Why does it seem that, every time a national debate erupts about the place of minorities in American life, a gaggle of Straight White Guys with little connection to or understanding of these minorities holds forth on how they should or shouldn’t resolve their grievance about unequal treatment? This week’s version came in response to Masterpiece Cakeshop v. Colorado Civil Rights Division, the Supreme Court case of Jack Phillips, a Christian baker who refused to sell a wedding cake to a gay couple, Charlie Craig and David Mullins. Phillips is seeking a license to discriminate based on artistic and religious freedom.
This week’s featured culprits: David Brooks writing in the New York Times, and George Will and political scientist Greg Weiner in the Washington Post. Each of their pieces made some reasonable points. But each betrayed a galling inability or unwillingness to truly consider what it might feel like to be a disfavored minority in modern America—to enter a store and be stamped for rejection based on a stigma you’ve already endured your entire life. In other words, they refused to let empathy shape their thinking.
If you write, opine, make policy or rulings or otherwise hold power over others, you can’t do your job well if you don’t practice empathy. This appeal to empathy is not a plea for powerful men to feel sorry for minorities; it’s about creating the moral habits of mind that involve putting yourself in others’ shoes so you can better understand the many sides of an issue that disproportionately affects people who aren’t you. If decent white men should have learned anything from the Trump election, Charlottesville, the police killings of unarmed black men, and the nationwide sexual harassment scandal, it’s that we have a special responsibility to better learn and practice empathy so we can make more informed decisions and wreak less havoc across the world.
With that in mind, I present five arguments advanced by Clueless Straight White Guys about religious-based anti-LGBTQ discrimination and explain why they’re clueless:
Argument No. 1: It’s just cake; buy it somewhere else.
Brooks: “It’s just a cake. It’s not like they were being denied a home or a job, or a wedding. A cake looks good in magazines, but it’s not an important thing in a marriage.”
Will: “Denver has many bakers who, not having Phillips’s scruples, would have unhesitatingly supplied the cake they desired.”
Weiner: “The most obvious option is for a couple to obtain their wedding cake from a baker who is happy to supply it and from whom they are pleased to purchase it. Masterpiece Cakeshop is outside Denver. The supply of bakers there is ample. Common sense—or common courtesy—provides supple tools to resolve the dispute.”
Why it’s clueless:
It’s really the essence of cluelessness to assume the rest of the world resembles the urban or suburban bubble you may inhabit. For millions of people, the next nearest vendor could be hours away, and many people have day jobs and family obligations that are more restrictive than penning columns from a Brooklyn brownstone (as I’m doing now).
Even more important, “go elsewhere” entirely misses the point of this case. The feeling seems to be that if a major material hardship is not at issue, LGBTQ people should just suck it up and not fuss about such ethereal things as seeking dignity and avoiding the humiliation of exclusion from the public realm. As I’ve argued, full access to both commercial accommodations and marital recognition is a basic matter of equal dignity. For black Americans, standing a few feet further back on an Alabama bus was, yes, a material hardship for toiling housecleaners and waitresses on their feet all day; but just as important, it was an affront to dignity and it was deemed, quite properly, a constitutional affront.
As Justice Anthony Kennedy asked this week in oral arguments, wouldn’t a sign announcing no “cakes for gay weddings” be an affront to gay people? Whether that sign is actually hung or not, knowing that’s a store’s policy would be badly wounding, as reams of research on the harms of discrimination show. This case is about equality, not shopping.
Argument No. 2: It’s not like we’re condoning something as bad as racial discrimination.
Brooks: “There are clearly many cases in which the legal course is the right response (Brown v. Board of Education). But the legal course has some disadvantages…”
Weiner: “There is a substantial difference between sincere religious objections to same-sex marriage and bogus objections to laws against racial discrimination. Most people can make that distinction intuitively.”
Why it’s clueless:
This is a fundamental failure of understanding history—itself a failure of empathy because history requires putting yourself in the worlds of others. The argument here is that when religion was used to justify slavery and racial discrimination in the past, those people were obviously being disingenuous. But today’s use of religion to defend other forms of prejudice is, just as obviously, sincere.
But the Christian explanations for segregation really were deeply felt. And the Supreme Court has repeatedly thrown this rationale out. In 1968, it ruled that a South Carolina barbecue chain could not refuse service to black Americans even though the owner claimed doing so “contravenes the will of God.” In the 1980s, Bob Jones University lost tax exemption because it barred students in interracial relationships—despite claims that it was acting on biblical prohibitions. The trial judge in the case that later outlawed bans on interracial marriage declared in his decision that “Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents … The fact that he separated the races shows that he did not intend for the races to mix.”
These judges stated or conceded that the religious beliefs propping up racism were sincere. Fortunately, that didn’t hold up in court as a justification for segregation. Meanwhile, religious justifications for racial segregation are hardly a thing of the past, but have been bubbling up again for decades and have broken into the open as part of Donald Trump’s ennobling of white nationalism. Think the violent alt-right protesters in Charlottesville, Virginia, will decline to invoke every last religious exemption a court might hand them?
Clueless Straight White Guys seem to feel at the end of the day that, while racism is bad, homophobia really just isn’t that awful and so religious conservatives should just get a pass.
Argument No. 3: It would have been so much kinder if the gays had just been neighborly and courteous about all this, even though the baker wasn’t. The gay couple acted like nasty bullies (while also being whiny, litigious victims).
Brooks: “The complex art of neighborliness is our best way forward. … The neighborly course would have been to use this situation as a community-building moment. … The legal course … was to take the problem out of the neighborhood and throw it into the court system. … This is modern America, so of course Craig and Mullins took the legal route [which is one reason] why we have such a polarized, angry and bitter society…”
Will: “Craig and Mullins, who have caused [the baker] serious financial loss and emotional distress, might be feeling virtuous for having done so. But siccing the government on him was nasty … Craig and Mullins, who sought his punishment, have behaved abominably … Their side’s sweeping victory in the struggle over gay rights has been decisive, and now less bullying and more magnanimity from the victors would be seemly.”
Weiner: “The object of the case is not to secure Masterpiece Cakeshop’s services. It is to dragoon its owner, Jack C. Phillips, into compliance with their views.”
Why it’s clueless:
Really? The gays behaved “abominably”? Dragging out the actual word the Bible uses to condemn gays as disgusting threats to civilization? Will berates a gay couple for having the audacity to ask the government to enforce the law, and derides them as essentially fetishizing their own rights. This can only be said by someone who has never had to defend his rights against those who would repeatedly trample them. I’ve no doubt it’s annoying for Will to hear black, brown, female, gay, and trans people always clamoring for their rights; imagine for a minute what it feels like for them.
Telling minorities who have suffered a history of discrimination that it’s unneighborly, unseemly, or discourteous to fight for rights that they’re being denied but you’re enjoying is shameless—ultimately just another mechanism for denying those rights in the first place. Do you actually think the minority members love always having to be the loudmouths reminding the world that they deserve the same rights as you already have? And to the extent that some activists become almost permanently wedded to the “angry activist” position, can you really blame them?
Finally, Brooks and Will have their facts wrong about the case, and their mistaken assumptions suggest a clear bias against minorities, whom they seem to view as inveterate whiners. The gay couple is not guilty of “siccing the government” on the baker, and they were not the ones who threw this issue into the courts or “took the legal route” and polarized the nation. Colorado law bans anti-gay discrimination in public accommodations. What the gay couple did was file an administrative complaint after Phillips violated this law. The state ordered Phillips to comply with the law, and he refused, asserting a First Amendment right to ignore it. And the Alliance Defending Freedom, the conservative Christian group representing Phillips that spends $50 million a year on anti-LGBTQ and other religious exemptions lawsuits, is the one who has filed court cases all across the nation over this issue. Where’s the outrage directed at them?
Argument No. 4: Be patient and let the political process of persuasion and compromise run its course; the courts are the wrong place to go when your rights aren’t being protected, and it will only spur backlash.
Brooks: “The tide of opinion is quickly swinging in favor of gay marriage. Its advocates have every cause to feel confident, patient and secure … [Going to court] inevitably generates angry reactions and populist uprisings. … It takes what could be a conversation and turns it into a confrontation. It is dehumanizing. It ends persuasion and relies on the threat of state coercion.”
Weiner: “The court [is] too blunt an instrument for resolving many conflicts of rights … Left to the political process—or even better, to informal mechanisms of society—the conflict almost certainly could be resolved without forcing a choice between anti-discrimination laws and religious freedom … [The baker can] be made to deliver a cake, but that outcome would almost surely set the lesbian, gay, bisexual and transgender rights movement back by stoking resentment from its opponents. That is exactly what happened in the late 1990s and early 2000s, when court rulings sparked a wave of state constitutional amendments defining marriage heterosexually.”
Why it’s clueless:
Has anyone else noticed how well the “political process” has been functioning lately, particularly with protecting the rights of vulnerable minorities? And are Clueless Straight White Guys aware of the tens of millions being spent by conservative religious groups pushing hundreds of state bills and lawsuits seeking to undercut the reality of marriage equality and other gains toward LGBTQ equality?
Here’s the thing about patiently waiting for your rights to be handed to you and sparing the courts the need to do their job. It’s certainly correct that court fights alone can bring Pyrrhic victories when not accompanied by a broad base of public support. But political persuasion almost always works in tandem with courts—which are, after all, an equal branch of democratic governance. “Let the people decide” is the rallying cry of those enabling tyranny of the majority, secure in the knowledge that “the people” will not make the hard but just decisions that a court might.
The political process did not secure marriage equality; the courts did. And the brilliance of the LGBTQ movement, as those who aren’t clueless about LGBTQ history and the long struggle for marriage will tell you, was that its advocates did engage in persuasion, conversation, and appeals to the public—for decades. One result was that Colorado passed a duly enacted law through its democratically elected legislature banning anti-gay discrimination in public accommodations. This was the political process playing out, the product of years of compromise and persuasion. And that effort involved using lawsuits as a means to get the nation thinking and talking about their right to equality—as we’re doing right now around this lawsuit.
It also meant using courts to secure rights when, for too long, politics refused to deliver them. Only a few states legalized marriage through voter ballots or legislatures, and only after courts got the ball rolling. When “left to the political process,” most states passed laws barring same-sex marriage instead. Yes, pushing for LGBTQ equality in court spurred backlash, as Weiner notes. But it then generated a public dialogue around empathy and equality, and swept full marriage equality into being nationwide—including places like Alabama. If going to court for racial equality was the right course, it’s also the right course here.
Argument No. 5: The baker is only asking that his sincere religious beliefs and artistic freedom be respected; he is not harming anyone.
Brooks: “Phillips is a Christian and believes that the Bible teaches that marriage is between a man and a woman. Phillips is not trying to restrict gay marriage or gay rights; he’s simply asking not to be forced to take part.”
Will: “To make his vocation compatible with his convictions and Colorado law, Phillips has stopped making wedding cakes, which was his principal pleasure and 40 percent of his business… Phillips’s obedience to his religious convictions neither expressed animus toward [the gay couple] nor injured them nor seriously inconvenienced them.”
Why it’s clueless:
The prevalence and harms of discrimination are not abstractions, but have been extensively documented, including in this amicus brief signed by three dozens scholars. You could just spend some time speaking with LGBTQ people who have faced it, and you’d know this.
Most people seem to take Phillips at his word that, as a Christian, his opposition to participating in a same-sex marriage is a “sincere belief.” At first blush, this sounds reasonable, since we can’t get into his head. Yet while Phillips may experience his beliefs as sincere, it’s simultaneously possible—indeed likely—that bias and even animus are really at play. Consider this consistency test: The Bible clearly teaches not only that marriage is for straights, but that it’s for life and that divorce is a sin equivalent to adultery. Yet no one has sued for the right to refuse service to customers on their second or third marriage. Will accepts Phillips’ claim of religious belief on faith, as if the baker’s only choice is to stop selling his beloved wedding cakes entirely. But if that’s true, he would have made the same fuss over mounds of other Biblical transgressions. Courts can’t look into the minds of the parties to a case. But there is enough evidence that bias, often unconscious, is the overwhelming factor in anti-gay discrimination to take claims of religious sincerity with a grain of salt.
Even if we take religious-based anti-LGBTQ sentiment as sincere, there’s no question that refusing service to minorities causes harm. And where the wish to harm others by imposing your religion on them collides with the state’s interest in ensuring the dignity of access to public accommodations, the courts have already sided with the latter. The free exercise of religion, a federal court concluded, is “subject to regulation when religious acts require accommodation to a society.” The Constitution, said the Supreme Court in 1973, “places no value on discrimination,” and it “has never been accorded affirmative constitutional protections.” At the end of the day, two values are colliding: The freedom (religious-based or otherwise) to discriminate and the freedom to fully belong to the public. The public gets a say in which one prevails.
A final, neighborly note:
If you are a Clueless Straight White Guy, you are still lovable! You still deserve to be listened to. I am not arguing that only people directly affected by an issue have a right to speak about it. But you have a special obligation not to spew forth without doing your homework: Take the time to put yourself in others’ shoes; reach out to people who are differently situated than you and learn about their experience; open your own heart and mind before you tell others how to do same. Empathy is a job—and for those of us who have enjoyed a life of unearned privilege, it just got harder.