Discrimination Goes Underground

Back when I was still in the theater biz, I had an exceptionally awkward conversation with an exceptionally dimwitted producer trying to get my advice as to how he could avoid hiring any homosexual actors.

(As an aside, who would go see a professional theatrical performance that didn’t have any gay people in it? Given that there has likely never been any such production, we may never know the answer to that.)

He was unfazed when I pointed out that he was both colossally ignorant and loathsomely bigoted, so I appealed to his reptilian instincts and told him he’d be in trouble with the law if he were to proceed with this plan.

“Oh, we wouldn’t have to tell them that’s why we’re not hiring them,” he said. “They’d never be able to prove it anyway.”

I thought about that as I read the story of Elaine Huguenin, the New Mexico photographer who, because of her religious convictions, refused to take pictures of a gay couple’s commitment ceremony and ended up losing a lawsuit because she ran afoul of the state’s new anti-discrimination law. Had she claimed to have another assignment the day of the gay wedding shoot, she could have bowed out without raising any eyebrows or prompting any litigation. She’s being punished not just for discriminating, but for being honest about what she believed. In that sense, she’s morally several steps up from the anti-gay producer, except that his theater kept hiring gay people in spite of their pinheaded leader, so it’s hard to tell which situation is more problematic.

Huguenin’s lawyers argued that the New Mexico statute preventing anti-gay discrimination violated the First Amendment by suppressing Huguenin’s freedom of religion. Dale Carpenter of the University of Minnesota filed an amicus brief that said, in part:

“Consider, for instance, a freelance writer who writes press releases for various groups, including religious groups, but refuses to write a press release for a religious organization or event with which he disagrees. Under the court of appeals’ theory, such a refusal would violate the law.”

That’s true, but it would also probably never happen. Even if someone complained, the state wouldn’t be likely to prosecute. State crackdowns on religion tend to be a one-way ratchet.

Defenders of this decision equate opposition to gay marriage with racism and claim that Huguenin violated the law precisely “as if [she] had refused to photograph a wedding between people of different races.” But if that’s the standard, that would mean that the flip side would also be true. Professional shutterbugs in New Mexico could be conscripted into service as the official photographers for the local branch of the Ku Klux Klan.  Or, if it’s opposition to immoral sexual behavior that is uniquely restricted, then what’s to prevent producers of pornography from legally compelling Ms. Huguenin to take pictures on their behalf?

But, again, who thinks either of those scenarios would ever come to pass? Not me, certainly.

This is not to say that gay weddings have anything in common with pornography or Klan rallies.  Rather, it’s an acknowledgment that the First Amendment was designed to protect a wide variety of religious expression, even if, or perhaps especially if, that expression is out of step with the conventional wisdom of the day.

But that doesn’t seem to be how it works in practice.

Fact is, we place clear restrictions on religion when it interferes with someone else’s fundamental rights, and I’m okay with that. I’m glad, for instance, that anyone refusing to let a black person shop at their store can’t justify themselves by saying that racism is part of their religion. With the DOMA decision, homophobia and racism are now considered legally and morally equivalent, so more Huguenin-esque incidents will crop up in the days ahead. But even more likely, you’ll see more of what my gay-hating producer was doing. Opposition to homosexuality will go underground, and gay people will encounter increased discrimination disguised as something else.

I’m not sure what to conclude from this, although I’m happy to call attention to what a slimeball my old producer was.

To Save the Planet, Get Your Hands Dirty
Undissing the Monkees

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