Anti-Discrimination Statutes Vs The First Amendment.


a clever analogy can be a valuable aid to rational thinking,  and consequently  a great force for good. a false analogy can be just as destructive to clear thinking  and understanding if it is allowed to take root. The most effective type of false analogies do not ultimately appeal to an individual’s sense of logic but to his emotion. Two situations with some superficial similaritiy are compared to one another, and the emotions that are associated with one of them is exploited in order to bolster the case for the other.  What influences the listener is not a legitimate logical parallel, but an emotional reminder of what has occurred in some other situation, and a fear of the possibility of that scenario  being repeated again.  But this fear is  irrational and meaningless until one is able to demonstrate through sheer logic that the two things in question can be legitimately compared to one another in the first place.

The current debate over the rights of business owners to refuse to cater to certain kinds of events on the basis of religious conviction has been dominated by a false analogy with the American segregation era.  Now what is the obvious difference between these two cases? It is that the Jim Crow laws of the segregation era were in fact laws that required all businesses to discriminate against a particular group of people. It did not matter what an individual business owner actually wanted to do, he had to comply with the laws. This scenario is of course the complete opposite of what we are dealing with in the current debate. The uniquely oppressive nature of state sponsored legal discrimination is what is missed here by Progressives. It is the universal scope of those laws that renders the particular group in question second class citizens within the society as a whole.  a decision by a private individual not to serve a cake for a particular kind of event does not remotely compare to this; for the prospective client  may merely move on to the next bakery. The only actual harm that he suffers, as   other commentators have have pointed out,  is that he is offended.

There is a reason that essentially every discussion of this topic  is ultimately taken back to the anti-Black racism of the Segregation Era by Progressives. It is because of a desire to utilize the emotions and attitudes that are associated with those  events by transferring them over into this present controversy. But this is only justifiable if the two scenarios are equivalent. Another very concrete way to expose false equivalences is for real people to mentally place themselves into each of the two scenarios and compare them. The very fact that we have Libertarian gays and lesbians that fully defend the right of business owners to refuse such services on religious grounds tells us what we need to know about this equivalence. Let the Progressive find a single Black person whether they be Libertarian, Conservative, Liberal , Socialist  or anything else,  that is O.K with living under Jim Crow laws. a forced regime of universal government discrimination is not equivalent to a private individual’s refusal to offer a very specific kind of service on religious grounds.

The commonly offered question with which the Progressive seeks to corner those who disagree with him on this matter is whether a baker ought to be  permitted to refuse service to Black clients within some particular situation (the  scenario will often vary). This type of question is always careful to include a Black client precisely for the purpose of  invoking the history that we have mentioned,  and  the sensitivities associated with it.  But even if the clear and direct involvement of the law in anti-Black discrimination  provided an understandable sympathy for the policies that were enacted thereafter, there is so such thing in this case.There is no government sponsored transgression for the currently discussed policies to correct. What we are dealing with is simply an attempt by the state to police private morality.  Private morality, contrary to the opinion of the Progressive, does not stop at the bedroom, it encompasses  the full range of our  individual lives: the freedom to  think, speak,  assemble,  and transact. In a contest between local state “anti-discrimination ” statutes and the First Amendment of the U.S. Constitution there should be no contest.

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