From Georgia to Mississippi, it’s common to hear opponents of proposed religious liberty laws accuse such laws of enacting invidious discrimination. “Invidious” is an important qualifier because it explains the type of discrimination that critics use to describe the motive behind religious liberty legislation. According to one legal dictionary, “invidious discrimination” means “treating a class of persons unequally in a manner that is malicious, hostile, or damaging.”
No small amount of baseless hype and hysteria has been promulgated by activist groups like the Human Rights Campaign and the ACLU as they’ve attempted to intimidate and shame their opponents into submission by appealing to such accusations.
One of the most ubiquitous phrases is that such bills are a “license to discriminate.” According to this line of thinking, it is invidiously discriminatory if a baker, florist, or photographer declines to use his or her creative talents in service of a same-sex wedding ceremony.
Why It’s Not Invidious Discrimination
This is decidedly not invidious discrimination. Here are four reasons why religious liberty legislation does not protect or allow for invidious discrimination.
1. Invidious discrimination is an action that is legally required.
Opponents reference “Jim Crow” laws as a comparison to paint religious liberty in a negative light. But this is a false analogy. Jim Crow laws required segregation and unjust discrimination in spite of a business owner’s convictions. If, for example, a business owner didn’t want to discriminate against an African American, Jim Crow laws required such discrimination. These laws actually violated conscience. That is not what is happening in the situations involving bakers, florists, and photographers who refuse to participate in same-sex weddings. No one or no law is requiring any baker, florist, or photographer to decline their services to LGBT persons. All that religious freedom laws ask is that a handful of religious business owners not be legally coerced into using their creative talents in service of something they find morally or religiously objectionable.
2. Invidious discrimination is an action that is systemic.
The dark period of Jim Crow laws in American history was accompanied by systemic and cultural prejudice and discrimination. Such is decidedly not the case today, where the LGBT community is celebrated throughout many elite sectors of culture—business, media, entertainment, law, and academia. Religious freedom laws are hardly evidence of rank prejudice or bigotry against a whole class of persons. In fact, in cases like the Washington state florist, Barronelle Stutzman, she served and employed homosexuals for years. Her faith taught her that she should happily serve all customers, gay or straight, but that she could not be involved in their wedding ceremonies. She was happy to serve them otherwise and did so for nearly a decade. Religious freedom laws are a bulwark against the government adopting a sexual orthodoxy that would, in fact, require systematic implementation and pave over dissenting consciences.
3. Invidious discrimination is an action that is irresolvable apart from government intervention.
Building on the theme of systemic discrimination, invidious discrimination occurs when there are no possibilities of resolving injustices apart from the government stepping in and doing so. Ask yourself: Are homosexual men and women being denied access to all florists, photographers, and bakers everywhere? Absolutely not. But this was the experience of African Americans, who were uniformly denied services altogether within the free market. Gays and lesbians, utilizing the free market, can go to the hundreds, if not thousands, of other businesses that are glad to accept their money in exchange for service. Opposing religious freedom laws is its own form of perverse government intervention by interfering in the free market by targeting religious citizens’ free exercise of religion.
4. Invidious discrimination is an action that is irrational.
Invidious discrimination makes arbitrary, non-meaningful distinctions between persons. For example, regarding race, it makes no rational sense to segregate or discriminate against a class of people because of skin color. That is invidious. Skin color is irrelevant to what makes a person a fully integrated person. A person is a person regardless of skin color. In the cases involving bakers, florists, and photographers, they’re objecting to a false belief about marriage—namely, that two persons of the same-sex can form authentic marriages. It would be irrational, for example, for a baker to deny services to an interracial couple because a) the Bible doesn’t prohibit interracial marriages; b) interracial couples form real marriages. What makes the distinction very stark is that bakers, florists, and photographers object to the notion that gays and lesbians can enter authentic marriages, not who can marry since that is limited to complementary persons and based on sound reason and logic. This is not ultimately a question of who can enter marriage, but what marriage really is. And it isn’t irrational to believe that only men and women can form authentic marriages.
Religious Believers Deserve Respect and Tolerance
Supporters of religious freedom laws are not interested in discriminating against persons. What many find objectionable are participating in services that have an overtly sacramental meaning. Once you understand the true face and nature of discrimination, you’ll see that religious freedom laws in no way commit the type of discrimination defined above.
Respect and tolerance are essential qualities of a free society. But they require reciprocation. True diversity requires respecting individuals with a religious belief while also allowing for goods and services to be available for those who seek them. Better yet, a pluralistic civil society ought to allow for peaceable disagreement without resorting to accusations that one side is dehumanizing the other.
But if—or more likely when—the day comes where the government formally adopts the agenda of progressive sexual morality, what you will see is a campaign of discrimination against any confessional institution that doesn’t abide by official government policy. That zero-sum approach to public policy runs contrary to America’s rich legacy of protecting all religious viewpoints, and has made new religious freedom legislation all too necessary today.