Friday, February 28, 2014

The fight over the right to outcast

Modern societies are not made of sturdy yeoman farmers, able to provide most things for ourselves. We live in highly interdependent societies, dependant on the civility of strangers for all manner of basic amenities and elementary comforts. Nor do we all live in large, cosmopolitan cities, where another provider is just down the road. Nor is animus randomly distributed. On the contrary, there are quite systematic patterns to animus. Systematic patterns whose burdens fall very unevenly.

Which is why anti-discrimination law has grown up. Partly to signal that previous patterns of systematic animus are not acceptable any more, partly to give the targets of such systematic animus redress, partly to acknowledge their full membership of society. A range of reasons, all tied together by the reality of living in highly interdependent societies, dependant on the civility of strangers for all manner of basic amenities and elementary comforts. 

In doing so anti-discrimination law clashes against an ethic, nowadays typically labelled libertarian, that was based in, and originally extolled, a society of sturdy yeoman farmers, able to provide most things for themselves; a source that is very far from how modern societies work.

Laws such as the recent proposed Kansas (pdf), Tennessee, Idaho, Mississippi and Arizona (and similar) laws are not just generalised defences of religious liberty, they are also something much more specific. The proposed Kansas and Tennessee laws explicitly, and the proposed Arizona, Mississippi and two (pdf) Idaho (pdf) laws more subtly, attempt to enshrine in law that animus against gay folk is still just fine (as even supporters of the Arizona bill agree). To the extent that the second Idaho bill overwhelms freedom of association by effectively frustrating any organisations from making queer inclusiveness policy.

These laws, either in their explicit language or underlying effect, seek to use public policy to protect denying a specific group the elementary civility of strangers--and the amenities and comforts therefrom. To judge them not by the content of their character but by their membership of a category, for the category is deemed to signal their moral character.

This is a view that is collapsing across Western society generally and the US in particular--which no doubt explains why the mainstream Republican Party wants the Arizona bill to go away while major sporting bodies state their support for tolerance and inclusion. It helps provide an answer to the question:
How did we go from “Rasmussen Reports study found that ’85% Think Christian Photographer Has Right to Turn Down Same-Sex Wedding Job,’” to this huge outcry that Arizona is bigoted.
The right to outcast as a public policy looks very different from commercial freedom for individual businesses.

It is also why the rhetoric of segregation--including the term "gay Jim Crow laws"--is cropping up. Just as Jim Crow was about enshrining in law systematic animus against a category of people, these laws do not seek to protect the private realm of religious belief, as did the US Federal Religious Freedom Restoration Act (provisions of the law are here [pdf].) Though that Act still ran into Fourteenth Amendment problems. Instead, these laws seek a religious entitlement to deny goods and services (including some very basic ones) to others: a rather different proposition. Religious liberty being defined as the right to outcast.

Which is where the libertarian defence of the more subtle right-to-outcast bills runs into difficulties.

Four business cases commonly cited were specifically about gay customers. For another way to look at anti-discrimination laws is that they are anti-outcasting laws. Is outcasting OK? is not the same question as whether such outcasting is effective. Still less is should particular forms of outcasting be legally protected? the same question. If the principle that one is trying to defend is that outcasting-by-category is not OK, then being told that such outcasting is not effective is not going to be a persuasive response.

When family is not a refuge
Particularly because the outcasting in question is part of religious outcasting that extends way beyond baking cakes or taking pictures for same-sex weddings. Such outcasting is about the horror and terror of being outcast by friends and family--by one's own parents--in the name of God. It is about throw-away kids, cast out of hearth and home in the name of God. It is about despairing loneliness and rejection that leads to suicide. It is about a religious doctrine that, since sexuality is not chosen and manifests in adolescence (and elements even earlier) cannot be other than a form of child abuse. It is about being made to feel horrible about oneself. The fear (and for many the experience) of being told by one's own parents that one is against God and nature. It is about being cast on the wrong side of a conception of "the natural" that is imposed on a much more complex human and biological reality in the name of truth, regardless of the human cost.

For queer folk, the experience of outcasting has an emotional resonance far deeper, and far more horrifying, than refusing to take photos or bake cakes for a wedding. For when people invoke God as the reason to do that, they are invoking a world of hurt and pain. Including denial that they are entitled to have a life of love and commitment, homosexuals being "called to celibacy" (a usage which is an abuse of the notion of a vocation or calling).

Which puts the anti-discrimination suits cited in defence of "religious liberty" in a clearer context. Yes, I wish they had not been brought if alternative providers were available, and yes there is an element of revenge in the entire debate, but it also about fighting for full status as members of society, a fight behind which lurks deeply personal and intimate emotional abysses of despair and rejection.

And if family is not a refuge, the yeoman-farmer ethic has even less resonance.

Targeting the vulnerable
For that is what make gays, and queer folk generally, such excellent targets for the gatekeepers of righteousness, such excellent targets for outcasting. Their vulnerability--growing up as isolated individuals in overwhelmingly straight families and social milieus--and that they are always with us. The war against human sexual and gender diversity is an endless war, so an endless prop for gatekeepers of righteousness.

Hence many religious folk taking the outcasting of gays as a benchmark of success or failure just as, in previous generations, outcasting Jews was a benchmark of success or failure.

As the post-Kansas backlash in particular, and wider trends more generally indicate, however, the usefully endless war against human sexual and gender diversity may not be so endless after all.

This is what the "religious freedom" legislative push looks like to an outsider. It starts with the Mississippi effort, which passes easily with no fuss. Too little fuss. So the effort shifts to the much more explicitly targeted Kansas and Idaho bills. But that generates far too much of a fuss, so the strategy shifts back to the Mississippi approach. Particularly when even a supporter can note provisions of the Arizona bill:
as fairly sure to generate unintended consequences and unexpected results.
But the backlash is so strong it overwhelms even the Arizona bill, threatening to overwhelm religious exemptions entirely.

Libertarian and conservative supporters of the not-gays-specifically-in-legislation legislation can indeed point to wider and ongoing issues about religious freedom. And it is true that there is a battle of the demagogues going on, in both directions.

Demagoguery made all the easier as there is no trust across the culture wars. Libertarians who try to bridge the gap by casting the issue as being commercial freedom dramatically fail to do so, either through bizarre naivety (such as suggesting that religious exemptions should be brought in along with same-sex marriage: the point is the outcasting, not some mutually acceptable modus vivendi) or because they really don't get the much wider emotional significance for the targets of outcasting.

Part of what is going on is an ongoing display of lack of communication due to people coming from completely different social experiences and networks. (Including whether one is coming to the issue via reacting to the Kansas bill.) We are not societies of sturdy, independent yeoman farmers and family and community cannot be presumed to be refuges. For many folk, the state can be a protector from social predators and that is what they deeply wish it to be. At the very least, they do not want it to be a weapon for, or protector of, outcasting.

[Cross-posted at Skepticlawyer.]

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