by Monica Burke
Back in 2012, Charlie Craig and David Mullins entered Jack Phillips’ business, Masterpiece Cakeshop, and asked if Phillips would design a custom cake for their same-sex wedding ceremony. Phillips explained that he could not participate in their ceremony through unique artistic expression due to his Christian beliefs concerning sex and marriage. However, Phillips said he would be happy to provide any other ready-made item in his shop to the couple. The couple left the shop and filed a complaint with the Colorado Civil Rights Commission, which ruled against Phillips and ordered Phillips to make custom cakes for same-sex wedding ceremonies in the future. Meanwhile, Craig and Mullins easily obtained a rainbow-themed custom cake from another nearby artist.
Now, as the Supreme Court prepares to hear Phillips’ case in Masterpiece Cakeshop v. Colorado Civil Rights Commission, many are asking whether Phillips and those like him are bigots who should be held accountable under law for discrimination. Who would contest anti-discrimination statutes like those in Colorado that outlaw unfair discrimination based upon sexual orientation and gender identity? Do these people want to live in a world where LGBT individuals can be arbitrarily denied basic goods and services without any ramifications? And haven’t we seen this kind of bias before, say, in pre-civil rights America?
This portrayal of sexual orientation and gender identity (SOGI) anti-discrimination laws as the next frontier of the American civil rights movement is fundamentally flawed. The historical phenomenon of segregation in pre-1960s America were significantly different than the problems of the modern LGBT community. In order to craft effective policy that meets the real needs of LGBT individuals and respects the rights of all Americans, it is important to understand these historical differences and proceed accordingly.
Anti-discrimination statutes like the one under which Phillips was held liable by the Colorado Civil Rights Commission in the Masterpiece case seek to punish what is called “invidious discrimination.” Invidious discrimination occurs when an individual or group is treated unequally on the basis of an irrelevant factor. Jim Crow laws perfectly illustrate this kind of discrimination. Take, for example, the unscientific and unreasonable paranoia of Hilly Holbrook in Kathryn Stockett’s novel The Help regarding segregated bathrooms. “Separate but equal” entails unfair differential treatment on an irrelevant factor, race, when it comes to the most basic aspects of human life: personal facilities, transportation, employment, food, shelter, and so forth.
The underlying rationale for segregation and anti-miscegenation laws was the maintenance of socio-economic superiority and racial purity for whites. This rationale was written into the law, customs, and institutions in large areas and thereby caused grievous harm to large groups of people. Racism was institutionalized on such a dramatic scale by local governments that federal government intervention was warranted and indeed necessary to dismantle the structures that perpetuated inequality. Addressing segregation at the federal level was the only way to ensure that racist policies, from unfair zoning laws to discrepancies in public resources, were dismantled. This federal initiative ultimately freed historically segregated regions to undergo a process that no one, however well-intended, can coerce: a change of heart.
On the other hand, the LGBT community faces an entirely different set of historical conditions from the unique phenomena of segregation and the cultural norms that surrounded it. In lieu of legally enforced discrimination, the LGBT community often enjoys the benefits of political and economic life that were systematically denied to blacks. Major corporations hang rainbow flags for Pride Month instead of “straight only” signs. The government provides police security for pride parades instead of arresting participants for acts of civil disobedience. The LGBT community does not need to stage sit-ins or bus boycotts in order to gain access to basic public goods. The LGBT movement does not face the same degree of systematic oppression as the American civil rights movement did.
This does not deny the legitimate challenges faced by LGBT persons. Many LGBT individuals face isolation, misunderstanding, harassment, violence, and, yes, invidious discrimination in their own communities. However, political problems must be met with a proportionate response from the appropriate authority. A disproportionate or ill-conceived solution from the wrong source spells disaster. Effective solutions must originate at the proper level with clear goals and boundaries from an agent in a position to affect real change.
Instead of demonstrating sufficient need for government intervention, politicians and activists cater to the fear that LGBT persons may nevertheless experience arbitrary discrimination under the status quo. Take, for example, the rhetoric of Senator Jeff Merkley on sexual orientation and gender identity (SOGI) anti-discrimination laws: “People are going to realize that you can get married in the morning and be fired from your job or refused entry to a restaurant in the afternoon.” This language plays on our sense of justice but the Senator’s proposed solution, SOGI laws, are not the answer for two main reasons.
First, our present day communities tend to right these wrongs without government intervention. Say, for example, that a restaurant did refuse an LGBT person entry to a restaurant one afternoon. One negative Yelp review and a Twitter-storm later, that restaurant has either lost the majority of its clientele or issued a public apology.
In fact, this scenario actually happened: When a restaurant called Big Earl’s Bait and Tackle kicked out a gay couple and called them “fags,” people flooded Yelp with negative satirical reviews.While social media rage is no substitute for intelligent, civil discourse about these issues, this incident nevertheless demonstrates that invidious discrimination against LGBT persons is indeed taboo, unlike racism, which was often a social rite of passage until the Civil Rights Act. Therefore, public accountability and market incentives are beginning to address invidious discrimination against LGBT persons according to its more modest scale than sweeping anti-discrimination statutes.
Moreover, businesses and institutions are providing protections for LGBT persons of their own accord, demonstrating that government intervention is unnecessary. For example, 89 percent of Fortune 500 companies have already adopted their own internal LGBT anti-discrimination policies. Hence, civil society and the economy are providing solutions without the red tape of a one-size-fits-all government-issued policy.
The proposed alternative to these naturally-occurring solutions are SOGI anti-discrimination laws, which brings us to the second reason why SOGI laws are not effective policy. As I have established previously for The National Pulse, these laws fail to effectively combat the problem — invidious discrimination — they claim to target. They are supposed to penalize individuals or institutions that discriminate unfairly based upon an irrelevant factor regarding who a person is. In the end, they empower the government to penalize people for what the government determines to be the wrong beliefs about human sexuality.
Comparing SOGI anti-discrimination laws to government intervention in the civil rights era is misleading. Government involvement in the 1960s sought to dismantle institutionalized racism which was eminently harmful to huge amounts of people. There is no comparable structure against LGBT persons today, and society is rising to meet the real needs of the LGBT community independent of the government. Meanwhile, SOGI laws are bad policy, which extend beyond punishing invidious discrimination to target those who profess traditional sexual ethics.
In order to prevent cases of invidious discrimination against the LGBT community, we must adopt an approach that is proportionate to the problem. SOGI laws create more problems than they solve as the broad nature of these policies empower the government to penalize individuals for their traditional beliefs about sex and marriage, even when they do not discriminate against LGBT persons on the basis of who they are. These laws enable the government to discriminate against certain opinions and creeds: a dangerous precedent which could be used to oppress any number of groups in the future. Therefore, until a more effective policy solution to invidious discrimination against LGBT persons is available, we must oppose SOGI anti-discrimination statutes.