Bill Newman: Last-gasp bigotry against gays? Not quite yet

Last modified: Saturday, March 01, 2014
NORTHAMPTON — “NO FAGGOTS ALLOWED.” “STRAIGHTS ONLY.” Some lawmakers across America want to endow businesses with the clear legal right to post signs such as these.

The asserted right to discriminate, based purportedly on grounds of religious freedom, has a long and sordid history in America. Recall the words of Judge Leon Mazile of Virginia, who in upholding that state’s anti-miscegenation law in 1959 wrote, “Almighty God created the races white, black, yellow, Malay and red, and he placed them on separate continents ... show(ing) that he did not intend for the races to mix.”

For some, claiming a religious belief as a basis for their homophobia would amount to nothing more than a legal cover for prejudice. But even a sincerely held Christian belief, as espoused by Judge Mazile, is not apt to receive judicial approval because claiming a religious basis for bigotry does not insulate the business that wishes to practice it from the norms, both legal and societal, that surround interstate commerce.

As Frank Keating, the former Republican governor of Oklahoma, who opposes same-sex marriage, said this week, “This isn’t 1964 anymore. ... If you open your doors to the general public, you can’t pick and choose who you are going to deal with.” Legislation allowing the right to discriminate against gays and lesbians on the basis of religious beliefs, nonetheless, was recently passed by both branches of the Arizona Legislature and approved by the Nebraska House of Representatives, as well. Animating the proponents were three state decisions — a Colorado administrative law judge ruling that a baker should not have refused to bake a wedding cake for a gay couple; a New Mexico decision that a photographer couldn’t advertise himself as available for all weddings and then refuse to photograph a gay one; and a Washington state ruling that a florist could not refuse to provide flowers for the wedding of a same-sex couple.

These cases all hinged on what the law calls “protected categories.” New Mexico, Colorado and Washington state all prohibit discrimination based on sexual orientation (as well as race, creed, sex and religion). But Arizona and Kansas do not, which means it is not at all clear that there would be any basis for similar rulings in those states. Until there is federal protection, either by legislation or a Supreme Court decision, the degree of legal protection for gays and lesbians can vary from state to state.

Fortunately, unlike the House of Representatives, the state Senate in Kansas refused to pass the proposal, and in Arizona, Gov. Jan Brewer, bowing to pressure from businesses and former GOP presidential candidates John McCain and Mitt Romney, vetoed the bill. Unfortunately, similar proposed so-called religious freedom bills are still percolating in legislatures in Missouri, Oklahoma, Mississippi, Tennessee, Idaho and South Dakota.

The Rev. Martin Luther King Jr. famously said, “The arc of history is long, but it bends towards justice.” In 2003, when the Massachusetts Supreme Judicial Court ruled that the state constitutional guarantee of equal protection applied to marriage, less than one-third of Americans supported marriage equality. Today a majority of Americans do.

Indeed, a recent poll by the Public Religion Research Institute shows that Americans who describe themselves as religious increasingly support gay marriage. Thirty-one percent of millennials, people between the ages of 18 and 31, ascribe negative church teachings or treatment of gay couples as a major factor in their choice to abandon their childhood religion. Almost 60 percent of white Roman Catholics support gay marriage. To be sure, 69 percent of white evangelical Protestants oppose it.

The theme for the May 2013 Northampton Pride Day was, “Our Journey Is Not Complete.” Since that date, when same-sex marriage was legal in 10 states and the District of Columbia, seven additional states have embraced marriage equality and the Supreme Court has struck down the federal Defense of Marriage Act, as well as the California prohibition on gay marriage.

In recent months, based on the Supreme Court’s decision in the DOMA case, federal courts have struck down same-sex marriage bans in Oklahoma, Utah and Virginia, albeit staying those decisions pending the exhaustion of appeals. And mayors Bill de Blasio of New York and Martin Walsh of Boston will be boycotting St. Patrick’s Day parades in their cities this year unless and until organizers allow gay Irish groups to march.

We can hope that these recent state bills represent the last desperate gasp of bigotry, but just as racism has been perpetuated in America long past the dismantling of formal segregation, animus against gays and lesbians — though it may dissipate — unfortunately will not disappear anytime soon. The slogan of last year’s pride day has lost none of its relevance. Our journey is not complete.

Bill Newman is a Northampton lawyer and host of a WHMP weekday program. His column appears the first Saturday of the month. He can be reached at opinion@gazettenet.com.