With my coffee this morning, I read a story in the paper about Ellen Page confronting Ted Cruz on LGBT rights. And, while the specter of two Canadians arguing about American public policy at the Iowa State Fair is strange enough, that isn’t what prompted me to write. No, it was Ted. I’ve never been a fan, as anyone who knows me will know, but what he said yesterday made me mad. What he refused to say made me even angrier. Let’s vent, and maybe learn.
It is the established law of this country that many businesses open to the public — “public accommodations,” including hotels, restaurants, and places of entertainment (there is some debate over the scope of the term) — cannot discriminate against a potential customer on the basis of the customer’s race, color, religion, or national origin. Forty-five states have similar laws (Texas doesn’t), and many of those are broader than the federal law and explicitly cover all businesses. All of these laws also make an exception for religious organizations and private clubs.^ They can refuse service.
So when you see a sign at the McDonald’s that says “no shirt, no shoes, no service,” that’s fine. That sign probably also says “we refuse the right to refuse service to anyone.” Well . . . yes and no. You can refuse service, but not on the basis of race, color, religion, or national origin. If I were an innkeeper, then, I couldn’t refuse service to Ted Cruz on the basis that he is Canadian, or Catholic, or Hispanic. I am free to refuse service to him because he is an asshole, and I probably would.
The Civil Rights Act, which is the federal law that extends those protections, doesn’t cover discrimination based on sex. The states have taken care of that; every state with a public accommodation law prohibits public accommodation discrimination on the basis of sex. The Americans with Disabilities Act extends protection to people with disabilities. Many states prohibit discrimination based on a customer’s age. That’s all as it should be, I believe. Nobody should be discriminated against because of the fundamental nature of their being, or because of their religion.
There is no federal law prohibiting discrimination against a customer based on his or her sexual orientation or gender identity. Many good people in Congress are trying to change this. Many states have already changed this — twenty-one states and the District of Columbia make it illegal to refuse service to LGBT persons on that basis. One of them is Iowa. The pork-burger vendor where Ms. Page and Sen. Cruz had their argument couldn’t have refused to sell her a pork burger because she’s gay or to Ted because he is, as far as I know, straight. (The asshole rule still applies.)
In twenty-nine states — again including Texas — there are no such laws at the statewide level. Some cities have municipal ordinances. Houston’s city council voted for one a few months ago; you may have seen our Lieutenant Governor’s intemperate remarks about how this is an advancement of the “gay agenda,” and the Texas Supreme Court has held that Houston must put its ordinance to a public vote. Did you know that Fort Worth has a broad public accommodations ordinance?* I am very proud that in my city, it is unlawful for any place of business to deny access to goods and services to anyone on account of his or her “race, color, sex, religion, national origin, age, disability, sexual orientation, gender identity, gender expression and transgender.”
The question Ms. Page actually put to Sen. Cruz was about employment discrimination, but his response was to go on a riff about public accommodation. He says “Bible-believing Christians” are being “persecuted” because of their beliefs, and after telling Ms. Page that he would not have a “back and forth debate on the subject,” told a story about an Iowa business that was “forced” to close after its owners denied service to an LGBT customer based on the owners’ religious beliefs. He tells the story all the time. It’s false. The owners of an art gallery and bistro in a converted church, who sometimes rented a room out as a private wedding venue, decided they didn’t want to rent it out for a same-sex wedding. When they were told that they had to follow the law, they chose to pay a fine rather than accommodate the one customer, and then they decided not to rent it out as a wedding venue anymore. That’s all. Their religious beliefs about gays and lesbians are so deeply held that they made the choice to change their business. Nobody forced them to do anything. In Sen. Cruz’s telling, though, the effect of the Iowa non-discrimination law is akin to “forcing a Muslim imam to perform a Jewish wedding ceremony.”
It isn’t anything of the sort, of course. Again, religious organizations are generally exempt from the Civil Rights Act — the one that prohibits public accommodation discrimination based on race, color, religion and national origin. In every state-level public accommodation law I’ve read that covers sexual orientation and gender identity, religious organizations are similarly exempt. And you know what? That’s fine. If a church that purports to teach the word of God wants to hang a “no fags allowed” sign on its clubhouse door . . . well, I’m not sure I want to go in there anyway, but the government can’t stop them from doing that. Why? Because the Constitution says that the government can’t make a law that impedes a person’s free exercise of religion. Whatever you do behind the closed doors of that church, or mosque, or temple — so long as it’s not hurting anyone — is no business of mine and, more to the point, none of the government’s business, either. And it shouldn’t be.
But if you throw open your doors to the public? That’s different. If the owner of a restaurant in deepest Alabama still abides by an outdated belief in the superiority of the white race, he’s entitled to that belief, but if an African-American customer comes in and asks to be served, the restaurateur has to stew in his own bigotry but serve the customer. That’s the law. He isn’t being “persecuted” because of his beliefs regarding color or race. He isn’t being prevented from doing anything, and he’s free to believe as he wishes. Likewise, a gas station owner in El Paso can’t refuse to sell gas to Hispanics, or to Mexicans, out of a fear that they might be illegal immigrants intent on having anchor babies just up the road. The station owner is free to worry about border security, and free to think deeply uncharitable thoughts about Mexicans, but he’s not free to discriminate against customers based on their race or national origin. He isn’t being “persecuted” by anyone — but he doesn’t get to persecute others.
Religion is the same way, and the constitutional “freedom of religion” doesn’t change that. If a gun-store owner tried to make his firing range a “Muslim-free zone,” that’s illegal. That is an example of persecuting a customer based on his religious beliefs. The inverse would be equally true. If the atheist owner of a coffee shop wanted to bar all Christians from entering his store and buying his cappuccino, that would be “persecution” of “Bible-believing Christians,” and it is absolutely and unequivocally unlawful throughout the country. As well it should be.
“Religious freedom,” however is a shield from discrimination. It is not a sword. It is not a license to discriminate. A devoutly Catholic Subway shop owner cannot not refuse to sell sandwiches to a Muslim customer because of the store owner’s genuinely held belief that Mohammed was a heretic. That’s fair. Both parties have “religious freedom;” that is, freedom to believe whatever they want to believe without repercussion by the government. If a customer does not wish to patronize a movie theater run by an atheist, or a Catholic, or a Jew, she can. That doesn’t affect the theater owner’s religion one bit. But if a religious person wants to see the latest blockbuster, she can’t be stopped from doing so because she’s religious. That’s the law, and it’s a good one. I’m very sure Sen. Cruz would agree.
Now let’s bring LGBT rights back into the mix and shine the light on Sen. Cruz’s hypocrisy. Senator Cruz claims to believe that if public accommodation laws are extended to include protection for LGBT customers, then “Bible-believing Christians” who want to refuse service to gays and lesbians will be “persecuted.” And in the court of public opinion, perhaps they should be. Others think they should be held up as heroes. But requiring the Mennonite owner of an art gallery with a rental room to rent it to gay people, if they ask, is not “persecution.” His refusal would be “persecution” on the basis of the customer’s sexual orientation. Senator Cruz wants to protect this “right to persecute” non-believers, sinners, and heretics of all stripes, but most especially the right to persecute LGBT Americans.**
That’s horrible, and that’s a large part of what made me mad this morning. But what hacked me off the most is his refusal to actually utter those words. It’s a very simple question, Senator: do you believe that a business should be allowed to refuse service to a gay person because’s gay? Do you believe that a business should be allowed to kick out a transgender woman because she is transgender? Those are yes-or-no questions, Senator. I know you believe the answer to each is yes, and you’ve ably telegraphed that answer to like-minded people. But you won’t say it in so many words. Why? Because you know it’s politically unpalatable. You know a huge swath of voters would be offended. So you cloak your anti-gay beliefs in the guise of “religious freedom,” make up a bullshit story about a business that was “forced” to close, and talk up unfounded worries about “Bible-believing Christians” (why is this always about Christians?) being “persecuted” for refusing to do business with gay people because the Bible tells them so.
I don’t want the government to do anything to take away your right to believe whatever you believe about gays, or women, or Muslims. I don’t care if it’s your religious belief or just your inherent prejudice that makes you think the end times will come if transgender men and women are allowed to have a pee in the right bathroom. You knock yourself right the hell out. But be honest about it. Answer the question. Admit that you think it should be okay for me to be fired by my employer for being gay, whether that employer is Christian, Buddhist, or whatever. Admit that you think it should be okay for me to be refused service at the only inn in town, whether that innkeeper is Jewish, or atheist, or anything else. I won’t stop thinking you’re a bigot and an asshole and wholly unfit for public office. But I might stop thinking you’re a coward.
(P.S. – In my spare time, I’m a lawyer. None of that was legal advice.)
^So a Catholic church could refuse to admit non-believers, because the people who wrote the Civil Rights Act were careful to protect “religious freedom,” and the local Skeptics Society could probably refuse to admit Ted. Probably, because what counts as a “private club” isn’t entirely clear.
*The Texas Legislature and Governor Abbott want to pass a state law that makes it illegal for cities to have non-discrimination ordinances. Think about that for a minute.
**”Protect” should probably be in quotes, because it’s not actually an affirmative right yet; it’s just that there’s no law against it. It would be an actual “right to persecute” — a right to discriminate, so long as your religion says it’s cool — if the Religious Freedom Restoration Act ever became federal law, as Sen. Cruz fervently wishes.