Tuesday, February 14, 2017

One-note operetta: Ryan T. Anderson at Witherspoon's blog

Ryan T. Anderson
Tuesday, Ryan T. Anderson has a new post up at Witherspoon Institute's blog. Anderson is in his element at Witherspoon which is an orthodox Catholic organization led by an Opus Dei numerary. Anderson's piece is titled “How to Think About Discrimination: Race, Sex, and SOGI.” The subtitle is rather lengthy:
Sexual orientation and gender identity (SOGI) antidiscrimination laws are unjustified, but if other policies are adopted to address the mistreatment of people who identify as LGBT, they must leave people free to engage in legitimate actions based on the conviction that we are created male and female and that male and female are created for each other.
If LGBT nondiscrimination laws are “unjustified” then they have no effect since justification is predicated on the prejudice and discrimination that LGBT people suffer. Anderson even explains the source of that prejudice. It might be his conviction based on his Catholic extremism that everyone is created heterosexual and transgender but that is not the scientific reality.

Anderson is a rather odd bigot. I suspect that he is a self-loathing gay man whose religious convictions keep him in the closet. Prior to Obergefell and various state marriage equality laws which preceded it, Anderson was one of the most visible proponents of marriage discrimination. Part of the argument was that same-sex marriage created victims of nondiscrimination laws. It never made any sense. Anderson tortured logic to cause a religious objection into something secular. He never succeeded because the simple truth is that his discrimination is based upon religion.

Now that he lost the argument Anderson's activism has shifted to the support of discrimination by public accommodations. His nonsensical arguments serve us well. They support the fact that nondiscrimination ordinances are required.

What Anderson is essentially saying, throughout, is that people require the right to discriminate based upon their religious beliefs and that such discrimination is “legitimate.” He has just justified that which he said what unjustified.

Anderson attempts to make his case:
In a new report for the Heritage Foundation, “How to Think About Sexual Orientation and Gender Identity (SOGI) Policies and Religious Freedom,” I argue that current proposals to create new LGBT protections with varying types of religious exemptions will not result in what advocates claim is “Fairness for All.” Instead, they will penalize many Americans who believe that we are created male and female and that male and female are created for each other—convictions that the Supreme Court of the United States, in Obergefell v. Hodges, recognized are held “in good faith by reasonable and sincere people here and throughout the world.”
Anderson floats this “Fairness for All” doctrine throughout the polemic as if that's something evil or undeserved. Anderson is intentionally confusing beliefs with actions. He is also suggesting that belief justifies discrimination. The Klan is a Christian organization. They believe that I, a Jew, am some sort of supremacist intent on the control of one world government. Does that give them license to discriminate against me?

Excuse me for a few minutes while I exact control over Hollywood, the media and global finance … …

I'm back. Now where was I? Oh, right, Mr. Anderson (who took the wrong pill):
… current SOGI laws, including “Fairness for All,” lack the nuance and specificity necessary for cases they seek to address. They take the existing paradigm of public policy responses to racism and sexism and assume that this paradigm is appropriate for the policy needs of people who identify as LGBT.
Public policy requires “nuance?” Seriously? Furthermore, LGBT nondiscrimination laws are quite specific. They identify sexual orientation and gender identity as protected classes. What on earth is Anderson trying to say? Simple really. To accommodate his superstitions laws protecting LGBT citizens, unlike laws protecting against racism and sexism, require religious exemptions.

Anderson continues verbosely:
Put another way, the legal response that was appropriate to remedy the legacy of slavery and Jim Crow is not appropriate for today’s challenges. Simply adding SOGI to far-reaching antidiscrimination laws and then tacking on some exemptions is not a prudent strategy. The policy response to the legitimate concerns of people who identify as LGBT must be nuanced and appropriately tailored. Antidiscrimination laws, however, are blunt instruments by design, and many go beyond intentional discrimination and ban actions that have “disparate impacts” on protected classes. Policymakers therefore need to rethink how to formulate and implement policy in this area.
He is just repeating himself for the third time. Nuance means religious exemptions to these laws so that people who are protected from discrimination on the basis of religion are free to discriminate on the basis of religion. Sorry. No sale.

Speaking of repetition, it continues:
Sexual orientation and gender identity (SOGI) antidiscrimination laws are unjustified, but if other policies are adopted to address the mistreatment of people who identify as LGBT, they must leave people free to engage in legitimate actions based on the conviction that we are created male and female and that male and female are created for each other.
We get it. According to Anderson we don't need protections against discrimination but if lawmakers persist then they must allow for people to discriminate based upon their religious beliefs which makes those nondiscrimination laws unenforceable. Keep in mind that, as Anderson explained at the outset, this is all predicated upon the religious belief that everyone is created heterosexual and cisgender. Anderson is probably a gay man. He knows just how preposterous his assumption is.

Anderson simply refuses to comprehend that he gives cause to nondiscrimination laws (while repeating himself):
Unfortunately, many proponents of “Fairness for All” assume that adoption of SOGI laws in some form is both a good thing and inevitable, and their arguments focus largely on how to mitigate the religious liberty harms of such laws. They do not argue the need for SOGI laws robustly, with facts and studies, and thus elide the question of whether that need requires SOGI laws to address it as opposed to some less drastic measure or measures.
Thus I repeat myself. Discrimination against LGBT citizens based on religion is not Free Exercise. That is free imposition and it gives cause to nondiscrimination protections. Refusing service to people that someone disapproves of (all neatly cloaked in scripture) is an intolerable form of discrimination. It is based on the utterly false proposition that people have the right to express their disapproval by withholding service. We live in a diverse society and we all pay for the things that make it possible to operate a public accommodation in the first place.

Yet, again, for good measure (and I am skipping past much of it):
For example, the Equality Act, the centerpiece of the Human Rights Campaign’s Beyond Marriage Equality Initiative, would add “sexual orientation” and “gender identity” to virtually all federal civil rights laws covering race—“Public Accommodations, Education, Federal Financial Assistance, Employment, Housing, Credit, and Federal Jury Service”—and expand them beyond their current reach. Moreover, it is explicitly designed to shrink existing religious liberty protections. It also would stretch the scope of “public accommodations” quite far. The Civil Rights Act of 1964—the purpose of which was to integrate half of the continental United States after centuries of race-based slavery and Jim Crow—covered entities such as hotels, restaurants, theaters, and gas stations. The Equality Act would cover almost every business serving the public.
That is not only repetition but factually incorrect. Public accommodations, by definition, do not change. Furthermore the Civil Rights Act of 1964 is not limited to race (as Anderson suggests) but includes other protected classes such at religion. The simple fact (sadly) is that the GOP controlled chambers of Congress and the President are not going to enact the Equality Act. For the time being nondiscrimination protections will continue to exist solely at the state and municipal levels.
… at common law, the term “public accommodations” is used to refer to public utilities, common carriers, and other natural monopolies that have a general duty to serve the public. Likewise, the federal Civil Rights Act of 1964 does not apply to bakeries.
Except that is incorrect and the issue is not common law. The issue is Title II of the Civil Rights Act of 1964. By definition a public accommodation is a facility which is open to the public. Examples include hotels, motels, restaurants, theaters, and all other public accommodations engaged in interstate commerce. Federal authority is vested in the Commerce Clause (Heart of Atlanta Motel v. United States). The concept goes back to at least the 16th century. English law required certain businesses — inns, stagecoaches, companies that carried goods, surgeons, and even blacksmiths — to serve any customer who could pay. The rationale is simple. By holding themselves as open to the public they had an implicit contractual obligation to serve anyone and everyone.

I don't know whether or not the 1964 law applies to a bakery. I do know, however, that there are no exemptions for people that one really, really, really disapproves of.
The biggest problem with current SOGI laws, including “Fairness for All,” is that they do not appropriately define what counts as discriminatory. To illustrate this, consider several different cases of putative “discrimination.” The law must be nuanced enough to capture the important differences in these cases.
That's nonsense (including the reference to “Fairness for All”). Discrimination is amply defined in law as unequal treatment based on membership in a protected class. Refusing service because someone is gay is discrimination. “Nuanced” is again a weasel word. It means religious exemptions giving one the right to discriminate against people they disapprove of.
Consider a florist who refused to serve all customers who identify as LGBT simply because they identified as LGBT. That would be a case of invidious discrimination because the mere knowledge that they identify as LGBT should have no impact whatsoever on the act of the florist selling flowers, because there is no rational connection between the two.
Refusing to serve any customer because they are gay is a form of discrimination. (I bet you know what's coming):
Now consider Baronelle Stutzman, the 71-year-old grandmother who served one particular gay costumer for nearly a decade but declined to do the wedding flowers for his same-sex wedding ceremony. The customer’s sexual orientation did not play any role in Stutzman’s decision. Her belief that marriage is a union of sexually complementary spouses does not spring from any convictions about people who identify as LGBT. When she says she can do wedding flowers only for true weddings, she makes no distinctions based on sexual orientation at all.
Stutzman's age and status as a grandmother are irrelevant. Equally irrelevant is the fact that she served gay customers in the past. To suggest that the customer's sexual orientation played no role is Stutzman's refusal of service is preposterous. Stutzman does not approve of gay couples marrying. That serves as de facto disapproval of gay people. Stutzman's beliefs about what constitutes a marriage she approves of are irrelevant. In fact, she is the very reason that nondiscrimination laws exist in the first place — to eliminate personal biases from the implicit contract of serving all of the public.

Furthermore, Mr. Anderson does not get to decide what a “true” marriage is because the Catholic Church claims that gay people are “objectively disordered” in the face of a mountain of scientific evidence that says otherwise. The last time I checked Obergefell v. Hodges settled that issue nationally. Anderson's approval is neither sought nor required.
This is seen most clearly in the case of Catholic Charities adoption agencies. They decline to place the children entrusted to their care with same-sex couples not because of their sexual orientation, but because of the conviction that children deserve both a mother and a father. … [stream of losing arguments in support of marriage discrimination].
Adoption agencies are doing the work of the state and are funded at the expense of all taxpayers. If they cannot do that work without discriminating there are other agencies that will. And, please, skip the mother and father bullshit. This is all about the Church's disapproval of gay people based upon slavish devotion to ancient chronicles.
Purported gender identity discrimination presents similar problems. The Washington Post recently reported on a woman who was suing a Catholic hospital for declining to perform a sex reassignment procedure on her that entailed removing her healthy uterus.
That would be a transgender man and Anderson's pronouns reflect his disapproval in light of the teachings of the Church. Under current laws I expect that he will lose the case. The fact that someone brought suit does not mean that the poor Church is being persecuted.
In any event, if analysis of the scope and extent of a need and of the cultural and social forces at play indicates that people who identify as LGBT have a legitimate need that justifies governmental action, then the government’s response must be limited to the proper scope and must accurately define what counts as “discrimination.”
Anderson's argument, based upon bakers and a florist who refuse service because of the customer's sexual orientation (and that is what they have done) is self-defeating. It explains why we have these laws in the first place. Moreover, try as he might, he cannot muddy the waters regarding the legal definition of discrimination and, according to the late Justice Scalia, there cannot be religious exemptions to otherwise valid laws (Employment Division v. Smith).
Because there was such widespread, entrenched systemic and institutional racism throughout American society in the 1960s, for example, and because social and market forces were not sufficient to remedy the problem, it was appropriate for government to respond. 
Anderson conveniently omits the fact that Congress also protected people from discrimination on the basis of religion and national origin. Perhaps when the Catholic Church stops trying to impose its pseudo-science on public policy the nondiscrimination laws on the bases of sexual orientation and gender identity will be less necessary.
“Fairness for All” advocates who believe the truth about marriage, human nature, and human embodiment should consider how the law would teach future generations that this truth is a lie and that a lie is the truth. Any good that an exemption from the law preserves for religious communities will pale in comparison to the damage that the law does in its pedagogical function.
What bullshit. Sane critical thinkers rely on social and medical science to discern what is truth. The eunuchs at the Vatican are pretty useless in that regard. But, hey, this is America and Anderson is free to believe anything he likes, no matter how nonsensical. What we resist is the effort to impose those beliefs on everyone else.

Finally this intellectually dishonest diatribe comes to a conclusion:
In the aftermath of the judicially imposed legal redefinition of marriage, the law should not be used to punish and hound those who continue to believe that marriage unites husband and wife. The law should respect their full and equal status as citizens.
I have skipped over a huge amount of the repetitive bombast. In all it is comprised of nearly 3,500 words when a paragraph would do. As long as he brings up the florist, marriage equality in Washington was achieved with the consensus of the electorate about a year prior to Obergefell. The argument that refusing service to a same-sex wedding is not refusing service based upon sexual orientation is ridiculous.

The law is not used to punish and hound anyone. It is used to prevent people from doing exactly what Stutzman did; refuse service. Stutzman wanted some attention and she got it. Now Anderson is perpetuating the losing arguments for marriage discrimination.

Few people accepted the idea that marriage discrimination should prevail because some people would refuse service contrary to nondiscrimination laws. Now Anderson is claiming that nondiscrimination laws should not exist because people have a legitimate need to discriminate. Legitimacy, in this case, is based on arbitrary religious beliefs. Ultimately Anderson has made a good case for why nondiscrimination protections based on sexual orientation and gender identity should be enacted and sustained.

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