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The Right Wing’s War on the L.G.B.T.Q. Community

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An Arizona Supreme Court ruling on Monday provided further evidence that gay rights are under siege in this country. Other recent events show that the Trump Administration is leading the assault. The Arizona court held that Brush & Nib Studio, a Phoenix-based company that makes customized wedding invitations, has the legal right to reject a gay couple as customers. Even though Phoenix has a local law that prohibits discrimination against the L.G.B.T.Q. community, the court ruled that the religious convictions of the business owners exempted them from the obligation to treat all customers equally. According to the court, designing wedding invitations is a creative act; to compel the owners to design an invitation against their will violates their rights both to freedom of religion and freedom of speech.

The opinion treats the business owners—two women—as a beleaguered minority. Their “beliefs about same-sex marriage may seem old-fashioned, or even offensive to some,” the court wrote. “But the guarantees of free speech and freedom of religion are not only for those who are deemed sufficiently enlightened, advanced, or progressive. They are for everyone.” This, to put it charitably, is nonsense. The owners of Brush & Nib are free to believe anything they want. What they should not be allowed to do is to use those beliefs to run a business that is open to the general public but closed to gay people.

It’s important to recognize that religious people have made similar arguments for decades—that their beliefs entitle them to exemptions from the rules that bind everyone else. This has been especially true when the religious people in question operated a business. In 1982, the Supreme Court rejected an attempt by an Amish business owner in Pennsylvania to avoid paying his share of his employees’ Social Security taxes, because his community believed in helping their own and not accepting assistance from the state. “Every person cannot be shielded from all the burdens incident to exercising every aspect of the right to practice religious beliefs,” Chief Justice Warren Burger wrote in his opinion. “When followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity.”

It’s long been clear that the government has the right to make sure that businesses refrain from discriminating in their business practices. In 1964, the court upheld the Civil Rights Act, and the burdens it places on business owners, because, Justice Tom C. Clark wrote, the government has the right to prevent the “deprivation of personal dignity that surely accompanies denials of equal access to public establishments.”

But the use of religious freedom as a tool to enable discrimination has become a bedrock principle of the modern conservative movement—and of the Trump Administration. The Labor Department has just proposed a rule that would allow companies that do work as federal contractors to discriminate against prospective L.G.B.T.Q. employees based on the company owners’ religious beliefs. “Conscience and religious freedom rights have been given second-class treatment for too long,” a senior Labor Department official told Politico. “This fulfills the President’s promise to promote and protect our fundamental and inalienable rights of conscience and religious liberty, the first freedom protected in the Bill of Rights in the First Amendment itself.”

Of course, it’s not clear that the Supreme Court will uphold these discriminatory practices. In the famous Masterpiece Cakeshop case, in 2017, which involved a Colorado baker who had refused to make a wedding cake for a gay couple, the Court dodged the issue. (The Court ruled for the baker, on the ground that Colorado officials, specifically the Colorado Civil Rights Commission, had behaved improperly, in a non-neutral manner.) But anyone counting on the current Supreme Court to protect the rights of any minorities, including the L.G.B.T.Q. community, is almost certainly looking for disappointment. That may become even clearer this term, when the Justices hear three cases on the question of whether the Civil Rights Act forbids employers from discriminating on the basis of sexual orientation and gender identity as it does on the basis of race or sex. These cases will be the first to address the rights of gay Americans since Justice Anthony Kennedy, who was clearly supportive of them, stepped down and was replaced by Justice Brett Kavanaugh, who is not. The President and his allies boast of their tolerance and enlightenment on L.G.B.T.Q. issues, but facts stubbornly suggest that they are hurting the cause in every way they can.



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