Nathaniel Blake
Federalist contributor Nathanael Blake

The latest pseudo-journalist to demonstrate his minimal wit at The Federalist is Missourian Nathaniel Blake. Mr. Blake is determined to air his religious opprobrium for gay people. It is hackneyed, recycled bombast to be eagerly consumed by the Federalist’s constituency. His diatribe constitutes an owner’s manual of sorts for Christian privilege and Christian supremacy.

Blake does not get off to a very good start. His essay is titled: “5 Big Fat Myths About LGBT Discrimination Laws.” He means nondiscrimination laws. Discrimination laws are things like North Carolina’s HB2 or Alabama’s legislative spew on behalf of Christianity.

Speaking of myths:

Remember how LGBT activists promised that same-sex marriage would harm no one and infringe on no one’s freedoms? They lied.

Yes, we lied because we failed to ensure that every nondiscrimination law in the country would be nullified after our victory in Obergefell v. Hodges. Does this guy have any idea just how many people have made the same inane claim? It is a close cousin to the notion that we are intolerant because we are not tolerant of intolerance. What we maintained, incidentally, was that same-sex marriage had no effect on so-called traditional marriage. It does not. It never has and it never will.

Continuing this unoriginal theme:

Christians and other nonconformists now face financial ruin and even imprisonment if they decline to participate in promoting and celebrating same-sex wedding ceremonies. Consider baker Jack Phillips and florist Barronelle Stutzman, who faithfully serve LGBT customers in the ordinary course of business, balking only at custom work that conflicts with their deeply held religious convictions. For this, the LGBT left seeks to destroy their businesses.

The sun doth rise and set on Christians. Selling someone a cake or flowers means that they are “promoting and celebrating” something that they disapprove of. Is that not perfectly obvious? “We serve Negroes all the time but when one of them walked in with his white wife, well … that was the last straw. It offends our religious beliefs.” Or try this: “I serve Jews all the time. That doesn’t mean that I have to bake a cake celebrating a kid’s bar mitzvah. That is the rejection of our Lord Jesus Christ. He will burn in Hell for the offense so don’t expect me to participate.”

Moreover, no one seeks to destroy anyone’s business. We would prefer that people simply not discriminate. Our money is as good as anyone else’s. Please take our money. You can use it to buy things.

Blake should read the Kloran (essentially the Klan handbook). It uses Christianity to justify discrimination in the same way that he does. They are pretty good at waving the flag while thumping a bible:

The Ku Klux Kreed

Mr. Blake’s rant goes on:

The general line is something like this: you can believe whatever you want, but if you go into business you have to serve everyone equally in all circumstances.

Let’s tee one up — shall we? The simple fact is that people are obliged to obey applicable laws. These measures are crafted by the elected representatives of the citizens and are signed into law by an executive elected by the people. Some have religious exemptions; most do not. At the risk of being repetitive, Reynolds v. United States (1879) established that the state can regulate conduct which is not the same thing as the impermissible regulation of belief. Employment Division v. Smith (1990) clearly established that there are no religious exemptions to otherwise valid laws.

In Florida, for example, there is no nondiscrimination law protecting LGBT people. However, where I live, the City of Miami Beach and Miami-Dade County both have applicable nondiscrimination laws which are valid within those political subdivisions.

Myth 1: Anti-Discrimination Laws Apply to All Employers

Reality: While anti-discrimination laws vary, none covers every business and employer. In Phillips’ case, the relevant regulations are Colorado’s rules for public accommodations such as hotels or restaurants. But not every business, or every service offered by a business, is a public accommodation.

Additionally, it is common, although not universal, for anti-discrimination laws to exempt small businesses. Other exceptions include expressive businesses, which are necessarily exempt on free speech grounds—for example, newspapers can’t be forced to publish material they object to.

A “myth” is generally defined as a common misunderstanding. Honestly, we understand that nondiscrimination laws and ordinances vary by locale. While it is true that not every business is a public accommodation Masterpiece Cakeshop is. Most businesses that are open to the public are considered public accommodations. Small businesses are sometimes exempt from employment nondiscrimination laws. They are never exempt from nondiscrimination laws affecting public accommodations. Commercial speech is often subject to government regulation. Freedom of the press is a separate issue. There is no myth as stated and the explanation is inaccurate and nonsensical.

Myth 2: Anti-Discrimination Laws Protect All Customers from Discrimination

Reality: Only certain classes of people are protected from discrimination, and only then in certain circumstances. Otherwise, it’s legal to turn down business, whether for complex reasons or a simple “I don’t like you.” Some artisans even become infamous for their pickiness in clients (think of haute couturiers).

Again, that myth or common misunderstanding does not exist. Nondiscrimination laws define protected classes and under what circumstances they are protected. In many locales an haute couturier is not free to decline business based on the characteristics of a protected class so the example is highly flawed. In Colorado, the state has determined that the baker violated the law. Essentially a public accommodation (a bakery) is required to provide gay couples with anything that the establishment might provide to opposite-sex couples. The Supreme Court has been asked to overturn the judicial determinations of the state.

Myth 3: Limiting Anti-Discrimination Laws Will Bring Back Jim Crow

Reality: Although supporters of expansive anti-discrimination laws regularly bring up the Jim Crow regime that federal anti-discrimination law was a response to, the comparison actually weakens their case.

First, even if every anti-discrimination law in the nation vanished overnight, we would not return to Jim Crow. Legally, Jim Crow laws didn’t just allow racial discrimination, they required it. Nothing on the scale of Jim Crow would voluntarily, let alone legislatively, arise today. Nearly everyone would reject it, and most businesses wouldn’t want to lose their customers.

Again, that myth does not exist. No one suggests that a decision in favor of Masterpiece Cakeshop would reinstitute Jim Crow laws. However, I do not think that a majority of the justices will not invalidate Colorado’s nondiscrimination ordinance because of the potential peril. The two primary arguments made by Phillips are:

  1. Cake baking is artistry. Requiring the production of art is compelled speech which is impermissible under the First Amendment and;
  2. Baking the cake conflicts with my religious beliefs which insults my First Amendment right to Free Exercise.

Were the Court to subscribe to the first argument they redefine the meaning of art as it is understood in commerce. A bartender could contend that his exquisite drinks are works of art. No Martini for you! Similarly a chef who owns a restaurant could make the same assertion. No Coquilles St.-Jacques for you! In fact, no table for you.

The second argument has the potential to invalidate every nondiscrimination law in the country. Overturning Smith means that no nondiscrimination law could be enforced (according to Scalia who wrote the opinion for the majority). Who gets to say which religious arguments are valid and which are just a pretext for excluding certain groups of people?

Myth 4: Anti-Discrimination Laws Override Constitutional Rights

Reality: Although this is rarely stated so explicitly, this myth is constantly presumed by those in favor of government compulsion of speech and expression (as in Phillips’ case), or government interference in the internal affairs of religious institutions. However, anti-discrimination laws are statutory law, and therefore are subordinate to constitutional law, such as enumerated constitutional rights. Local governments can’t suspend the Constitution.

This gets more idiotic by the sentence. No one — NO ONE — maintains that any law can override constitutional rights. The ruling in Obergefell v. Hodges, for example, determined that gays have a constitutional right to marry. Therefore, state bans prohibiting those marriages were unconstitutional and, thus, nullified.

Myth 5: Anti-Discrimination Laws Have No Downside

Reality: This myth too is more often assumed than explicitly stated. However, anti-discrimination laws are not without their drawbacks. Not only are there are the costs of enforcement and compliance, but anti-discrimination laws are prime litigation bait, with plenty of frivolous claims filed and threatened.

We have gone down this frivolous litigation hole before. There is no evidence to support rampant misuse of nondiscrimination laws. I confess that I once had to defend the case of a minority male replaced with the same minority female. At the hearing I got a bit steamed. My lawyer (an old friend) grabbed me by the tie knot, looked me square in the eyes and said “Shut the fuck up!” But I digress.

Since passage of the Civil Rights Act of 1964, as a society we have generally assumed that we have a compelling interest in limiting discrimination. Every law, ordinance, even constitution right has some downside. As a survivor of gun violence I bear testament to to the downside of the Second Amendment. As a general proposition, no one needs to be able to discriminate with the exception of the ministerial exemption as it applies to religious organizations. Jack Phillips could have easily accommodated the gay couple. However, he convinced himself that this required his approval of their betrothal. He chose to demonstrate his disapproval which is what this is mostly about.

Suppose that the next time it is a black man marrying a white woman or a Jew marrying a gentile that the proprietor disapproves of? Rather than talking about the downside of nondiscrimination laws, we should be discussing the downside of not having nondiscrimination laws. What kind of society do we want to have?

Sometimes the government forces people to do things that they might not want to do. About 17,500 draftees were killed in Vietnam. We have speed limits and building codes. In some locales we require people to wear seat-belts. We require people to attain certain levels of education to be licensed to work in some fields. We require our citizens to do many things for a better society. Asking public accommodations to serve people they disapprove of seems like a small price to pay for a fairer society within a democracy.

It is long overdue for LGBT people to be covered by the federal Civil Rights Act. Not doing so is a shameful capitulation to conservative Christians who seem to have far too much influence in a secular nation.

Are we there yet?

Blake moves towards a conclusion with this bit of sophistry:

Those on the Left cheering as anti-discrimination law is hijacked and turned into a weapon against the First Amendment freedoms of religion, speech, and association should consider whether they really want to weaken these constitutional rights. Today it is conservative Christians having their rights eroded, but it will not end there. Political weapons deployed by one side will quickly be adopted by the other, and the Trump-led populist Right is vengeful and not particularly concerned with constitutional niceties or a culture of freedom.

Mr. Blake is imagining and assuming constitutional rights that do not exist. Freedom of religion means the right to worship as one chooses, or not to worship at all. It has never included the right to impose religious beliefs on others. Nondiscrimination laws are not weapons. They only become troublesome when they are violated which is something that should not happen. There is no “right” to discriminate in violation of applicable law. By next June I expect the Supreme Court to clarify the law to that effect.

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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.