I appreciate Dan Johnson’s taking the time to comment on my New York Times essay “Gay Rights and the Race Analogy.” Unfortunately, his reading of my essay is careless, and his alternative proposal is confused.
My aim in the original essay is fairly narrow: I argue that people who support antidiscrimination laws that cover sexual orientation and gender identity—and I happen to be one of them—need to do a better job of arguing for them. Specifically, we need to do more than simply say that businesses “must serve all comers,” because that’s false, and we need to do more than point to the history of race discrimination, because that history, while instructive, is different from the current situation in salient ways. As I wrote in the original piece:
When civil rights laws were passed, discrimination against blacks was pervasive, state-sponsored, and socially intractable. Pervasive, meaning that there weren’t scores of other photographers clamoring for their business. State-sponsored, meaning that segregation was not merely permitted but in fact legally enforced, even in basic public accommodations and services. Socially intractable, meaning that without higher-level legal intervention, the situation was unlikely to improve. To treat the lesbian couple’s situation as identical—and thus as obviously deserving of the same legal remedy—is to minimize our racist past and exaggerate LGBT-rights opponents’ current strength.
Johnson seizes on the last line to accuse me of thinking that “equal protection” is a “reverse popularity contest,” where only the unpopular get equal access. He writes, “Corvino concludes that LGBTs are currently just too darned popular to deserve protection from discrimination.”
I neither conclude nor believe any such thing. Rather, I conclude that LGBT people are not “obviously deserving of the same legal remedy” as blacks (emphasis added). As noted above, I actually support antidiscrimination laws that cover sexual orientation and gender identity. But I think we need a better argument for them than “because … segregated lunch counters.” In the original post I make a plea for nuance and fine distinctions; that plea is lost on Johnson.
But Johnson’s confusion doesn’t end with his misreading of my position. Johnson bases his argument on “equal protection.” That’s an odd approach for someone defending antidiscrimination law. For one thing, the Equal Protection clause of the 14th Amendment constrains the actions of the state, not those of private business owners. (Johnson’s later reference to US Supreme Court decisions like Windsor, as well as to various tests the Court uses for heightened scrutiny, suggests that this basic error runs throughout his piece.)
Except for certain very specific exceptions, a business owner—say, a photographer—may choose to decline a job for any number of reasons. Perhaps she has too many bookings that day. Perhaps the event is outdoors, and she only does indoor events. Perhaps the client is a nudist, and she prefers not to photograph nudes. Perhaps the event includes lots of children, and she finds children annoying. Perhaps she’s worked with the client before, and she finds him annoying.
She can legally decline for all of those reasons, and countless more, except for those specifically prohibited: generally, sex, race, ethnicity, national origin, and religion; sometimes others, depending on the jurisdiction, including marital status, sexual orientation, and gender identity.
That’s why it’s false to say a business “must serve all comers.” A business owner may legally refuse a customer for no better reason than that she doesn’t like his hat—unless the hat has religious or cultural significance, like a yarmulke or a Sikh’s turban, and she’s refusing for that reason. So while antidiscrimination law is motivated in part by a desire to promote equality, it does so by giving certain groups specially protected status.
I agree that LGBT people are worthy of that status, and in my essay I propose a reason why: like racial minorities (although in different ways, and to a different degree), LGBT people have been “systematically, unjustly excluded from certain institutions and services.” I don’t develop the argument at length, because it’s a 1,000-word piece, and I had other fish to fry.
Johnson, however, takes me to task for “fail[ing] to address another obvious, often-cited analogue between LGBTs and African Americans: being LGBT or an African American generally do not affect one’s ability to contribute to society.”
I certainly agree with his premise, but I have no clue what effect it’s supposed to have on the argument.
Surely all of the following have “ability to contribute to society”: those who are planning an event on a day when the photographer is already booked; those who have outdoor events; nudists; those whose events include children; and those who have previously annoyed the photographer. But none of these groups are covered by antidiscrimination law, nor should they be.
I’ll say it again: A business owner may legally turn down clients for a wide variety of reasons. When that happens, it doesn’t mean that the client lacks “ability to contribute.” If anything, lacking certain kinds of ability may be a reason in favor of singling people out for special protection: Anti-discrimination laws often explicitly include disability status.
None of which is to deny that anti-LGBT discrimination is wrong—very wrong, wrong in ways I’ve long argued against. Nor is it to deny that the law has an important role to play in addressing that discrimination. But the details matter. Antidiscrimination law is more than just “equal protection,” private business discrimination is not covered by the Equal Protection clause, and “ability to contribute to society” is a strange rationale for special legal status.
John Corvino is Professor and Chair of Philosophy at Wayne State University in Detroit. Read more at his website.