Tolerance in the Agora: Constitutional Rights and Obfuscations
There are times I am perfectly willing to examine the philosophical intricacies and readings possible in a law. But I have a problem engaging in this when its purpose is to obfuscate what, when all is said and done, is a pretty clear issue.
Certainly the framers of the Constitution of the United States wrote and lived in the reality of their time. Interpretation of those ideals have evolved with time. Of the 55 members who attended the Constitutional Convention in 1787, almost half of them owned slaves. I think it is fair to say that we have redefined what those early framers meant by ‘We, the People” and that we have forged a more humane society because of it. So, although we still have value for the fundamental principles enshrined in that document, it was a document written by men in a different time, and it requires – demands – interpretation in order to keep its relevance alive.
Nonetheless, the first thing I want to say about the “Religious Freedom Restoration Act” in Indiana is that debates on the interpretation of the Constitution should always come second to the more basic question: what do we want our society to be like? That, after all, was the reason for writing the Constitution in the first place. Historical documents are great for providing guidance, as tools for analyzing difficult issues, but ultimately people don’t live in documents. They live in a society.
The impetus behind Indiana’s version of the ‘Freedom Restoration Act‘ (SB101) was a desire on the part of some law-abiding citizens to treat other law-abiding citizens unequally in the public marketplace. This was the motivation behind its inception and to refuse to acknowledge this is obfuscation. Motive matters, and the motives behind this act were about enabling unkindness and exclusion of a certain segment of the population and having a law to back up the right to practice this unkindness.
There are things that need clarifying: there is no philosophical or rational basis to the idea that being exposed to homosexuality in any way compels you to change your own religious or moral beliefs. Similarly, a gay couple who get married in no way materially affects your heterosexual matrimonial vows. This is especially true if you are Christian and believe that marriages are recognized by God as a spiritual act. God will either recognize that gay couple’s vows, or he (she/it -I’m an atheist so I just don’t care what pronoun I use) won’t. Even if you believe that homosexuality is a sin, Jesus famously said: “Judge not lest ye be judged.” If you subscribe to the premise that it is a sin, it is certainly not the only sin.
But are the people who support this bill aiming to refuse to serve adulterers, liars, thieves, the covetous, gluttons, or the lustful? No. Let us refuse to be disingenuous: this bill was conceived to allow people who dislike homosexuality or transgenderism to publicly refuse to engage in economic transactions with LGBT people. It also, by the way, allows them to refuse to sell or service customers who are, in their religious views, ‘infidels’.
Please take a moment to listen to this video
“We’re not here to discriminate… Just as they have the right to live their life their way, I believe we should have the right to live how we want to.”
Still, if that includes refusing to sell his commercially offered product to a gay man, then he IS discriminating; it’s a reality he simply doesn’t want to acknowledge. What I find psychologically interesting is the cognitive disconnect he’s engaging in. He doesn’t want to say he supports discrimination, because his ego doesn’t like the implications of that, but he is clearly expressing the desire to be legally allowed to discriminate in his business dealings. This makes me suspect that somewhere, in his subconscious, even he knows this is an unkind and unchristian desire. Otherwise, why wouldn’t he be able to admit what he desires?
Moreover, I’ve noticed that a majority of people who have voiced their public support for this bill consistently use a form of statement that involves comparisons: “They have the right to ****, so I have the right to ***” It’s an interesting trope. For one thing, there is a strong undercurrent of what Lacan calls ‘The Jouissance of the Other’ in these statements. The projected, phantasmatic belief that ‘THEY’ have access to a pleasure that ‘I’ don’t have access to and ‘I’ am demanding this unfairness be addressed. As if just by walking into a store and being LGBT, that individual is evangelizing their LGBT religion and the storeowner has a right to refuse it. But alternate sexual or gender orientations are not religions, they don’t seek converts and, more to the point, when they walk into your store – they’re not a gay customer. They’re just a customer. There’s a good piece on this by Zizek, He calls it the politics of envy.
The second, and more telling aspect of this formulation of justification is: who are “THEY”? It’s as if we all should know who the “THEY” are that this young man is referring to. Here in the same piece, you have the Governer stating that “This is not about discrimination, it’s about restricting the Government’s ability to intrude on the religious liberty of our citizens.” But the constant use by supporters of the word “THEY” (because in fact we DO know exactly who they are) absolutely contradicts this. The Constitution fully and completely defends the religious liberty of private citizens. What it doesn’t do is protect their right to apply their religious beliefs to the detriment of others in the public sphere, like in public schools, or the marketplace.
The marketplace is not your home, or your church (although sometimes I wonder about that with some people), or your car. The marketplace is a communal and consensually agreed upon conceptual space in which people come together, from all walks of life and all backgrounds, to engage in trade.
Indeed, there have been times in our past when certain races were prohibited from engaging in trade in public marketplace: The Merchant of Venice is all about this. For centuries in many places in Europe, only Christians were allowed to own property, engage in banking, in farming, etc.
Indiana has passed a bill that takes the US back to that time period, and enables that kind of exclusion in the public market. Certainly, there have always been limits to transactions in the marketplace, we have evolved rules to mitigate certain types of behavior, like cartels and monopolies. But those rules have motivations behind them, and those motives were aimed at keeping the marketplace free and fair and open to anyone with the intention to engage in honest trade.
By no stretch of the imagination can a gay person be accused of the intention of engaging in dishonest trade just because they are gay, and no one is even suggesting that this is the case. It serves to legitimize the moral repugnance of some for others and to legalize discriminatory behavior in the public sphere. When someone does business with you, they do not do business with the private citizen you. They are doing business with a commercial entity. So, behind all the sophistry and the obfuscation and grand talk of constitutional rights, this is a bill conceived to allow certain groups of citizens to be legally excluded from, or disadvantaged in the marketplace.
It’s purpose is fundamentally unethical, and the even the slave-owning framers of the Constitution would agree.
Finally, if people were simply interested in making sure they never had to serve an LGBT person again, they could simply put up a sign that says: “We are legally obliged to serve fags, dikes and freaks, but we don’t like doing it and we aren’t obliged to treat you with respect.” That would keep the people they dislike out very effectively. The problem is, it would entail them having to own up to and confront their own very bigoted desires on a daily basis. And they’re not willing to do that.