With a BA from Brigham Young and JD from Yale, Smith is presumably a Mormon and presumably a smart guy. What I cannot figure out is how he ended up at USD. He had either a named professorship or an endowed chair at Notre Dame School of Law. The same then at Colorado School of Law. He has moved twice from those situations which is unusual.
Getting to selected portions of his piece:
Over the past several years, bakers, florists, photographers, and marriage counselors who are religiously opposed to same-sex marriage have taken part in highly publicized court cases. Thus far, courts have declined to accommodate the religious objectors, leading some to perceive an alarming retreat from the nation’s longstanding commitment to religious liberty.Smith is being intellectually dishonest. I am reasonably certain that the professor is familiar with Scalia's opinion in Employment Division v. Smith regarding religious exemptions to otherwise valid laws. Scalia pretty much relegated the idea to an absurdity. Moreover, there is nothing new or novel about nondiscrimination laws challenging religious privilege. It used to be perfectly legal and quite pervasive to deny service to Jews. That, too, was based on a religious objection. The “gentleman's agreement” ended with the 1964 Civil Rights Act more than a half-century ago. Moreover, the pretext for segregation was often based upon scripture.
Progressive critics are typically dismissive of these concerns. For the progressives, the current controversies leave a sense of déjà vu: they are simply reruns of the civil rights conflicts of the 1950s and ’60s. …Discrimination is not a “controversy.” Furthermore, most of the people who make the comparison do so, not because they are similar, but because of a claim that they are dissimilar. Nevertheless, the concept is pretty much the same. A majority group wants to deny services to a minority on the premise that the minority group is morally inferior to the majority. Much of segregation was based on the notion that black men were predators, determined to rape white women. The difference with gays is that we are predators, determined to “recruit” and rape children.
But are the religious objectors truly the heirs of the lunch counter segregationists? Are the activists and academics who would force a Christian photographer or florist to participate in celebrating a same-sex wedding the legitimate successors to the civil rights activists of the 1960s?It is the citizenry that requires public accommodations to serve LGBT people equally. If the representatives of the citizens wanted religious exemptions in those laws, there would be religious exemptions in those laws. When some states, Rhode Island for example, enacted marriage equality prior to Obergefell it came with some (albeit limited) allowances for religious dissenters. In the case of Rhode Island they ensured that the Knights of Columbus would never have to rent out a facility for a same-sex marriage. Furthermore, it is — again — intellectually dishonest to claim that a wedding vendor “participate[s] in celebrating a same-sex marriage.” They simply exchange goods or services for money. Perhaps this would be more obvious if they objected to a Christian-Jewish wedding.
Speaking generally, we might describe three basic strategies that have from time to time been used in dealing with the nation’s various diversities. Suppressionist or eliminationist strategies address diversity by seeking to eliminate differences. Segregationist strategies attempt to reduce conflict by directing the differently composed constituencies into different spheres or neighborhoods. … Conversely, inclusionist strategies attempt to accept and respect the differences that have proven divisive …Smith has just claimed that the purpose for segregation was to reduce conflict. That is precisely what he wrote. Rubbish! Smith is actually repeating the talking points of odious people like George Wallace. The purpose for segregation was to eliminate black people from full economic and cultural participation in society. It was a zero-sum proposition: “More for them means less for us.” The intent was to create a class system with blacks in the lower strata.
“Segregation” … has a well-earned negative connotation. But although racially segregated restrooms were a manifestation of deep injustice, maintaining separate restrooms for men and women has, until recently, been thought by progressives and traditionalists alike to be an appropriate response to sexual difference.Oh, please. I have seen this movie before. The core of this argument is not really about separate bathrooms. Rather, it is the unwillingness of some religious people to accept the simple fact that a transgender woman is a woman and a transgender man is a man. I thought that this piece was about the unfair treatment of Christian wedding vendors. How did we end up in bathrooms?
… the Civil Rights movement of the mid-twentieth century can be appreciated as a sustained and heroic effort to repudiate the segregationist strategy that had previously been used to deal with racial diversity and to replace it with a self-consciously inclusionist strategy. No more “separate but equal” schools. No more separate sections of the bus or lunch counter. From now on, Americans of all races would all study and work and eat together.Well, integrated schooling required the Supreme Court to rule in Brown v. Board of Education in 1954. More than four years later, Cooper v. Aaron was required to enforce the ruling in Brown. The segregationists did not go willingly to enlightenment.
In itself, the modern campaign for gay rights has been primarily inclusive in its aims. The goal has been to allow people who identify as LGBT to participate in education and employment without having to deny or conceal their sexual or gender orientation. In that respect, the movement can plausibly claim to be continuous with earlier civil rights efforts. When LGBT activists insist on forcing a Christian florist or photographer to join in celebrating a same-sex wedding, however, they abandon the inclusionist project in favor of a strategy that is more accurately described as either suppressionist or segregationist.Oh, horseshit. Smith should not deem himself qualified to speak for the LGBT community. The goal has always been equal protection and equal participation. We are still a very long way from equal employment opportunity. In some locales we are afforded legal nondiscrimination protection with respect to housing, possibly employment and possibly service in public accommodations. Those laws should be respected. Law — not activists — requires public accommodations to serve people without discriminating. Claiming that the law forces anyone to “to join in celebrating a same-sex wedding” just adds more turds to the turd tower. The law cannot force anyone to celebrate anything. Claiming that this is somehow segregationist is utterly preposterous.
The real victims of the BS are the gay couples who are told “we don't serve your kind here.” It leaves a scar. Were these people less self-absorbed they might understand the impact and implications of being denied service.
Perhaps progressives hope and expect that, under the heavy weight of the law, traditionalists will abandon their religious conviction that sexual relations should be confined to marriage between a man and a woman. If that is the expectation, then the project would appear to be one in suppression or elimination: disagreements about marriage and sexuality should be eliminated by using law to make one side disappear.They are free to believe anything that they want. What is really at issue is that they think that the world revolves around them and their religion and service is the equivalent of approval. They seek the legal right to demonstrate their disapproval. Their approval is neither sought nor necessary which they find quite disturbing. They desperately want this measure of control which we will not cede. I want to see what would happen if a gay caterer decided not to service Christian weddings.
And if they are indeed celebrating then they have celebrated a fair number of divorces, re-marriages, fornication, pregnancies prior to marriage, second or third marriages and so on. Oh, but the homosexual — that's different.
More commonly, though, what we hear from the progressive side is that the Christian florist and photographer and marriage counselor are still free to retain their private religious convictions about marriage. They simply cannot act on those convictions while carrying on the business of florist or photographer or counselor. Such religious commitments should be left behind when the believer enters the public square. If a believer is unwilling or unable to make that sacrifice, then she should stay at home or find some other line of work.That is the opinion of every court that has heard any of these cases. Free exercise is freedom to believe, to worship as one pleases. That does not extend to inflicting their beliefs on others. Quakers have to pay taxes even though a good chunk of it funds our war machine. Hasidim and other conservative Jews also pay taxes even though the government subsidizes pork production with some of that money. My religion requires that I drive a minimum of 75 MPH.
If one does not like the law then one can attempt to change it. That's how the system works. Victimizing a gay couple by refusing service is not an acceptable option in a society of laws.
This position is overtly segregationist in its strategy for dealing with religious diversity. Those who take this view are analogous to the 1960s segregationist who said, “Of course there’s a place for you: it just isn’t here (in this school, or this section of the bus, or this end of the lunch counter).” In that respect, it is the contemporary progressive, not the Christian florist or photographer, who is the faithful heir of Jim Crow.Go away Mr. Smith. I welcome and enjoy an intellectual challenge but this is just gibberish. Your Jim Crow analog is absurd and your definition of segregation is mythology of convenience. I am beginning to get a glimmer of why this guy's career path might be what it is.