Wednesday, July 1, 2015

Article of faith or demonstration of disapproval?

Mr. Perkins is smiling and frowning at the same time for a reason
We don't make laws – we should not make laws – that facilitate the disapproval of a minority group.

Since last Friday's Supreme Court's marriage decision conservative Christian groups have tossed around many suggestions for “resistance” to what is now the law of the land. They are also using grassroots activism to further the First Amendment Defense Act (more on that here) which would provide express federal permission to discriminate in order to demonstrate their disapproval of gay people.

FADA is not going to become federal law (it seemingly lacks sufficient support). However, the intellectually dishonest arguments for its passage will persist. It is the argument that deserves attention.

In an email to supporters Tuesday evening Tony Perkins, head of the anti-gay hate group Family Research Council, solicits support for FADA. According to Perkins the act is necessary “to stop the federal government from religious discrimination.” It's worth noting that the Religious Freedom Restoration Act does just that. The problem, for Mr. Perkins, is that someone has to demonstrate that the government is creating a “substantial burden” to free exercise. FADA's purpose (and the purpose of most of those state RFRAs) is to lower the bar. Perkins points out:
Businesses and organizations continue to be threatened because of their owners' faith. An Oregon bakery owned by Aaron and Melissa Klein was fined $135,000 simply for declining to make a wedding cake for a same-sex wedding. Barronelle Stutzman, a grandmother in Washington state, had to close her floral business because of the crippling fees imposed on her for not providing flower arrangements for a same-sex wedding.
Neither of these situations would be affected in any way by FADA as it would have no effect on state and local anti-discrimination laws. In both cases the proprietors refused to perform a specific act, contrary to valid laws, within their establishment which is a public accommodation. These cases should cause us to ask a basic question.

Did they deny service because:
  • a) Performing the service would have created a substantial burden on their free exercise of religion or; 
  • b) The proprietors wanted to make a point by demonstrating their disapproval of a minority group?
I'm inclined to think that, in both of these cases, it was the latter objective that was the prevailing motivator.

I have had the opportunity to review Ms. Stutzman's case in more detail. In my opinion, not only did she refuse service to make a point but, after marriage equality came to Washington, she was relishing an opportunity to make that point. She knew what she was going to do before the gay gentleman entered her store and she welcomed the chance to do it. She probably acceded to the calls of Christian organizations to protest marriage equality and, at the same time, to become a martyr for the cause.

As an aside, ADF had the most to gain. It's Christian calculus. If they can create a high profile case with a sympathetic defendant they know that the donations they receive will far outpace their costs to defend the matter. That is the business model.

It is important for us to ask the question as these cases arise: Is this a burden on free exercise or were the actors trying to make a point? And arise they will as Christian groups angrily call for acts of civil disobedience and resistance to a Supreme Court decision that they do not like.

In turn these instances will be used by those same organizations to cynically advance various forms of legislation at the state and federal level that are intended to allow Christians to discriminate against gay people. We don't make laws – we should not make laws – that facilitate the disapproval of a minority group.

The cynicism doesn't stop at lobbying for what is effectively anti-gay legislation. They are lobbying for anti-gay discrimination in order to replenish their own coffers. They have been doing this for decades. In one sense, same-sex marriage was a huge gift to FRC and its ilk.

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