Social Conservatives on Anti-Gay Discrimination: Incoherent or Just Cowardly?

Rob Tisinai

July 23rd, 2014

Gays present mainstream social conservatives with a great dilemma, because they try to hold such contradictory positions. For instance

  • They want to oppose laws outlawing anti-gay discrimination by using  the rhetoric of liberty, so they don’t look like obvious anti-gay bigots (we’re talking mainstream so-cons, of course).


  • They want to avoid the PR disaster of looking like they oppose laws outlawing racial discrimination.

But this trips them up, because to achieve the first goal, they often don’t talk about gays at all. They use code words like religious freedom and freedom of association. But that makes them run afoul of their second goal, as I recently summarized in this graphic:

cant have bothYou can see this conflict in Ryan Anderson of the Heritage Foundation. Now that NOM is nominal force in the culture wars (thanks, Richard Rush!), I pay them less attention and focus it more on Ryan, who represents an influential conservative think tank and edits an intellectual mouthpiece, The Public Discourse.

Ryan has tripped up on this contradiction before, and recently he’s just made it worse. To refresh your memory, Ryan tweeted a while back that “you have no right to have anyone bake you a wedding cake.”

Someone reasonably asked, “Bakeries aren’t able to turn away interracial couples. Why is anti-gay discrimination more acceptable?” And Ryan answered, “racism is wrong. Marriage has nothing to do with keeping the races apart. Marriage is about uniting male and female.”

The problem is that many racists would disagree, and disagree on religious grounds. This forces one to conclude that Ryan is only concerned with freedom for religious beliefs that he approves of, which isn’t religious freedom at all, but a theocracy with Ryan in charge.

Lately, he’s had to alter his message. He wrote a long, long post on 6 steps for moving forward in the battle against our rights; step 2 is “Defend our form of government and our liberties.” He starts with the familiar refrain:

Indeed, a regime of free association, free contracts, free speech, and free exercise of religion should protect citizens’ rights to live according to their beliefs about marriage…

Private actors should be free to make reasonable judgments and distinctions — including reasonable moral judgments and distinctions — in their economic activities. Not every florist need provide wedding arrangements for every ceremony. Not every photographer need capture every first kiss. Competitive markets can best harmonize a range of values that citizens hold. And there is no need for government to try to force every photographer and every florist to participate in every marriage-related event.

Of course, if you take this not as a statement about same-sex marriage in particular, but about policy decisions in general, Ryan has put forth an argument for allowing business to turn away interracial couples.

We know how Ryan would answer that (“racism is wrong!”) and I imagine he might try to get around my accusations of theocracy and selective religious freedom by claiming he can prove racists are wrong while opponents of marriage equality are right, and that the government has no need to protect the wrong’uns. This was the great goal of his What is Marriage? project with Robert George, and of course we know that failed.

Even if it had succeeded, though, Ryan would still have to give up his but racism is wrong! strategy. In the wake of the Hobby Lobby, Ryan wrote that religious freedom must include all religious beliefs, even if they are wrong — even if they are, in his words, “unfounded, flawed, implausible, or downright silly.” He sums up his thoughts by saying:

The right to religious freedom is for everyone, not just for those with the “right” beliefs.

And now he’s back in the awkward position of opposing bans on discriminating against interracial couples. He can’t even claim a compelling public interest for those bans — not when he’s written, “there is no need for government to try to force every photographer and every florist to participate in every marriage-related event.”

He’s playing intellectual whack-a-mole: every time he solves one problem he creates another. He can’t synthesize these views into a coherent whole. They only make sense piecemeal. If I ever got to debate him, I imagine it going like this:

Ryan: No one should be forced to serve someone against their conscience!

Me: So businesses should be able to turn away interracial couples?

Ryan: No, because racism is wrong!

Me: So you only support religious freedom for views you agree with?

Ryan: No! Religious freedom protects even views that are wrong.

Me: So businesses should be able to turn away interracial couples?

Ryan: No, because racism is wrong!

Me: So you only support religious freedom for views you agree with?

Ryan: No! …

And so on, ad infinitum. 

You might be wondering what this has to do with Hobby Lobby. Ryan supports that decision, of course, though it’s come under fire because many scientists have argued the contraceptives Hobby Lobby objected to as abortifacients aren’t abortifacients at all. Ryan obviously wants to avoid arguing on shaky scientific ground, so he has to abandon his but racism is wrong! approach in favor of religious freedom protects even wrong beliefs. 

So that leaves Ryan and “principled” social conservatives in a bad spot. They want to oppose protections for LGBT folk, they want to sound like advocates of freedom rather than anti-gay bigots, and they want to support civil rights for blacks and other select minorities. But they can’t have it all, and it’s our job to let people know it. It’s hard to know whether they’re sincere in all these positions or just politicking; whether they’re incoherent or just too cowardly to be consistent. Either way, their arguments simply knock each other down.

In the next few days I’ll look at the other planks of Ryan’s plan for pulling back our rights.  Spoiler alert: They don’t impress.

Mark F.

July 24th, 2014

They should–quite obviously– take the libertarian position that it’s wrong to discriminate on the basis of either race, religion or sexual orientation, but that such discrimination should be legal. Then they would avoid twisting themselves up in logical pretzels, and would not be in a position of demanding special rights for themselves.

Gene in L.A.

July 24th, 2014

Mark F. If it’s wrong to discriminate on those bases, why would libertarians not want it to be illegal? That seems to me to be another irreconcilable contradiction.


July 24th, 2014

An even bigger contradiction is that they believe the lifestyle choice of religion should be protected from discrimination, so gays and lesbians should be forced to serve those who reserve the right to refuse them service.

Robert Hammond

July 24th, 2014

Gene in L.A.
If a busness is so inclined to be really, really stupid and turn away busness for what ever reason they should have that rite. The only exception I can see are hospatals and schools that are publicly funded.


July 24th, 2014

Don’t expect the likes of Ryan Anderson to be at all fazed by their own logical inconsistencies. They’re not coming from a mindset that is based in rational thought — indeed, rational thought is probably, to many of them, a sin. It’s all about belief, which, as we’ve seen from the Hobby Lobby decision, trumps fact, even in courts of law. So it’s not much of a contortion for them to believe that discriminating against mixed race couples is wrong (at least, those that do hold that belief), but discriminating against same-sex couples is perfectly all right and even necessary to adhere to their cherry-picked “moral code,” such as it is.

And as far as your hypothetical ad infinitum challenge to Ryan, Ryan is perfectly capable of repeating himself for eternity. That’s what he does for a living.

Priya Lynn

July 24th, 2014

Robert said “If a busness is so inclined to be really, really stupid and turn away busness for what ever reason they should have that rite. The only exception I can see are hospatals and schools that are publicly funded.”

The theory that everything will be fine if we do that is nice but history shows its wrong. When busineses were allowed to discriminate against blacks and Jews it often created great difficulty for those minorities and despite any pollyanna claims to the contrary about the “free market” the same has (and will) happen if businesses have the right to discriminate against gays.

There’s little point in having a society if it doesn’t protect all from such unreasonable hardship particularly when the process of doing that doesn’t cause any significant infringment on the freedom of bigots to live as they choose.

No I know some will disingenously claim requiring a business to bake a cake for a gay wedding is slavery but that is nonsense. If you don’t want to abide by the rules businesses are required to operate under no one is goingn to force you to continue to run that business so this isn’t slavery – you can quit anytime you want to. If being required to bake wedding cakes for gay couples is slavery then being required to follow regulations such as collecting taxes for the state to operate your business is slavery and of course that is nonsense.

Mike Michaels

July 24th, 2014

The problem with your perspective is that you are trying to use LOGIC to refute the opinion of a person who has come to their conclusions by FAITH, not facts. Nothing you say can convince them their argument is wrong.

Paul Douglas

July 24th, 2014

Robert Hammond said,
“If a busness is so inclined to be really, really stupid and turn away busness for what ever reason they should have that rite. The only exception I can see are hospatals and schools that are publicly funded.”

That worked out really well for African-Americans, didn’t it.

Ben in oakland

July 24th, 2014

Priya, more to the PRACTICAL point…

I was a wedding photographer for 30 years. There were constantly people coming through my door whose wedding I did not want to shoot, mostly because I simply didn’t like them and thought they would be trouble. Perhaps twice, there were people whose wedding I didn’t want to shoot because they belonged to an ultra-fundamentalist church that made its money out of being antigay. I didn’t tell them “no”, because that would have been illegal. and had I done so, I certainly wouldn’t have told them why. I just made myself unappealing to them.

It is a very, very easy thing not to work for people you don’t want to work for. You simply tell them you’re booked, you’re going on vacation, or as I did twice, that my partner was also my assistant, and we hoped to be married some day, just like them. THAT did it. You then refer them on to some other vendor who is happy to have the work.

The problem, as you yourself have noted on several occasions, is that they cannot be content with simply turning the business away and referring it on. They have got to tell you WHY. It ALWAYS boils down to their pathetic need to proclaim themselves as bible-believing Christians, to proclaim themselves as your moral and human superior, to suffer persecution and martyrdom for “My name’s Sake”…

and, as extra frosting on the Twinkie, to proselytize. That particular bit is never really far from their minds, no matter how much they claim it is about something else. I’ve had that experience repeatedly with people who claim they wish to build bridges between the communities of the bible-beaters and gay people.

Though I support anti-discrimination laws, I firmly believe that enforcing them should be saved for the most egregious cases, ones where actual harm is caused and intended, not merely feelings being hurt. I really have no desire to feed either people’s unwarranted faith in their wholly imaginary superiority, or their wholly unwarranted belief that they are being persecuted for being assholes– not to malign a perfectly useful orifice.

What I don’t understand in the whole of Rob’s column is why this debate is not being framed in terms of the obvious– discrimination on the basis of religious belief. We have laws at every level of government which forbid discrimination on the basis of religious belief. Why is this any different, apart from it being about sex in our deeply puritanical– read sex-obsessed– culture?

It has been documented over and over again that the Catholics and the Mormons, along with other religious conservatives, were the primary organizers, financiers, movers, and promoters of Yes on 8. In fact, they are proud of it. Their arguments were primarily religion based: it’s against our religion, God ordained that marriage is between a man and a woman, ministers will be jailed, churches will be taxed and/or sued, religious freedom violated. The President of the Mormon Church sent out a letter encouraging Mormons to “do what they can”, resulting in millions in out-of-state donations. Pastoral letters from the Catholic Bishops were read in church; Bishops Niederaur and Mahoney have trumpeted their parts in this, claiming that they are only doing their Catholic duty. Brigham Young university students were encouraged to phone bank. All of this to enforce a certain, conservative religious view about homosexuality, and place a religious view about same-sex marriage onto the civil contract of marriage. The state, by virtue of the First Amendment, is supposed to be neutral in religious matters. By enforcing 8, the state is not being neutral. My marriage is a civil matter, with nothing to do with anyone’s religion but my own. We don’t have to attack people’s religion. But we to have to start talking about religion, freedom of religion, and the difference between religious belief and civil society.

I asked this question of Olson and Boies when they were in San Francisco a month or so ago. “We have laws at every level of government which forbid discrimination on the basis of religious belief, yours or mine. Why is it that as a Jew, a Hindu, or a Muslim, I can reject the totality of your religious beliefs, and this bothers no one but the most rabid of fundamentalists. No one’s rights are being impinged upon. But let me say that I am gay, and reject just this TINY part of your religious belief, and suddenly, your rights are being trampled upon.”

I don’t remember their exact response, but it was very unsatisfactory. Basically, they said that it had been addressed in a very roundabout and indirect way that perhaps only a lawyer can appreciate. But it certainly was not and has not been addressed directly, and in as many words.

I simply don’t understand why not. We have the entire history of antigay Christianity. We have sodomy laws which in my lifetime forbade “The infamous crime against nature, not to be named among Christians.” We have to demonstrable involvement of organized religion FOR and AGAINST ending this vicious prejudice.

It simply boggles my mind that we are not asking this question every time, and loudly.


July 24th, 2014

Their incoherence stems from their cowardice which is itself a direct consequence of their fear. Fear that if some other way, some other belief is right – they might be wrong; and if they are wrong in their ways, if their beliefs are in error – their whole existence requires reassessment. They believe (and I suspect correctly) that they lack the wisdom and the courage to do so.


July 24th, 2014

Gene in LA: Since Mark F. hasn’t gotten around to answering your question, I’ll answer for him:

Not everything that is wrong needs to be made illegal.

I look at this from the point of view of being pro-Choice on abortion. There are some cases and some situations where I would probably agree with a Pro-Life activist that abortion was a wrong choice. But it is always a difficult choice, and I don’t see how inserting the courts and law enforcement and legislators into the middle of that decision-making improves things for anyone. It may sometimes be a wrong choice, but it’s a choice that I don’t want to take out of the hands of the people who are directly affected.

A practical libertarian might argue that the public accommodation laws that we have now grew out of a particular moment when they were needed–when overt racism in public services and segregation were not just being practiced by individual systems but was being supported by both strong social sanction and the legal system of many states. The laws were necessary to shatter the legal and structural support of segregation in that historical moment but times have changed and the social uproar and calls for boycotts of the bakers and photographers who have refused to service same-sex marriage ceremonies show that the free market is fully capable of sorting this issue out, and the uproar against someone who refused to serve an interracial couple in this way would be even greater. Thus those public accommodation laws are not needed now, and we should repeal them, not extend them to other groups.

I don’t agree with that argument, but it is a logically consistent argument.


July 24th, 2014

The argument that discrimination is simply a matter for the market to iron out is false because it’s based on the incorrect premise that one’s gender, sexuality, race or religious affiliation are neutral matters of opinion and we should respect the public discourse wherever it should lead.

The idea that public discourse is sufficently on our side that we can accept and maybe even counter the cases of discrimination that arise is belied by the cases we see now even where public accommodation laws are in place.

There is an active, well funded and quite shrill ongoing campaign to insist that LGBT people be viewed as either immoral agents engaged in a pernicious “lifestyle” or dangerous purveyors of a pathological mental state, or both. What’s worse is that it’s tethered to a blunt assertion of Abrahamic theology that endorses an imperative of discrimination (at best).

If we have public accomodation law covering race, gender and religious affiliation, then I can’t see the reason for excluding LGBT folk. If there was ever a reason for such laws in the first place, the idea that we can do without them now that circumstances are less extreme somewhat undermines the principle on which they were established. If discrimination was wrong when the agency of prejudice was stronger, it’s no less wrong when that prejudice is a waning force.

Ben in Oakland

July 25th, 2014

Notwithstanding what I said earlier, Neil…

Trying to find exceptions to clear anti-discrimination laws merely underlines why we have them in the first place.

Chris McCoy

July 25th, 2014

Libertarians are for legalized discrimination. They just don’t like to admit it because they know it makes them look bad, especially with regards to race.

That’s why you have the song and dance.

Change the right box to say “No one should be allowed to discriminate based on religion” and watch them do the song and dance even harder.

Change your ad infinitum argument to:

Ryan: No one should be forced to serve someone against their conscience!

Me: So businesses should be able to turn away Jews?


July 29th, 2014

I’m sorry I’m late to the party. Anyway, just thought I would point out two general trends: On the one hand are people providing logically consistent arguments (that they don’t necessarily agree with) about how one could both oppose discrimination while supporting its legalization. On the other hand are commenters showing how those first arguments are flawed. That, is the point, though. When we look at people like Anderson who probably actually believe racial and religious discrimination should be outlawed, while LGBT discrimination and the Hobby Lobby decision are OK, we see an effort to avoid seeing internal inconsistencies. Our token libertarian, whose flawed arguments many have beat up, is, at least hypothetically, willing to admit where his arguments are flawed, perhaps even while pointing out why anti-discrimination laws create their own set of problems. We shouldn’t be beating up the hypothetical libertarian for holding internally consistent views that we still disagree with. We should be working hard to open the eyes of the inconsistent; even if they still come down against us, others will be able to see and understand them for what they are.

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