The Real Reason Arizona’s Anti-Gay Discrimination Bill Was So Bad

NogaysallowedImagine if you walked into a store holding your same-sex partner’s hand and was told, politely, that you would have to leave. “This establishment declines to serve homosexuals.” You’re shocked, but the smiling discriminating proprietor adds, “But don’t worry. There’s a shop that serves you down the street.”

Several things have happened here.

First, you are being singled out because of your (perceived) sexual orientation. Our society does not countenance discrimination on the basis of who we are, whether its the state doing it (the Equal Protection Clause has a few things to say on that) or private citizens who open their businesses up to the public (public accommodations laws apply here). In either case, the principle is offensive to modern notions of equality. A world that allows some businesses to discrimination on the basis of identity expresses to its citizens the value that discrimination is ok. If discriminating against a particular group is ok, then hating that group is also ok. They — read: us — become an “other”, an “out-group”, something unfamiliar and different and, therefore, unwholesome. “Othering” someone is bad enough; institutionally blessed discrimination allows mental othering to be manifested in physical form. For a particularly heinous example, look no further than Vladimir Putin’s Russia.

Second, you are the object of stares, the center of attention, and, likely, the victim of snickers and taunts. Those who have taken to heart the cues of discrimination will single you out for harassment and hate. Even if they just stare, your sense of self is eroded by their inappropriate, rude, and condescending behavior, all of which has been condoned and invited by a pro-discrimination law.

And, third, the alternative shop may exist, but it is as if it exists to emphasize your otherness. The shop down the street is an alternative only because you were forced, by individuals taking advantage of a state law, to look for alternatives.

Libertarians and conservatives looking to sound less hateful talk a lot about choice and freedom. But their version of choice and freedom is empty and naturally favors the status quo. Of course we have the choice to go to another photographer. We also have the income to try to use market forces to punish a discriminating business owner. That way, the theory goes, the market will eradicate discrimination. But equality based on the ability to choose grants a life line to discrimination. It feeds it the unending stream of hate that will always exist on the right wing of any society and has the expressive effect of condoning more and more discrimination.

Equality is more than choice. It is treating every person with the full dignity they deserve. The Arizona law would not have done that. Mr. Will and the law’s other apologists don’t seem to care.

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Follow me on Twitter: @ariezrawaldman

Ari Ezra Waldman is a professor of law and the Director of the Institute for Information Law and Policy at New York Law School and is concurrently getting his PhD at Columbia University in New York City. He is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. Ari writes weekly posts on law and various LGBT issues.

Comments

  1. Jack M says

    George Will has always been the bland, self-congratultory talking head of TV Conservatism. His comments come from the Good Old White Boy perspective, and his pseudo-intellectual comments should be ignored.

  2. Miche Rutledge says

    As I keep pointing out, the idea that there are other choices is literally an urban myth when you live in largely rural states. There may not be other choices for a hundred miles and those establishments may also choose to discriminate, eliminating one from the market entirely. The theory also presumes everyone has transportation to travel that distance or somehow find some friendly port in the homophobic storm.

    The fact is that discrimination is less likely to happen in a large urban area where there are other choices. It is going to happen in small towns and rural areas where people are less open to different people, as a rule. That is why public accommodations laws cannot be given an exception to discriminate.

  3. UFFDA says

    “…the unending stream of hate that will always exist on the right wing of any society…” – as with most things you got that right Mr. Waldman. I accept it and move on with a backward look of appreciation for your having placed such a well shod foot into the unctuous mouth of Mr. Will, and then pressed your point right down his righteous pie hole. Thank you.

  4. GregV says

    “There are lots of other lunch counters that would welcome me in the black ghetto of town, but I can’t be bothered to get the exercise of walking 12 blocks from my workplace, so I want the heavy hand of government to force Woolworth’s to make my tomato and cheese sandwich.”

    These days, they never seem to use this kind of well-established example of “the right to not serve people based on my religious beliefs.” Though the principal is EXACTLY the same, they know that their base, the Evangelicals and Southern Baptists and Mormons which were firmly behind THAT brand of discrimination, has lost their stomach for it but still embraces the same kind of discrimination against gays.

  5. Rob says

    Do you realize that you are arguing AGAINST freedom, rather than for it? By your logic, the gay hair stylist that refuses to continue serving the NM governor is wrong and should be forced to provide his services regardless of her stance.

    I’m NOT saying that it is a good or moral thing to discriminate against gays, or blacks, or anyone else for that matter, but freedom includes the right to be a jerk, as long as you are not harming another. Freedom of association means that each person has the right to choose who he or she interacts with, and you do not somehow miraculously lose that right because you own a business.

    No one has a natural right to force others to interact with him. Should a gay printer be forced to do business with the Westboro Baptist Cult, for example, or should he have the right to refuse to do business with them? Freedom works both ways.

  6. Gibblet says

    Don’t forget that businesses make contracts with the state for a host of incentives (tax related etc.), and as such have to comply with the State’s standards with regard to non-discrimination policies. This is what every right-winger has failed to outline. We’re not in the 19th century anymore where you could just open shop.

  7. Gibblet says

    Rob, you’re a fool. The hairstylist was likely not a business owner. Completely different thing.

    Also your analogy is off. Your gay printer wouldn’t be turning away all chirstians, just foul mouthed bigoted ones. HOWEVER, under this evil law (you so want) any religious person could deny ALL gay people regardless if that gay person was religious too.

    Think before you mouthbreath Rob, K?

  8. Turing's Ghost says

    Ari, the Jim Crow analogy is certainly on point. Looks like Mr. Will is saying that “separate but equal” is a perfectly good state of affairs. Unfortunately,we know what sounds right in theory doesn’t work in the real world. I’ve heard the “sore loser” comments before — its not the words of Mr. Will and he should have provided attribution. We have gone from perverts who don’t deserve rights to people asking for “special rights” to “sore losers”. I’ll take it.

  9. Mitch says

    I am the biggest eye roller when I see Ari’s name. I read what he writes and then eye roll about he subjects me to his point/counterpoint opinion about the nature of things. As if it were gospel.

    This was brilliant. Thanks, Ari. I did not roll my eyes.

    The phrase: True equality is also about equal dignity, about not being treated like a second-class citizens simply because of who you are.

  10. AG says

    Rob,

    You’re on a hard left site. The concept of freedom is alien to leftists. They want to control the behavior of everyone and would never leave people alone. Their cognitive abilities are inadequate to see the world from other people’s perspective.

  11. Gibblet says

    AG aka Rob

    If you want to discriminate against people don’t open up a business which has to operate under government standards. What on Earth do you not get about that???

  12. says

    @Rob, you can make the argument that all non-discrimination laws are bogus (at least that’s consistent) and therefore any business should be able to turn away any customer for any reason (basically saying that whites-only lunch counters were acceptable) but … even if you believe that, the Arizona law did not give everyone an equal opportunity to be a jerk, as you put it. It, and others laws like it, carve out a special right to discriminate that is only granted to the religious. If you’re taking about freedom, how is carving out exemptions for one group above all others liberty for all?

    If I were a business owner, I would full expect (and in my state would be legally obligated) to serve people whose values I don’t share. That’s part of what it means to open your doors to serve the public. And, if you really don’t want to serve someone, you have a free speech right to discourage their business. How many customers would want to do business with someone who openly disdains them? That’s different than being given a special right to exclude.

  13. says

    @AG, there’s nothing “hard left” about thinking that the religious should not have a privilege to discriminate that no one else has. The Arizona law was opposed by the far-from-left likes of major corporations and John McCain.

  14. anon says

    If the law doesn’t force businesses to advertise who it is they will and will not serve, just how are customers supposed to take George Will’s advice to just select a photographer that wants your work?

    Are you expected to just travel from business to business until you happen across one who doesn’t toss you out based on their “firmly held religious beliefs”?

    If the businesses want that “right”, then they should be forced to post signs just like the old “Whites Only” signs that were posted in the days of Jim Crow.

  15. AG says

    “The gay printer in Arizona could not legally turn down the Westboro fools if their signs expressed their religious views.”

    And you don’t think it’s outrageous? Of course, it is. Perhaps that will make you realize that non-discrimination laws are not an unalloyed good.

  16. Archie says

    I think the point that’s being missed in this discussion is that Arizona doesn’t have a state-wide law prohibiting discrimination based on sexual orientation. Except for a few large cities with non-discrimination ordinances, there’s currently no penalty for discriminating against gay people. So there’s no need for an exemption for individuals who don’t want to serve gay people because of their religious beliefs.

    This is part of a broader effort to expand religious exemptions to individuals and businesses that in the past have only applied to religious institutions. Hobby Lobby’s challenge to healthcare laws requiring them to provide insurance that covers birth control or pharmacists refusing to dispense medications that they don’t approve of are other examples. When you run a business, you have to comply with the law. We can’t allow businesses to use the religious beliefs of their owners to avoid complying with laws that their competitors have to.

  17. Gibblet says

    @AG

    You don’t get it. The laws talked about only protect religious people. No one else. Non-discrimination laws ARE great. They are unalloyed good and it seems that people like you only make it an issue when we’re talking about religious people not being able to legally discriminate.

  18. says

    Freedom unfettered is not civilization. The constitution itself is our consent to give up certain aspects of unfettered freedom in order to form a civil society based upon laws. The very heart of that constitution is the tenet of equality and the guarantee of equal protection under law. ‘All men are created equal.’

    The Arizona law and others like it are the very antithesis of this tenet. They are based on the premise that anyone can operate outside these guarantees by claiming religious liberty as a valid excuse to discriminate. The underlying principle is that whatever religion teaches is sacrosanct and is a shield against the laws that make us an enlightened civilization and allow us to progress. We need look no further than their ‘creationism as science’ attempts to see the very real danger that fosters.

    Historically a claim of religion has been the proffered excuse to discriminate against every non-white non-Christian non-male group in America. LGBT are it’s latest iteration.

    Courts have ruled that women must be treated equally in society. They have ruled the same for all other group distinctions subjected to societal discrimination; racial, ethnic, religious, disability, and national origin. Courts have not hesitated to say those who claim religion gives them the right to do so ‘this you can not do’. Is protecting the equality of it’s LGBT citizens somehow less important, less valid?

  19. john patrick says

    I have long considered George Will to be a stuffy man stuck in old prejudices clothed in expensive suits and ties. He talks like a professor in fine words, but his ideas are not so fine. He’s not as blatant as Pat Buchanan, but his ideas are as discriminatory.

  20. AG says

    @Gibblet

    Let me make myself clear:

    First, this Arizona bill was very bad because it protected only religious people and because it imposed unnecessary restrictions on business owners–their employees could refuse to perform their functions citing religious objections.

    Second, if I were a business owner I would not want to hire someone who converted to Islam because it’s a totalitarian ideology spreading hatred toward people like me.

    Third, if I were a musician I wouldn’t want to be required to perform Hava Nagila at the meeting of a local neo-Nazi group.

    Fourth, if I were a printer I wouldn’t want to be required to print posters for the Westboro baptist church.

    Those are the reasons why non-discrimination laws are not the best thing since sliced bread.

  21. Gibblet says

    @AG

    You’re listing extreme examples. You’re basically equating the discrimination of all gay people with the a business choosing to not perform a service to specific hate groups. Gay people are hate groups now?

  22. anon says

    Ari’s positing rights that don’t exist to support his claims. You don’t have a right to “not be offended”. This is what’s called a “heckler’s veto” as applied to civil rights cases and the Supreme Court and state courts have shot this down numerous times. The classic case was the black women making a civil rights case because she didn’t like the haircut she got. This was rightly referred back to contract law, not civil rights. Secondly, dignity is how you conduct yourself. You are dignified or not. Comity is how you treat others. You can be tossed out of a store for being slovenly, but the staff should more or less still treat you with comity. However, the law does not require comity. So again, there is no case law here to support the basic contentions.

    The case of the bakery is particularly noteworthy. For example, it could not apply to a bakery that only has certain models of cake. You can’t demand they make something they don’t make. This would not pass the hardship rule. For the photographer, the smart bigot would simply say “I’m booked”, and you’d be none the wiser. At this point the value of avoiding costly litigation has it’s appeal. The AZ law wasn’t going to help religious zealots either because outside the pandering, there were no additional protections granted.

  23. Carrie says

    Anon,

    But if the photographer was very open to booking a date for services only until they found out the sexual orientation of their customer? Saying “I’m booked” doesn’t work after that.
    Also, I’m unaware that SSM wedding cakes differ dramatically from OSM cakes, except for maybe the figurines atop them.

  24. Topol says

    The “choice” falsehood is a variation of the “If you don’t like it here, move elsewhere” falsehood.

    The Constitution, and especially the Bill of Rights, protects the rights of individuals as opposed to the majority.

    George Will is an idiot and dangerous. Turn his “choice” around: individuals should have the right to choose where they shop. Businesses cannot decide that for us.

  25. JJ says

    @Rob: “Freedom of association means that each person has the right to choose who he or she interacts with, and you do not somehow miraculously lose that right because you own a business.”

    Yes and no. It isn’t just the First Amendment rights of business owners at stake. The state must strike an equitable balance their rights and the rights of others that might come into conflict. To that end, the state reserves the right to regulate commerce. The rights of a business are not absolute. They are determined by what rights the state extends to it and what rights it withholds. If the state wants to ensure that everyone has equal access to the market, it can impose rules on businesses to achieve that goal. Even if those rules might burden an individual’s First Amendment rights, the state is justified to weigh those rights against the right of others to participate in society on an equal basis. States and courts have decided that in the commercial sphere, First Amendment rights end where they encroach on the rights of others to participate in society equally.

    The balance struck is that business owners who find it unacceptable to serve everyone equally can withdraw from the marketplace, rather than forcing others to withdraw, even if only from one little corner.

  26. JJ says

    @Anon: “You can’t demand they make something they don’t make.”

    Straw man. No one is demanding that bakers, photographers, etc., provide a good or service that isn’t already on their menu.

  27. HankNYC says

    Rosa Parks could sit at the back of the bus, there were other counters to eat lunch at besides Woolworth and I’m sure that separate water fountain was ok – NOT! So it really wasn’t about choice then – how can it be about multiple choice if you’re not allowed to actually choose option A.

    No one needs to go thru the humiliation of being told “we don’t server your kind here”.

    You are making a cake – so make a cake. If you want to claim to have deeply held religious beliefs (gonna be fun to try and prove that) – then show me the questionnaire where you ask if this is the 1st marriage for the bride and groom, are they living together and having sex before marriage? etc..

  28. Bill says

    George Will’s comment in toto were not quite so bad as he also said, regarding a baker who did not want to bake a cake for a gay couple’s wedding reception, that the baker “should just bake the cake.” There were no ifs, ands or buts.

    He seemed to be distinguishing cases in which someone would have to participate in some ceremony, if only to the extent of being present at it, from the case where what you do and where you are is no different than it would be when providing the service for anyone else.

    One doesn’t have to agree with George Will, but one should represent what his position is accurately.

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