Conservatives Need To Decide If Stigma And Ostracism Are Legitimate Moral Tools

One thing I wanted to discuss in my column for The Week, but didn’t have the room for, was the whole “define bigotry” question. Damon LinkerConor FriedersdorfRod Dreher, and Brandon Ambrosino all argued recently that simply thinking homosexuality is immoral or opposing same sex marriage doesn’t clear the threshold. I.E. to be a bigot, you have to behave in a hateful or spiteful manner towards gay people.

The point of my column was that conservatives are making a sudden and disingenuous attempt to back out of an established social charter. That charter was anti-discrimination law, and in recent decades it certainly seemed like everyone on both sides of the political divide agreed that the reach and framework of the law was appropriate for dealing with discrimination in the workplace and the market. Everyone also seemed to agree that the law’s protection should’t be limited to race, but should be extended to other groups that have faced oppression in American society. So calls for “religious liberty” amount to conservatives saying, “Oh, wait! No, we don’t think its reach and framework are appropriate after all!”

I think the dispute over who is and isn’t a bigot has the same basic problem. If you look at how Americans have used the word “bigot” — especially as it concerns race — I think it’s pretty obvious we haven’t been using it to refer solely to interpersonal behavior. For instance, imagine trying to argue that men like Strom Thurmond or George Wallace — men who leveraged all the political power at their disposal to preserve segregation and Jim Crow — were not bigots because they were perfectly nice and gentlemanly to the black people they met on the street or who worked in their offices. (I have no idea if Thurmond and Wallace were actual nice in that manner. But suppose for the sake of argument.) I don’t think anyone would be willing to go there.*

So the qualifications for being a bigot are not limited to interpersonal behavior. They also include holding to particular worldviews and sticking up for particular social orders. In which case, conservatives’ current attempts to redefine bigotry are, again, opportunistic efforts to duck out of an established social agreement as soon as their own oxe started getting gored.

But there’s also a deeper point here. Go back and consider Rod Dreher’s post specifically. It’s poignant because it discusses people Dreher knows — a successful lawyer and two New York City reporters — who effectively “live in the closet” when it comes to their SSM opposition, and who know they’d face ostracism from their social circles and stigmatization as bigots if they spoke up publicly.**

My initial reaction to this was essentially Andrew Sullivan’s — let me get you the world’s tiniest violin. But! Stepping back, I think any decent and gracious person has to admit there’s something a bit ugly about this. Human beings remain little more than upright apes, and what Dreher’s describing is a textbook case of the lower, lizard-brain functions by which we socially signal, define the borders of the tribe, and expel pollutants from our shared communal life. It’s the kind of thing self-presumed enlightened liberals would decry in other contexts.

But here’s the deeper point: the fact is human beings are social and emotional creatures rather than rational ones. And that means this kind of social policing, as ugly as it may be, is also critical to how our culture advances morally. In fact, given the importance conservatives place on communal moral order and decentralized social organization, you’d think they’d be the first to acknowledge this fact. Does anyone really think racism, for instance, was driven underground by civil and reasoned public discourse? Of course not. Racism was driven underground by collective social efforts to stigmatize and ostracize people who held to it. And it worked really well!

So I think we have two distinct questions to answer here:

1) Is the worldview under discussion actually morally objectionable? This is the “is opposing gay marriage as bad as supporting segregation” question.

2) Regardless of how you answer 1), are social stigma and ostracism appropriate tools for dealing with immoral worldviews?

And the two questions really do need to be disaggregated, because we’re all going to disagree on what constitutes an immoral worldview. I think opposing SSM is as bad as supporting segregation, and I think the belief that homosexuality is immoral is on par with the belief that black people are inferior to white people. I’m sorry, but I do. Dreher does not. And that kind of disagreement is going to crop up again and again across all sorts of different subjects. Which is just life in a free and pluralistic democracy. The question is: what kind of social charter do we all hash out to deal with those disagreements? That’s where 2) comes in, and there really is no right answer.

But we do have to own the consequences of our answer. If we conclude stigma/ostracism are not legitimate tools, then that means we’re going to have to accept the presence of people whose views we abhor at our gatherings and parties and workplaces and churches and dinners and so forth. Conversely, if we conclude stigma/ostracism are legitimate tools, then we have to be prepared for the day when we’re on the receiving ends of those weapons. You never know which way the winds of culture will shift.

Which seems to really be conservatives’ basic problem here. They’re just stunned by the speed with which American society has embraced homosexuality’s moral legitimacy, and by the resulting speed with which ostracism and stigma have been turned against them.

But given how American society dealt with racism and misogyny, for example, it really does seem like we’d all concluded that ostracism and stigma were legitimate tools. Which makes the complaints by Dreher, Friedersdorf, Linker, Ambrosino, et al  opponents of same sex marriage who are upset they’re being tarred as bigots look incredibly unprincipled and opportunistic. (UPDATE: My earlier version of this sentence was sloppy. Friedersdorf, Linker, and Ambrosino are all supporters of SSM, though they’ve argued against naming its opponents bigots. I should’ve made that clear.)

In short, if we’re going to change our minds and say those social tools actually aren’t acceptable, that’s fine — but in that case we all owe George Wallace a big fat apology.

Who wants to go first?

*I’d add that the problem with Michael Joseph Stern’s graceless and vindictive response to Ross Douthat was that he collapsed the bigotry/hatred distinction from the opposite direction. Conservatives are insisting bigotry cannot be present unless personal hatred is also present. Stern insisted that if bigotry is present, then personal hatred must also be present.

**Dreher also brings up the Mormon theater director in California who was driven out of a gig in 2008 when coworkers discovered he’d donated to the Prop 8 campaign. I left it out above because it deals with actual workplace retaliation as opposed to mere social stigma, and as such I think it’s genuinely troubling. There’s probably a strong case that anti-discrimination law should be extended to political and ideological beliefs. My understanding is some states already do so, with the expected carve-outs for firms and institutions with explicitly ideological missions.

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Thinking Through “Religious Liberty,” The State, And Anti-Discrimination law

Over at Salon, Matt Bruenig went on a much-deserved scorched earth campaign against the new bill from the Kansas State House, which would’ve effectively legalized widespread anti-gay discrimination in the state’s economy. (And given the Kansas State Senate just nixed it, I guess the campaign worked.) Defenders and pseudo-defenders of the bill rest their argument on versions of Rand Paul’s objection to the Civil Rights act: that who businesses do or don’t serve is a private matter between them and their customers, and government getting involved is a constriction of liberty.

Bruenig’s rebuttal is straightforward: contract and property rights and so forth don’t just emerge out of the aether. They’re written in law — which is to say, they’re a contingent social construct — and they’re enforced by police power — which is to say, the state’s monopoly on legitimate force. As a result, there’s mostly no such thing as “private” economic interactions. The relationship is actually three-way: between businesses, customers, and the state as mediator and enforcer. If a group of black people or an after party from a gay wedding sits down at your counter and you want them to leave, they aren’t just magically expelled by the cosmos. You call the cops and have them come down and force them out.

The upshot is that there’s no objective baseline from which increases or decreases in “liberty” can be measured. The very fact that there are rights of property and association and contract in play at all means coercion has already been engaged in. It’s social constructs all the way down. Before you can decide what these rights and laws are and how they will operate, you have already have a set of moral values in place describing what sort of social order you’d like to have.

Bruenig is obviously correct on all these points. However, I’m not sure they actually score much other than a rhetorical victory. (Granted, rhetorical victories can be important.) Even if we all agree these are just subjectively determined rules by which people can mobilize state violence in their favor, it remains the case that we do need objective rules for that. And they need to be rules that majorities in a pluralistic and highly diverse democracy, with lots of people with lots of different value systems and world views, can all live with. This is basically the “traffic light” theory of property rights — that property rights are good, not because they reflect some inherent moral truth, but because they facilitate human cooperation. Like traffic laws, property laws don’t have to be designed any particular way. So how we design them is a collective social effort based around what we think is the most just and flourishing social order. Anti-discrimination law is just one more aspect of that shared charter determining what the “traffic laws” of property and contract and so forth are.

This is the first clue as to why the conservative freakout over “religious liberty” is so disingenuous. What’s changed recently was not the content of anti-discrimination law’s protections — most everyone on both sides of the aisle (except Rand Paul, I guess) has been fine with those protections for decades — but the addition of sexual orientation to the list of protected characteristics, followed by the partial arrival of legal equality for gay marriages. In other words, if liberty is under threat here, it’s not from changing attitudes about homosexuality. It’s from a set of anti-discrimination laws that were improperly designed all along.

Once this is clarified, it seems to me, the conservative champion of “religious liberty” has three options:

1) Argue that sexual orientation shouldn’t be a protected category.

That’s basically what the Kansas bill would’ve done. The lawmakers tried to hedge by writing the bill as if it only got businesses out of endorsing or participating in gay weddings. But the language was so expansive it would’ve effectively kicked gay Americans out of the protection of anti-discrimination law entirely.

Furthermore, as I said, moral values come before property rights and contract law. So you can’t argue that the law should allow discrimination against gay people without also implying that discrimination against gay people is morally legitimate. (Or that you find that discrimination morally preferable to not allowing people who enjoy class, racial, or heteronormative privilege to leverage state power in defense of their privilege.) The two things are inextricably linked.

So in a certain sense, conservatives are right that they’re under threat from a surrounding society whose mores are changing around them. They just have no standing to complain, because they’re fine with the way our society also changed around people who believed black people are inferior and shouldn’t be allowed to participate in society in the same way as whites.

Conservatives try to get around this point by claiming they don’t want to be able to discriminate against a characteristic (being gay), just a behavior they morally object to (a gay wedding). This is coherent, after a fashion. But let’s clarify where that logic goes. It would also justify discrimination on religious grounds (“I don’t object to Jews, just to selling them products that would be used in a seder”) and in some cases on racial grounds (“I don’t object to black people, just to them marrying white people”). Are conservatives willing to allow those forms of discrimination as well?

2) Argue that moral objections to homosexuality are more legitimate than believing black people are inferior.

This seems to be the default position a lot of centrists and conservatives are sliding into. There are enormous and obvious First Amendment problems with it, as you’re effectively calling on government and the courts to decide what counts as a religion and what does not, or what does and does not count as an infringement of conscience. Judges will have to start explaining why Amish objections to paying social security taxes aren’t deserving of respect, but the Little Sisters Of The Poor’s objection to the birth control mandate is. Or why a southern evangelical’s belief that interracial marriage is against God’s law may be dismissed, but a traditionalist Catholic’s belief that homosexual unions displease the Almighty is of sufficient pedigree to command our deference.

Any principled conservative — hell, any principled American — ought to immediately balk at this scheme on purely constitutional grounds, not to mention the way it would further our unpleasant national habit of treating the Supreme Court like a bevy of philosopher-kings.

3) Tweak the scope of anti-discrimination law and jurisprudence.

Like I said, the law doesn’t have to be any particular way. And I think it’s at least conceptually possible that anti-discrimination law could be tweaked in ways that would answer at least some of the “religious liberty” concerns without running afoul of our recognition that systemic privilege and anti-gay discrimination are moral problems that call for systemic solutions.

For instance, in the case of the New Mexico photographer who refused to shoot a gay wedding, the only reason there was a case was because the courts determined the photographer’s business qualified as a “public accommodation” — the category of businesses subject to anti-discrimination law. I think there’s a reasonable argument to be made that a freelance photographer who’s basically a one-person shop (and any other businesses similarly structured) should not be considered a “public accommodation.” Laws could easily be altered to make the definition a bit less expansive, and in a way the clarifies matters for the courts. But, per the problems with option 2, it would need to be a rollback for all protected categories: religion, race, gender, disability, the works.

But are you willing to allow, say, a self-employed plumber to deny service to a couple just because they’re gay? Or interracial? Or traditionalist Catholic? I’m not. And if you’re not either, do you really think the law can convincingly differentiate a traditional “service” job from something more “artisan” like photography or baking? Do you think it should try?

So I’m deeply skeptical even of option 3, though it does it strikes me as a non-crazy idea offered in good faith.

But here’s the thing: if all we have to do to settle this problem in a way that’s acceptable to all sides is tweak the legislative definition of “public accommodation,” then what we have here is an incredibly banal conflict. It has nothing to do with “religious liberty” or the supposed rise of some pugilistic secularist tribe that intends to crush all divergent world views before it. All we have is an unintended hiccup, easily solved, resulting from a benign aspect of our anti-discrimination law that — up until two or three years ago — no one (other than Rand Paul) had the slightest problem with.

If something so modest will address conservatives’ concerns, then there is no “religious liberty” crisis and never has been. In which case, all the handwringing we’ve been subjected to was merely the product of conservatism’s collective ego and monumental self-pity.

On the other hand, if that option 3 won’t address their concerns, then conservatives’ intentions are far, far more radical than they’re willing to admit in public. Other than the conservatives in Kansas, that is.