I broke, sort of, away from my series of posts "What is going on with Christianity?" to comment on the recent Indiana making it legal to discriminate against gay and lesbian people. What is, some might ask, wrong with discrimination? In asking that question, I am not actually trying to be cute or fully or flippant. I suggested that one of the things people calling themselves "Christians" are asking the Indiana government to do is use the legal system to enforce their bigotry. And, I suggested that if any other religion were doing this ... just about everyone and their dog would be up in arms about it, as witness suggestions regarding state support for Sharia law in Canada. Why is this important? After all, someone might say, if I want to not serve someone coffee ... that is my right, is it not? I enjoy religious religious freedom. I should have the right to refuse to serve someone if I so desire in my own private business. Have not, someone might even say if they happened to have read this blog, you, Andrew, defended the rights of private institutions to limit what goes on under their roofs in the past?
I don't agree with any of these statements and I suspect most people who might happen to read this blog don't either but for the sake of argument -- and so we can be clear about our arguments -- let's have a look at this line of logic, as it were. There are a number of points that are really important to note.
First, legalized bigotry has a bad history ... a really, really bad history. As a person who studies history for a living (well, a good part of the time that is what I do), I'd like to believe that history is important. A better knowledge of history can, I think, do a number of things and I write periodically about these for another web site. I won't get into all that here but one of the things a better knowledge of history can do is show us how the implementation of similar ideas operated in the past and their effects. For instance, many of those people who opposed same sex marriage argued that it would, in effect, bring the downfall of civilization (you might notice that they have stopped saying that). I pointed out that we'd heard all that people. Equality between men and women, women working outside the home, equality between black and white, and many other things, were all supposedly going to cause the demise of the family or something approximating Bill Murray's Ghostbusters rant. Because civilization did not collapse in the past when changes were made that promoted equality, we had little reason to believe, I argued, that the prognostications of demise would be anymore right this time.
Likewise, I would argue that anytime religion has been used to justify bigotry, this have not turned out well. Religion, for ill, has been used to justify slavery, bigotry, sexism, homophobia, xenophobia, and all matter of other things. When Religion breaks boundaries and tears down the walls of society -- say, in the anti-apartheid movement or during the American civil rights movement -- it has had a positive and long-lasting effect. When it has been used as a cure-all justification for prejudice (God does not like ...), its effects have been historically noxious. What is more, this noxiousness is widely recognized by later generations. It is not a secret. We celebrate those Christians who resisted the Nazis and struggle to help Jews during the Holocaust. We condemn those who recycled anti-semitic garbage and so helped to do the Nazis' work for them. We recognize that the efforts to find justifications for slavery in the US led Christians to fracture their denominations, let them away from the words of Jesus, and toward ever more contorted views that ultimately contradicted the very religious views they claimed to uphold.
I suspect these laws in Indiana and elsewhere will end up like this. They will be aspects of American history at which people look back with a certain level of embarrassment, something for which later Christians will have to apologize. The first thing I would ask people to develop, then is some sort of future-oriented historical perspective on this issue. In fifteen or twenty or thirty years ... will you be the person who defended segregation or the person who challenged it? Will your religion lead you to embrace all people or will you use it to exclude people? How do you want to be remembered, as the person who campaigned for civil rights (marking with Martin Luther King Jr) or as the person who threw rocks at small children just trying to go to school?
What I am trying to say is that history does not simply tell us what we can or should believe. It provides us with a way of thinking about the choices we will make. This is an example where one has a choice in terms of how one will be remembered in the future, what your children or grandchildren will think of you.
This is important, I would argue, secondly, because the argument that is being made -- that somehow religious freedom is at stake -- is shakey. What we have, if I might be frank, is actually not a battle or conflict of principle. We have one side, in this battle, that is not animated by principle at all but rather is trying to find some sort of language thought which it can assert that there is a principle behind their bigotry and that their bigotry can somehow be maintained. In other words, we have people who are fighting, as it were, against history and against the image of themselves that (as bigots) that will be cast by history.
Why say this? Because, I suspect, we all know that a freedom of is not a freedom to impose your will on someone else. Freedom of is not, and never has been, the right to discriminate or marginalize, or construct certain people by virtue of innate characteristics as second class citizens, less worthy of simply getting a meal in a restaurant than, say, me. Again, we have historical parallels and those did not end well. Freedom is about a number of things. I would argue that simply formulations that we learn in intro politics classes (negative versus positive liberties, say) are useful but don't capture the complex meaning of those terms particularly as exercised today. Freedom is the right to do something, in Mill's classic formation, so long as it does not negatively affect another person. At that point, your freedom must stop because you are interfering with another. In return for this production (the right not to have someone interfering with our lives), we agree to be bound by the same rules. I will not interfere in someone else's life.
This situation in Indiana a clear example where that line is fractured. What the proponents of "religion freedom" are claiming is the right precisely to interfere in others lives. If I do not like gay people, I have the right to refuse to serve them or permit them in my establishment. The converse, of course, is not true nor is it true for other groups ... a point I will get to in a minute.
Freedom of religion is a very important freedom in our society. I don't know of many (or, perhaps any) people who oppose it. It is the right to practice one's religion (provided it does not harm another) unhindered by the state or society. Thus, for instance, one cannot make a law that prescribes some religions as illegal and its members subject to arrest. All religion perspectives -- including those who do not believe -- have the right to their perspectives and not be discriminated against because of their beliefs. I cannot, for instance, refuse to hire someone simply because he or she is Catholic or Hindi.
The third significant problem that I have with this law is that it makes a mockery of what is, in fact, an important freedom, defended by the constitution and protected by the courts. I think people's spirituality is so important to them that the state should interfere in this freedom only in the most limited way possible and only in remarkably extenuating circumstances. In other words, we should do our level-headed best to not mess around with other's spirituality. But, this does not give me the right to harm others in the process. By turning a very important right into a form of prejudice, we politicize that right, we turn in from a right into a tool of discrimination. This undermines the right and, frankly, leads people to question its sincerity. In other words, the law does not advance religious freedom (if that is even its aim) but actually hinders the operation of that constitutional protection by turning the idea into a tool of bigotry, rather than the noble right it should be.
Fourth, the operation of this law -- that it is OK to discriminate people if you believe you are right in discriminating -- is actually silly. People periodically say to me "yeah, Andrew, but regardless of what you think, these people sincerely belief that God hates gays and lesbians. This truly does harm their values." To which I reply ... so what? The sincerity of belief is never at question when it comes to the protection of rights. The people who thought blacks were inferior, fit to be a labouring slave class, sincerely and honestly and deeply believed that. The Nazis who thought Jews were a cancer on the body politics, sincerely, truly and deeply believed that. They were not just trying to find some sort of language to trick people and win an election. The constitution does not say "you have these rights unless someone else sincerely believes that you do not."
Pick another example to see how silly this sounds. "You have the right to free speech unless I happen to believe you don't and as long as I am sincere in my belief, you will be denied free speech." "You have the right to due process of law, unless I happen to honestly believe that you should not have this right. In that case, you don't." You can see immediately what is going on here. You longer have any rights because those rights are not rights but contingent on what others belief and, trust me, someone will also sincerely believe that you should be denied some right. The defense of this law, then, on the basis of the sincerity of its adherents is, well, a silly argument that demonstrates only that those making it have not really thought through their arguments in a very close way. Thus, the issue of sincerity is never at question and to state that it is, is to miss the point. To accept this argument is to place all rights in jeopardy.
This is not idle chatter on my part. If such rights were accepted by the courts, they become matters of precedent which can bind other jurisdictions and lower courts. The precedent that is being established is something, I suspect, more than the proponents of this law think. I think they think they are establishing this rule: it is OK to discriminate against gays and lesbians. But, what they are actually establishing is this: it is OK to disciminate. And, I think Americans and Canadians should ask themselves this question: is this what we want? We have spent the better part of the last couple of generations fighting against discrimination, against second-class status, against segregation, and all that is associated with that. Do you, I ask Americans, really want to say "you know what, for all that, my desire to not sell a sandwich to a lesbian is so great I am willing to say 'discrimination is OK.'" Where does it end? If we establish the principle that it is OK to discriminate ... where do we stop it? Gays and lesbians ... Blacks ... Jews .... I know people at my work who would discriminate against Christians if they could. The constitution prevents them, but I know people who would not hire a Christian if they could find a legal way to do it.
I oppose that but, oddly, those who say "discrimination is OK" my defend this right -- the right to discriminate against Christians on the basis of religious freedom -- if they want to be taken seriously. Thus, the same principle that defends the marginalization of gays and lesbians, if we accept it, can legitimately be used to refuse service or employment or admission (say, to a school) to anyone ... as long as you sincerely believe that your religion tells you do that. This is, I would argue, a disturbing development and one that I do hope Americans will avoid by nixing such laws right off the bat as opposed to trying to find ways to uphold them.
There are, then, a variety of good reasons to be concerned -- if you were an American -- about the Indiana law. It has no historical perspective and sooner or later its proponents will end up with the image of those people who defended slavery and segregation. They will appear as bigots and you might want to ask yourself, if you favour this law, is this how you want to be remembered? Will you be happy if your granddaughter thinks of you this way? In addition, this law makes a mockery of religious freedom and actually subverts a very important principle by politicizing it and turning it into a tool of bigotry. Third, this rule violates the first principle of freedoms (that they cannot negatively affect others). Fourth, it creates a slippery slope, precedent being what it is, the principle that is being established is that discrimination is OK. Before anyone embraces that principle, I urge you think about its implications.
Finally, let me return to the question I asked above: do private institution have the right to self-regulate. I've argued yes with regard to free speech. I (Andrew Nurse) cannot walk into someone else's house and claim that they have to listen to what I have to say. Thus, for instance, one cannot stroll up to pulpit when the pastor is preaching on Sunday morning and say "look, while I have your attention, can I offer you the deal of a lifetime ... its called Amway ... and ...." The church, as a private institution has every right to say "not now, no, this is not the forum." They cannot stop that person from speaking elsewhere. But, they can say "not hear."
The difference with Indiana is that we are not dealing with speech. Restaurants, I fully agree, have the right to stop people from making speeches that all the customers have to hear. I cannot just go into my favourite eatery with a blow horn and starting campaigning for the Green Party. And, I think everyone understands that and agree with it. Thus, private institutions can regulate the behaviour of people who are on their premises. But, they cannot discriminate on the basis of innate characteristics or protected areas of right. Thus, for instance, I cannot refuse someone admission to Mount Allison (say, to go to school, hear a concert or listen to a public lecture) because of the colour of their skin, their sexual orientation, their gender, or their religion. I can tell them that you cannot start distributing political information about hydro fracking during the concert and would be completely with the bounds of self-regulation to do so. But, I cannot deny that person entrance because they are Black or Jewish or a man.
I might have done a poor job of phrasing the difference in the past and, if so, mea culpa. I apologize for confusing you, but I assume you see the difference. Behaviour and innate characteristics are not the same thing and so have different protections under the law.
To sum up: I hope we are passing through a period of bad ideas with regard to the "let's discrimination against gays and lesbians" idea but I suspect that the proponents of these ideas will be around for a while. In the US, they are attempting to introduce new restrictions on individuals, another historical oddity. Over time, democracy has expanded and those scope of equality has expanded. A society becomes more democratic when more people previously prohibited by custom or law from participation stated to participate, when boundaries were broken and society became more inclusive. These new laws look to restrict that inclusion. For the first time in generations some Americans are looking to find ways to make their society more restrictive and less equal. This is a shame.
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