment guarantees a right of an individual to discriminate against other individuals or groups for whatever reasons the individual chooses.
Where the exercise of this right to discriminate begins to conflict with the rights of those who are discriminated against is central to the analysis of whether the discrimination is socially and morally acceptable or not and thus whether or not the discriminatory behavior can be tolerated or must be banned.
We have to begin the analysis with a look at history and how and why anti-discrimination laws came into being in the first place. In the US, these laws have their genesis in the overt and pervasive racial discrimination against blacks (and others, but mostly blacks) in the southern US. In the days before the Civil Rights Act, blacks were excluded from virtually all "places of public accommodation" not specifically designated for their use. This meant in particular eating and lodging places. The discrimination in the south was so pervasive that blacks traveling between states often could not find either accommodations or food on the road. It was so bad that blacks themselves set up networks of guest houses for black travelers so that they would have a place to sleep and somewhere to eat while traveling. It was the interstate nature of the pervasive discrimination that gave the federal government the authority to intervene under it's Commerce Clause authority because discrimination against blacks in the providing of public accommodations definitely affected interstate commerce and movement. The phrase "places of public accommodation" was originally intended to cover primarily restaurants and hotels/motels that catered to interstate travelers, but it was and continues to be expanded to cover virtually any commercial and some private activities.
In the beginning the law was justified by the Congress and the Supreme Court on the argument that the pervasive nature of anti-black discrimination, being so widespread and egregious justified the infringement upon the rights of "public accommodation" owners to freedom of association. The Court found a compelling need to combat the discrimination, and it ruled that the regulation achieved a valid public purpose of protecting a large segment of the public against very real harms, and that the "public accommodation" rule was sufficiently narrow to meet the strict scrutiny standards the law faced because it infringed on First Amendment liberties.
Where the strict scrutiny analysis gets into trouble in re anti-discrimination laws these days is when they intrude on not just the freedom of association rights, but also the free exercise of religion rights.
It's one thing to require an individual engaged in interstate commerce to serve all interstate travelers equally and without regard to their race. It's quite another thing entirely to require an individual engaged in intrastate commerce to facilitate behavior (not status) that the business owner has religious scruples about.
Serving a person of color a sandwich or renting them a bed to sleep in or selling them goods at the same price as they are sold to others is different from requiring an individual to use his or her artistic and creative abilities to facilitate a gay marriage in much the same way that forcing a religious order opposed to contraception or abortion to pay for or provide such devices or services on demand to employees is diametrically opposed to making contraceptives and abortions available to customers from willing sellers at the customer's expense.
Using the example of the wedding-cake maker who was ordered by a judge to create a wedding cake for a gay couple based on anti-discrimination laws, we can examine the nuance at work here.
Consider the distinction between a gay couple walking into a grocery store, or a bakery for that matter, and purchasing a cake off the shelf for use at their nuptial celebration and the same couple going to an artist and demanding that the artist make a painting, or photograph, or cake that serves the gay couple's desire to publicly acknowledge and advertise their sexual orientation.
In the first case the store owner need do nothing other than sell an existing item to a customer without regard to the eventual use or purpose for which the item is bought. If a kinky couple buys whipped cream for a sexual adventure, the store owner is neither privileged to know that nor should the sale be based on his personal objections to kinky sex because the mere purchase of a stock item conveys neither approval nor disapproval of the use of the item.
But in the second case it's not a stock item that's being requested that can be bought by anyone at any time for any reason. Instead it's an artistic work intended to convey a message about the subject of the work. A painting or photograph to symbolize the couple's status and commitment to one another, a cake to celebrate the nature of the relationship. As works of art each requires the input and artistic judgment and abilities of the artist involved, which in and of itself implies an approval of the subject. Would society likewise require a photographer to photograph a child-molester with his victim because it would be discriminating against him based on his sexual orientation? I doubt it.
So when it comes to providing public accommodations that involve the creative efforts of an individual there is an intrusion on the artist's right to free association and free exercise of religion that does not apply with the sale of ordinary consumer goods or the providing of public accommodations because the creation of a work of art implies something about how the artist feels about the subject, and the intrusion on personal beliefs and autonomy is substantially greater.
The same applies in some respects to the renting of housing. The example I like to use is the widowed survivor of a Nazi concentration camp being compelled by anti-discrimination laws to rent the basement apartment in her home to a tattooed, flag-waving, goose-stepping neo-Nazi. There comes a point at which the rights of the provider of a public accommodation must supersede the desires of another individual to make use of that particular person's talents or property.
The basis of racial anti-discrimination laws in the US was the
"widespread and pervasive" nature of the discriminatory behavior that effectively inhibited the ability of blacks to travel interstate.
Can we say the same about hiring a wedding photographer or commissioning a wedding cake or renting a home-based apartment?
I don't think so. I'm quite sure there are other cake-makers, photographers and landlords out there who will not have a problem with serving a gay couple, which removes the essential justification for the imposition of the anti-discrimination elements of the Civil Rights Act in the first place. Now if NO photographer or cake-designer anywhere is willing to provide such services, and there are no gay cake bakers or photographers and the inability to find such services becomes both "widespread" and "pervasive" in the US, leading to actual harm and detrimental effects on interstate commerce, then perhaps it might be necessary to regulate further.
But what I see now is the using of anti-discrimination laws not as tools of preventing businesses from refusing to provide services, but rather as offensive weapons against those who are not willing to buy in to the political agenda of gays.
And that's a misuse of the law's purpose and intent.
Homophobia is the most bodged example of lexogenesis ever! Firstly, "homo" means "the same" and means nothing in the context that it is used here without affixing "sexual"; secondly, it describes prejudicial behaviour, not fear or loathing. It is simply out of kilter with every other "phobia" in the dictionary.[/quote]
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