Oregon’s Vicious, Insidious Anti-Gay Segregation Referendum

Expanding the LGBTQ Conversation
Feb. 4 2014 10:48 AM

Anti-Gay Segregation May Soon Be Coming to Oregon

A 2007 gay rights march in Salem, Ore.
A 2007 rally for gay rights at the Oregon State Capital in Salem, Ore.

Photo by Craig Mitchelldyer/Getty Images

In November, Oregonians will vote on (and probably pass) a constitutional amendment allowing gay marriage in the state. Just down the ballot, another initiative will likely appear, giving business owners a “right of conscience” to refuse gay people service. As worded, the referendum will present itself as a modest caveat to the gay marriage law, extending a few basic safeguards for religious freedom. In reality, this ugly, mean-spirited initiative will herald nothing less than a new era of anti-gay segregation in Oregon—and, potentially, all across America.

The notion of legally enshrining bigotry under the banner of “religious freedom” is, of course, nothing new. For decades, private organizations argued that they had a First Amendment right to discriminate against black people based on racist readings of the Bible, even after the 1964 Civil Rights Act proscribed such discrimination with no religious exemptions for private citizens. The Supreme Court slapped down these perverse claims in 1983, and since then, arguments for the religious liberty of private companies to discriminate against blacks have become keenly impolitic.


Prejudice, however, is enduringly protean, and over the last few years, bigots have deftly repackaged this seemingly dead-letter strategy as a principled defense against gay rights. The tactic is a brilliant one. Gay marriage on its own is a winning issue because it has no victims, only cheerful, loving advocates. But toss religious liberty into the mix, and suddenly you’ve found your victims: those earnest, upstanding small-business owners who just want to do the Lord’s work by denying a gay couple a wedding cake.

It’s easy to tell gay couples who face such discrimination to just take their business elsewhere, as former Obama speechwriter Jon Lovett did recently. But that ignores the two broader problems of the “religious liberty” defense. The first is a purely legal one: There is simply no constitutional right for a private business to discriminate against gays. In a landmark case, the Supreme Court ruled that an individual can’t invoke his religious beliefs to dodge an otherwise valid law. Writing for the court, Justice Antonin Scalia scoffed at the notion of “a private right to ignore generally applicable laws”—think basic anti-discrimination ordinances—labeling the idea “a constitutional anomaly.” And in a now-famous passage, the justice noted that “conscientious scruples have not … relieved the individual from obedience to a general law not aimed at the promotion or restriction of religious beliefs.” Hatred of gay people is surely a “conscientious scruple” that Scalia himself shares. But it doesn’t excuse a private citizen at a private business from following fundamental anti-discrimination laws.

So much for the constitutional problem. Yet the second problem with the religious liberty rationale, the practical objection, is less easily dispensed with. It’s tempting to shrug, as Lovett did, at bigoted business owners who don’t really deserve gay people’s money or business anyway. And I myself would certainly never shop at Sweet Cakes. But in the realm of social equality, apathy is a form of moral abdication—one with deeply chilling consequences. Initiatives like Oregon’s could easily be extended to apply to any business, so long as the owner declares her personal religious hostility to gay people. What began with bakers and caterers has already stretched to clothing stores and florists; inevitably, it will soon stretch to restaurants, hotels, movie theaters—in short, to all facets of public life. A religious right to discriminate against gay people will lead directly to anti-gay segregation. Business owners whose “conscientious scruples” mandate homophobia might as well start putting out signs alerting gay people that their business isn’t welcome.

That’s not, I suspect, a reality that most Oregonians (or Americans) want to experience. But it is, without a doubt, the direction the country is moving—and Oregon’s “religious liberty” initiative will only expedite the process. Don’t be fooled by bigoted bakers’ sincere defense of their Christian principles, or by politicians’ pleas for freedom of conscience. The religious defense of discrimination is based not in morality, but in hatred and intolerance. And we shouldn’t condone their vision of an America segregated by sexual orientation.

Mark Joseph Stern is a writer for Slate. He covers science, the law, and LGBTQ issues.


Frame Game

Hard Knocks

I was hit by a teacher in an East Texas public school. It taught me nothing.

There Are New Abuse Allegations Against Adrian Peterson

After This Merger, One Company Could Control One-Third of the Planet's Beer Sales

John Oliver Pleads for Scotland to Stay With the U.K.

If You’re Outraged by the NFL, Follow This Satirical Blowhard on Twitter


Don’t Expect Adrian Peterson to Go to Prison

In much of America, beating your kids is perfectly legal. 

The Juice

Ford’s Big Gamble

It’s completely transforming America’s best-selling vehicle.

I Tried to Write an Honest Profile of One of Bollywood’s Biggest Stars. It Didn’t Go Well.

Here’s Why College Women Don’t Take Rape Allegations to the Police

The XX Factor
Sept. 15 2014 1:51 PM Here’s Why College Women Don’t Take Rape Allegations to the Police
  News & Politics
Sept. 15 2014 8:56 PM The Benghazi Whistleblower Who Might Have Revealed a Massive Scandal on his Poetry Blog
Sept. 15 2014 7:27 PM Could IUDs Be the Next Great Weapon in the Battle Against Poverty?
Sept. 15 2014 4:38 PM What Is Straight Ice Cream?
  Double X
The XX Factor
Sept. 15 2014 3:31 PM My Year As an Abortion Doula
  Slate Plus
Tv Club
Sept. 15 2014 11:38 AM The Slate Doctor Who Podcast: Episode 4  A spoiler-filled discussion of "Listen."
Brow Beat
Sept. 15 2014 8:58 PM Lorde Does an Excellent Cover of Kanye West’s “Flashing Lights”
Future Tense
Sept. 15 2014 4:49 PM Cheetah Robot Is Now Wireless and Gallivanting on MIT’s Campus
  Health & Science
Bad Astronomy
Sept. 15 2014 11:00 AM The Comet and the Cosmic Beehive
Sports Nut
Sept. 15 2014 9:05 PM Giving Up on Goodell How the NFL lost the trust of its most loyal reporters.