1. Battling Myths
  2. Religious freedom and discrimination


I stopped obsessing about creation versus evolution about twenty years ago, but I can still enjoy a good myth—or two.

Man used to chalk up every natural mystery to the gods—lightning bolts, plagues, you name it. They stuffed a god into the gaps of their knowledge, shrugged, and moved on. The god of the gaps was a busy god. But as time went on, one scientific discovery after another filled in the gaps, shrinking the god of the gaps. The moral of the story: Even when the evidence seems to point to intelligent design, hold out for a purely materialistic, designer-free explanation. One is sure to come along—sooner or later.

(Jonathan Witt, The “God of the Gaps” is Growing)

At this moment it seems as though science will never be able to raise the curtain on the mystery of creation. For the scientist who has lived by his faith in the power of reason, the story ends like a bad dream. He has scaled the mountains of ignorance; he is about to conquer the highest peak; as he pulls himself over the final rock, he is greeted by a band of theologians who have been sitting there for centuries.

(Robert Jastrow)


David French’s Liberty Files podcast currently features Ryan T. Anderson, who has co-authored yet another book, Debating Religious Liberty and Discrimination. The are podcasting from what the humbugs at Southern Poverty Law Center labels a hotbed of hatred.

It’s an unusually stimulating podcast for a religious liberty fanatic like me. There’s a related cluster of observations, or facets to the question:

  • We are (gradually? rapidly?) trading a presumption of liberty (i.e., you can run your life and business as you wish unless the government can make a compelling case for regulation) for a presumption of regulation (i.e., you must run your life and business as government says unless you can make a case for liberty).
  • In the realm of SOGI (sexual orientation and gender identity) anti-discrimination laws, we have universalized the relatively focused and compelling American interest in eradicating our historically-rooted “badges and incidents of slavery.” Now we speak of a diffuse, vague and more absolutist interest in “eradicating all forms of discrimination.”
  • The drive to eradicate  all forms of discrimination cares nothing about whether the discrimination is systemic, pervasive or actually causes any “harm” beyond hurt feelings. A recent Treasury Department report, corroborated by a report from Prudential, reflects “LGBT” households still having higher income than “straight” households, for instance — a striking contrast with what was suffered by African Americans under Jim Crow. And it is, of course, hypocritical, in the sense of “it depends on what ‘all forms of discrimination’ is.”*
  • The lowering of the “harm” bar to include “dignitary harm” is a reversal of the old canards “sticks and stones may break my bones, but words will never harm me” and “you can’t legislate morality.” Words, we now think, can harm. Morality is exactly what we intend to legislate: Thou shalt not treat thy neighbor shabbily. If anyone, anywhere in the jurisdiction is discriminating, there must be a law passed to forbid it. The moralizing impulse is even explicit in some cases, such as that of Tim Gill, who has pledged $500 million to the cause of passing SOGI laws “to punish wrongdoers.”
  • We have compromised the distinction between status and conduct. Several of the defendants in high-profile SOGI discrimination case demonstrably did not discriminate against people because of their LGBT status; one even had a long business history and friendship with one of the gay men now suing her for everything she has. They instead declined to participate in the conduct known as a “same-sex wedding.” But the Supreme Court has bizarrely compromised the status/conduct distinction (CLS v. Martinez) when status and conduct are closely correlated, and lower courts are now applying that by saying that same-sex marriage is so closely related to gay status (who else wants to same-sex wed?) that to decline participation in same-sex weddings is to discriminate on the basis of sexual orientation. (By logical extension, bakers must bake confederate flag cakes upon demand because the demand for event cakes with confederate flags is closely correlated with membership in a pale-skinned race.)

French and Anderson, in my opinion, needlessly wander off into the weeds of history when discussing the difference between SOGI discrimination and the far more systemic and pervasive racial discrimination that beset and still besets America. To the hypothetical question “well if they can’t be forced to make a cake for a gay wedding, what if it was an interracial wedding?”, French and Anderson’s podcast answer is, in effect, “sit down, honeychild, and let me mansplain how different racial discrimination has been in America than SOGI discrimination.”

If they were arguing in the Supreme Court, they certainly should cover that, but I consider that history unnecessary to resolve the cases — which I realize makes me quite a libertarian absolutist against compelled expression: My answer would be “what is it about ‘no compelled speech or expressive conduct’ you don’t understand?” If you want me to shift sides on that legal position, prove to me that interracial couples can’t readily get wedding cakes, or make their own, and that wedding cake is a sina qua non of marriage — and maybe a few other things that don’t occur to me just now.

Maybe we could move on to “win-win solutions” more easily if we abandoned a trope (“religious liberty”) that seems to have taken on a bad odor (“just a cover for discrimination”) and substituted this:

People should have the right to think, speak and act in accordance with their deepest beliefs so long as, in so doing, they don’t interfere with another’s right to think, speak and act in accordance with their deepest beliefs.

(David French, slightly paraphrased) So long as “interfering” is not expanded to include “not financing or otherwise facilitating,” that seems pretty serviceable to me.

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* Nobody, including Melania or Alan, want to force fashion designers to dress Melania or to force the demurring Southern California photographer to do an Alan Sears family portrait even though both refusals were patently discriminatory.

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Fiat justitia ruat caelum
There is no epistemological Switzerland. (Via Mars Hill Audio Journal Volume 134)

Some succinct standing advice on recurring themes.