“Apparently, this does have an economic limit. The loss of a gay wedding or two is okay but the loss of some traditional marriages on top of that is not.”

Monday, Ryan T. Anderson and Robert P. George provide a polemic at their favorite outlet, the far right Witherspoon Institute’s Public Discourse blog. Today’s title is familiar territory for the ultra-orthodox Catholic version of Batman and Robin: “Liberty and SOGI Laws: An Impossible and Unsustainable ‘Compromise’.

In other words, our dynamic duo doesn’t like laws protecting LGBT citizens from discrimination. Shocking I know. The subtitle reads:

Big Business and Big Law are using Big Government to impose their
cultural values on small businesses and ordinary Americans. Indiana does
not need to create new laws on sexual orientation or gender identity
for people who identify as sexual minorities to be treated justly. The
best way to protect all Hoosiers is for Indiana not to adopt a SOGI
policy at all.

Because it’s all BIG you know. How about the BIG Church? If you think that George adds legal gravitas to this polemic I will remind you of last October’s debacle. George and about 65 of his friends were trying to nullify the Supreme Court’s ruling in Obergefell v. Hodges. Nullification is both illegal and unconstitutional. George knows better. However,  George is an extremist Defender of the Faith and the Catholic Church disapproves of gay people and their marriages. George allows his religion to upend years of legal training. The nullification enterprise didn’t even garner much press coverage and has since died on the vine it seems.

Today’s effort is similar. Anderson and George are not interested in the civics of public policy. Their interest is ultra-conservative Christianity.  According to AnderGeorge:

Indiana’s proposed sexual orientation and gender identity (SOGI) laws, SB 100 and SB 344, would make bad policy. … All citizens should oppose unjust discrimination, but SOGI laws are not the way to do that.

At the receiving end of a sodium pentothal drip these guys would concede that discriminating against LGBT people is not unjust. Indeed they would probably admit their belief that gay and transgender people don’t even exist. Here’s a thought. If all citizens did oppose discrimination then these laws would not be required in the first place.

Behold the victims.

They create legal privileges for new protected classes based not on
objective, easily verifiable traits, but on subjective identities: SB
100 adds sexual orientation and gender identity, and SB 344 adds sexual
orientation. Where these types of laws have been passed, the government
has penalized bakers, florists, photographers, adoption agencies, and
schools because of their beliefs, faith-based or otherwise, about human

Utter nonsense. First of all, let’s remove adoption agencies and schools, Catholic institutions, from this claim unless they provide a citation or two. Almost a dozen years ago Catholic Charities voluntarily withdrew from the adoption business (and the accompanying receipt of public funds) in Massachusetts when the state embraced marriage equality. But I never thought of non-discrimination as a “legal privilege.”

The objective of these laws is not to sue people. Rather, it is to prevent discrimination in the first place. Our preference would be compliance.

It is always that same handful of narcissists. Those two or three bakers, a florist and a photographer were penalized when they refused service as public accommodations in defiance of perfectly valid anti-discrimination laws. Their beliefs are irrelevant. Those are theirs to hold without interference from the state. They might not want to serve an interracial marriage or a bar mitzvah but if they do withhold service they will face consequences. These laws inform citizens of their civic responsibilities. The overwhelming majority welcome the business. Yet, according to AnderGeorge:

Thus, SB 100 and SB 344 threaten the civil rights of Hoosiers who
believe basic truths about the human condition articulated by ancient
Greek and Roman philosophers, members of the Abrahamic faiths, and
secular people who believe in freedom of inquiry. Orthodox Jews,
Catholics, Eastern Orthodox and Evangelical Christians, Latter-Day
Saints, Muslims, and people of other faiths or none at all will be at

Notice how they get “basic truths” in there as if we are supposed to accept that as so. That is their truth based on the teachings of the Catholic Church. Most people in this country would disagree. People are free to believe whatever they want. They are not free to refuse service. That is the balance. Free Exercise means the right to believe and to worship as one chooses. It does not mean the right to break laws. As their friend, Justice Scalia opined in Employment Division v. Smith:

… The rule respondents favor would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind — ranging from compulsory military service to the payment of taxes to health and safety regulation such as manslaughter and child neglect laws, compulsory vaccination laws, drug laws, and traffic laws; to social welfare legislation such as minimum wage laws, child labor laws, animal cruelty laws, environmental protection laws, and laws providing for equality of opportunity for the races.

According to AnderGeorge:

  1. They Do Not Protect Fairness for All. “Fairness for all” suggests that all the various aspects of SB 100 and SB 344 are desirable. …
  2. They Do Not Establish a Compromise. The bills are not a compromise, at least not a good one. …
  3. They Are Not the Best for Indiana or America. Neither
    bill is the best that Hoosiers, or Americans in general, can hope for in
    the midst of a troubling political and cultural environment. SOGI laws
    are legal hammers that are purportedly justified by extensive,
    entrenched, and unjust discrimination that simply does not exist. …

Poor them. If the discrimination does not exist, as they claim, then they have nothing to fear. They no longer dare question why they cannot discriminate against Jews. That, too, was based on religious belief. In 1964, Southern opposition to the Civil Rights Act was voiced as “states’ rights.” Today, opposition to LGBT non-discrimination laws is called “religious liberty.” Both are bullshit. In both cases, people wanted, and want, the unfettered ability to discriminate against people they do not like. It is really just that simple.

After the Supreme Court’s decision in Roe v. Wade,
Americans responded by protecting the rights of pro-life citizens—both
religious and non-religious, both businesses and non-profits—to lead
their lives in accordance with their beliefs. Americans enacted
legislation at the local, state, and federal levels to protect the
rights of pro-life Americans not to be punished by government for living
out their beliefs.

The Church Amendments were enacted 40 years ago to protect the conscience rights of individuals and entities that object
to performing or assisting in an abortion or
sterilization procedure if doing so would be contrary to
religious beliefs or moral convictions. Similarly, the Weldon Amendment prohibits discrimination in federal funding because an entity does not offer abortions or referrals for abortions.

The same needs to happen in the aftermath of Obergefell for
Americans who believe that male and female are objective biological
categories and that marriage unites a man and a woman. Public policy
must ensure that government never penalizes people for expressing or
acting on their view that marriage is the union of husband and wife,
that sexual relations are properly reserved for such a union, or that
maleness and femaleness are indeed objective biological realities.

To suggest that the two are remotely similar is preposterous. Assisting an abortion is simply not comparable to baking a cake or selling flowers destined for a same-sex wedding. Refusing to bake the cake means that someone is told “we don’t serve your kind here.” Moreover, baking a cake is not a form of participation, at least no reasonable and sane person would think so.

This is all about a perceived right to approve or disapprove of the lawful conduct of others. In seeking to control who eats their damned cake or where their damned flowers are displayed they have the ability to withhold approval. How and when did we give them this power over the lives of other people? It is a commercial transaction. Goods or services are exchanged for money. They are free to post a sign on their door of what they disapprove of. They will not do so for the simple reason that those, other than the intended recipients of the discrimination, might take their business elsewhere. Apparently, this does have an economic limit. The loss of a gay wedding or two is okay but the loss of some traditional marriages on top of that is not. So much for principle.

But there is more to this. Those victims were created for the very purpose of opposing same-sex marriage. ADF and Liberty Counsel trolled for these cases for that very reason. National Organization for Marriage, Family Research Council and others asserted that same-sex marriage should not exist because some schmuck was required to bake a cake or sell flowers.  It was always a porous argument but it was the best they had. Now they are trotting out the same law-breakers to create or sustain another right that should not exist and the argument remains intellectually impoverished.

A reasonable expectation.

When it comes to discrimination it should be a basic premise of our civilized culture not to refuse service to people we disapprove of. Cloak it all in Religious Freedom® and it is still nothing more than the freedom to discriminate.

LGBT American citizens and taxpayers should be free of discrimination in public accommodations, housing and employment. Efforts to deny these basic dignities on behalf of the Catholic Church or any institution are reprehensible.

By David Cary Hart

Retired CEO. Formerly a W.E. Deming-trained quality-management consultant. Now just a cranky Jewish queer. Gay cis. He/Him/His.