James Gottry

James Gottry, a lawyer with Alliance Defending Freedom, has taken to the extremist blog of Witherspoon Institute to explain why we should not have LGBT nondiscrimination laws. His polemic is titled: “SOGI Laws: A Subversive Response to a Nonexistent Problem.”

I concur that in Alabama or Mississippi, for example, an LGBT nondiscrimination law would be subversive. Indeed, the Civil Rights Act of 1964 was subversive (disruptive to an established system or institution). Yet to claim that LGBT discrimination is a nonexistent problem suggest that LGBT citizens are worthy of discrimination. His essay will confirm that analysis. Gottry’s subtitle:

Now is not the time for proponents of religious freedom to partner with
proponents of sexual orientation and gender identity legislation in
hopes of catching a few crumbs of liberty that fall from the table.

“Poor us.” Gottry begins:

The “price of citizenship” in a free society can never include our
freedom of conscience. If we surrender that, then we have surrendered
free society itself.

Oh here we go to familiar territory. People who don’t want to sell flowers that are to be displayed at a same-sex wedding are not homophobic bigots. Oh no. They are conscientious objectors” and in a free society they require the right to discriminate. As a Jew I have seen this movie before. After all, anti-Semitism is based on sincerely held religious belief. As Gottry continues through this lengthy essay it becomes abundantly clear that nondiscrimination presents a problem; one that he claims does not exist. Hereafter, I will quote selected portions:

Throughout history, every person under every regime has had—in the most elemental sense—the freedom to form a unique set of beliefs and values. …

This freedom—codified by the First Amendment—is a pre-political right that rests in our dignity as human beings. But the cultural movement for “tolerance” and “inclusion” has reduced freedom of conscience to a lesser-than right, a token that exists subject to the decisions of judges and lawmakers.

Let’s cut through this crap and much to come. LGBT citizens also have “rights that rest in our dignity as human beings.” The First Amendment provides for Free Exercise of religion. Nondiscrimination laws have been held as valid, even if in conflict with religious beliefs, for more than 50 years. Free exercise is no more important than other constitutional rights that citizens have.

In recent years, laws that provide special privileges to individuals based on their self-proclaimed gender identity or sexual preferences have emerged across the country. Commonly known as SOGI (Sexual Orientation and Gender Identity) laws, these legislative undertakings are typically fueled by activist groups and represent a subversive response to a nonexistent problem.

This guy marinated in bullshit for a few hours before writing this nonsense. I suppose that Jews and blacks have “special privileges” too. It is especially odd because Gottry is seeking Christian privilege. With better arguments this might even rise to the level of cognitive dissonance but what Gottry posits is the same nonsense that we have heard from various hate groups. It starts with redefining our sexuality. Gender identity is not self-proclaimed. Rather it is self-evidenced and validated by clinicians experienced in treating gender dysphoria. Sexual orientation is not a “preference.” It defines our dominant romantic attraction to men, women, both or neither. Science tells us that sexual orientation is innate. Conservative Christianity is not innate. It is a choice. Willful ignorance is also a choice.

Contrary to Gottry’s presumption, nondiscrimination laws are fueled by people who have been discriminated against. Were there no discrimination then the problem would, in fact, be nonexistent. A good start is to acknowledge scientific fact rather than trying to get the world to conform to ancient chronicles. Until then, the elected representatives of the people in some locales have determined that nondiscrimination laws are necessary. Eventually sexual orientation and sexual identity will become part of the aforementioned Civil Rights Act of 1964. Gottry will just have to deal with that fact.

Available data confirm there exists no significant social pattern or practice of unjust discrimination against these groups. This is not only because the vast majority of Americans already respect each other and are fair-minded, but also because anyone engaged in baseless discrimination faces the prospect of social and financial consequences brought on by public pressure and boycotts.

Remarkably, “available data” links to the opinion of none other than Ryan T. Anderson, Defender of the Faith© at Heritage Foundation. Laws like North Carolina’s HB2 seem to defy the opprobrium that Gottry offers as inoculation against potential bigotry. In point of fact, LGBT citizens are routinely discriminated against in employment, housing and public accommodations. We’ve got a couple of bakers, a florist, a photographer and a couple of venues who have discriminated against gay citizens even where prohibited by law due to their unsupported notions of Christian supremacy.

SOGI laws, however, use the full force of the law to punish individuals who seek to live peacefully and to work in a way that is consistent with their consciences. Elaine Huguenin, Barronelle Stutzman, Jack Phillips, and Blaine Adamson are just a few of the small business owners who gladly serve all people without exception, but who also face legal punishment because they declined to participate in certain events or to create custom art that would have violated their consciences.

Oh, so there is the photographer, the florist and the baker that we have been discussing ad nauseum for nearly a decade. The photographer goes back to 2004 and went all the way to the Supreme Court. Blaine Adamson is the T-shirt printer and he got a free pass in Kentucky. As for the rest of these bigots, only a religious extremist would conclude that selling flowers, for example, is “participation” in a same-sex marriage. This is refusing service to people they disapprove of cloaked in scripture as a means of demonstrating their disapproval. As counsel to these poor oppressed business owners, ADF knows perfectly well that there are no religious exemptions to otherwise valid laws. I didn’t make that up. Scalia said that in Employment Division v. Smith.

Suppose a business owner had a religious objection to the wedding of a Jewish man marrying a Christian? After all he just wants to live peacefully and to work in a way that is consistent with his conscience. And, by the way, he serves Jews every day. It doesn’t happen because we have laws that prevent it from happening and because we do not have activist groups like ADF protecting the rights of people to be bigots. Would anyone, with a straight face, really claim that making a wedding cake for Abe and Mary is participating in the inter-religious wedding?

In Iowa and Massachusetts, not only religious citizens but even houses of worship are under attack. Churches currently face government-imposed mandates requiring them to open their restrooms to individuals based on their subjectively determined sex rather than biological reality.

This idiot needs to stop trying to redefine the realities of gender identity. In Iowa that is not true. In Massachusetts it applies to an event at a church that is open to the public. In that case the church becomes a public accommodation. Just how many transgender citizens are likely to attend such an event? There just aren’t that many of them. Everyone in Gottry’s world is a persecuted victim.

With these facts in mind, it is no surprise that in 2016 alone, legislatures in Arizona, Florida, Idaho, Indiana, Kansas, Nebraska, and nine other states rejected such freedom-crushing legislation. In fact, aside from the Utah SOGI enacted in 2015, it’s been five years since a new statewide SOGI law has taken effect.

They are not freedom crushing. Please. They are rejected in some states because we sit out off-year elections allowing Republicans to take control of our state houses. Florida is a trifecta; both legislative chambers and the governor. They are rejected because religious extremists like ADF fiercely lobby Republican legislators. By the way, ADF failed to get their “Pator Protection Act” passed in Florida and other states. The seemingly harmless piece of legislation was a Trojan Horse for a toxic RFRA that would have preempted municipal nondiscrimination laws that we have in most of urban Florida. Gottry mentions Arizona. Phoenix has comprehensive nondiscrimination laws, So, for example, does Kansas City as well as six other cities in Kansas. The same is true for most of urban Indiana. You can add Omaha, NB to that list as well as 13 municipalities in Idaho. It allows employers to attract the best talent.

But instead, some conservatives suggest that SOGIs are inevitable and may even be necessary to achieving any protections for religious freedom, given cultural trends. They propose a strategy of “compromise” …

This logic is flawed on several levels. First, in the past two years, more than seventy separate SOGI bills have failed because legislators are increasingly recognizing the real damage these laws pose to the privacy, dignity, and religious liberty of citizens.


Second, not only do SOGI laws invite all of the harms described earlier in this article, but such proposals lack meaningful protections for religious freedom, much less protections that could even remotely be described as “vigorous.”

He is just repeating the same nonsense based on the false notion that Christians require the freedom to discriminate in employment, housing and public accommodations. Where does this sense of privilege come from I wonder?

LGBT activists are no more satisfied by these proposals than are defenders of real diversity, freedom, and conscience. When Indiana introduced legislation this year similar to the Utah SOGI, Lambda Legal’s law and policy project director, Jennifer Pizer, described the bill as “a wolf in sheep’s clothing,” and argued that it “aims to guarantee the right … to discriminate” and provides “lesser protections for LGBT people.” The Human Rights Campaign called the Indiana legislation “deeply flawed” and “dangerous.”

Jennifer Pizer’s comments were in 2015 so it cannot be legislation that was introduced this year.  The simple fact is that ADF boilerplate that circulated around state houses, including here in Florida, had a couple of issues. Among these were the preemption of local ordinances (very cleverly obfuscated) and defining a person as just about any entity. We are very wary of so-called Pastor Protection and Religious Freedom Restoration acts. ADF is directly responsible for our concerns.

It’s not just gay activists. Business hates these things. Various chambers of commerce have worked very hard to insure that their locales are welcoming places in order to attract the best talent. Many heterosexual couples are reluctant to live in places that discriminate against gay and transgender citizens.

It is naïve to argue that such laws would placate LGBT advocates any
more than domestic partnerships or civil unions satisfied advocates of
same-sex marriage. …

I know. We are just so uncooperative with efforts to make us second-class citizens. We should be so sorry. Should I send this guy a Hallmark?

To paraphrase Ryan Anderson’s analysis of Roe v. Wade, Obergefell
created the right to a same-sex wedding, but also the right not to
perform a same-sex wedding or participate in a same-sex wedding. Obergefell does not eliminate our nation’s history of recognizing and protecting freedom of religion and freedom of conscience. 

I left the link to Anderson’s opus intact. Obergefell determined that gay couples have a constitutional right to marry. Anything else on Anderson’s part is just conjecture or projection. Anderson’s piece is really an analysis of Obergefell. It mentions Roe as a convoluted reference point that is also inaccurate.

In the current cultural standoff, proponents of religious freedom and
freedom of conscience simultaneously confront opportunities for victory
and defeat. We can either choose to enter the arena and strive valiantly
for victory, or we can join “those cold and timid souls who know neither victory nor defeat,” choosing to negotiate the terms of our own surrender.

That quote is from TR and it is misused. This guy just keeps repeating himself by rewording what amounts to Christian privilege and Christian supremacy. Ultimately he is just going to have to deal with the fact that LGBT citizens are deserving of the same protections as Christians, Jews, Muslims and Mormons. Perhaps even more so.

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.