Jeb Bush Accidentally Made a Brilliant Argument Against Anti-Gay “Religious Liberty” Laws

Jeb Bush has an odd conception of liberty. As governor of Florida, Bush strongly opposed same-sex marriage, preferring to force committed gay couples to live as legal strangers with no ability to formally adopt their own children. As his presidential campaign warms up, though, Bush has taken a selectively expansive view of liberty. According to Bush, anti-gay business owners should have a legal right to refuse service to same-sex couples seeking to celebrate their relationship.

Bush’s support for anti-gay “religious liberty” laws are no surprise—unless you happen to have believed that silly BuzzFeed report that he would be “2016’s gay-friendly Republican.” What is surprising is that Bush framed his endorsement of such laws in a way that beautifully illustrates exactly why the usual argument for such laws is so fatuous. Take a look at his comment:

A big country, a tolerant country, ought to be able to figure out the difference between discriminating against someone because of their sexual orientation and not forcing someone to participate in a wedding that they find goes against their moral beliefs. This should not be that complicated. Gosh, it is right now.

At bottom, Bush is arguing that the law should differentiate between identity and conduct. He believes the state may protect gays from discrimination because they’re gay (identity), but not because they’re celebrating a gay relationship (conduct). Unfortunately for Bush, this argument fails quite spectacularly in the wedding context, because homosexuality is an identity defined by its conduct. To be gay is to be attracted to, and maybe marry, someone of the same sex. There is no more fundamental way to discriminate against a gay person than to refuse to serve them based on the fact that they are marrying someone of the same sex. That conduct is implicit in the gay identity. And by refusing to serve a customer because of his relationship, a business owner is inherently discriminating against him on the basis of his identity.

However, there is a context in which Bush’s identity versus conduct dichotomy works perfectly: religion. Religion includes both faith and exercise—the ability to believe and express faith, and the ability to exercise that faith. Congress originally passed the Religious Freedom Restoration Act because it felt religion couldn’t be protected unless religious conduct, in addition to religious belief, was safeguarded. Bush believes that religious conduct must be protected in order to secure religious freedom. Yet he doesn’t understand that gay conduct (like getting married) must also be protected in order to truly banish anti-gay discrimination.

There is, then, no real consistency in Bush’s current views on religion and discrimination—but there could be. Bush seems to believe that gay people shouldn’t face discrimination for being gay but should accept discrimination for getting married. If that’s really true, the logic should hold in other contexts: Christians shouldn’t face discrimination for being Christian, but they should accept a restriction of their rights when they open a store to the public. Of course, opening a bakery doesn’t implicate fundamental aspects of the Christian identity the way getting married implicates intrinsic elements of the gay identity. But who cares? With his carefully prepared statement, Bush elegantly laid the groundwork for a firm distinction between legal protections for identity and conduct. Now all he has to do is move it to the proper setting.