Employment Non-Discrimination Act: Religious Hate Towards Gays is Still Hate

The line between civil rights and the private "right to association" is a contentious one, especially when we're talking about LGBT folks. The Supreme Court — in its unique, on-the-one-hand-but-on-the-other, Solomonic wisdom — has split the difference in its definition of that line. 

On one hand, it has upheld the right of Congress to prohibit private businesses from discriminating in providing "public accommodation" (Heart of Atlanta Motel v. U.S.). On the other hand, it has upheld the right of private organizations to discriminate against certain people, provided that the "forced inclusion of an unwanted person … infringes the group's freedom of expressive association" (Boy Scouts of America v. Dale). The metric to distinguish between the two is whether the "group" involved in the discrimination "engage[s] in some form of expression, whether it be public or private."

You wonder why the world hates lawyers? Reason one: They babble gray-shaded nonsense. And then there's state and federal legislators, whom we hate for enacting gray-shaded nonsense.

The Civil Rights Act of 1964 covers "discrimination based on race, color, religion, sex and national origin." Notice what it doesn't mention. And the only other federal legislation that would address discrimination against LGBT Americans is the proposed Employment Non-Discrimination Act, which has come up in every Congress except one since 1994, without success, and which would only cover job discrimination. 

At the state level, only 16 states prohibit private discrimination against gay, lesbian, bisexual, and transgender people. Wisconsin, New York, Maryland, Delaware, and New Hampshire have protections against discrimination on the basis of sexual orientation, but do not protect against discrimination on the basis of gender identity.

In the rest of the country, there's pretty much a patchwork quilt of nothing. 

So on the one hand, gray-shaded nonsense; on the other, nothing. The wonders of federalism in action. Wouldn't Rand Paul be pleased?

And wherever there's gray-shaded nonsense or total nothingness on this point, there are situations like this and this. Want flowers for your wedding? The florist hates the sin but loves the sinner. So no Birds of Paradise for you. Mention your long-time partner in your mother's obituary? The Catholic high school you work for thinks that makes you unfit to teach. So no job for you.

The difference? The florist incident happened in Washington, where there are laws against discrimination on the basis of sexual orientation. It involves a business rather than an organization engaged in "expressive association."

The Catholic school firing incident happened in Ohio, where there are no laws against discrimination on the basis of sexual orientation. It involves the Catholic Church, an "organization" that falls under the "expressive association" header. 

The Washington florist is likely to lose her fight to keep out the gay. The Ohio Catholics can, under the current system, keep this coming until the Messiah comes (for either the first or second time — who knows?).  

But what if the florist says she has a religious, "expressive message?" What if her lawyer puts forward the argument that she's actually in the marriage sanctification business (flowers being a sign of God's favor)? Who's to say that she can't resort to the opt-out clause?

The ultimate problem is the near-universal acceptance of the ridiculous notion that religious individuals have a unique right, based solely on their religious faith, to discriminate against other individuals. Moreso, many people accept that with that right, they can withhold service from others however they see fit. 

Few people accept the right of an atheist homophobic businessman to refuse service to someone on the basis of non-religiously-based hate. Unfortunately, many people agree that from marriage to healthcare, faith-based organizations have a divine mandate to discriminate because of Leviticus.

And where people challenge the distinction, the right wing erupts in the usual victim-talk: martyrdom, Daniel in the Lion's Den, Christ on the cross, and Nazis, Nazis, Nazis. Because the "hate the sin, love the sinner" lady in the flower shop is Daniel, St. Catherine of Alexandria, and Sophie Scholl, and the American left is the Persian Empire, the Roman Empire, and Hitlerian Germany, rolled into one.

But religious faith does not carry with it the right to discriminate, and neither do private property rights. Just as we've determined that individuals and businesses cannot discriminate from providing services and "accommodations" on the basis of "race, color, religion, sex, and national origin," we should prohibit it on the basis of sexual orientation and gender expression.

And that should be universal, whether we're talking small-town flower shops or the Catholic Church.