Thoughts on the First Amendment Defense Act

I’ve wanted to make a blog post about this for quite a while now.

In mid-December, I made a few tweets about the First Amendment Defense Act. This resulted in a number of long, long arguments about the bill and its premise, which eventually devolved into me genuinely having to argue against just ridiculous things. But that’s besides the point.

Now, I haven’t read the bill myself, I only know the premise. The premise being, essentially, that businesses such as florists or bakeries should not have to cater to same-sex weddings if they cite their religious beliefs as reason. This is a very simplified version of it, I know, but, essentially, it’s what it is.

I do know that there have been times where same-sex couples went into places like Christian florists or bakeries, asking for flowers or cakes for their wedding, and they were denied service because the Christians who owned the businesses “didn’t want to support that lifestyle.” If I recall correctly, in a few of those cases, the couple has brought up a lawsuit against the business on account of discriminatory practices, and, in all the cases I’m aware of, the couple won the case. It’s something along those lines.

I’ve repeated this in a very simplified way, but this is the basic premise of the issue. Now, I kind of want to give my opinions on it.

Now, from face value, opposing the bill seems like an easy and common-sense position to me, at least on an instinctual level. The FADA would allow same-sex couples to be discriminated against in an area. As a member of the LGBT+ community myself, it’s just a visceral thought to say “no, that shouldn’t be allowed.” However, there are arguments to be made that I feel go deeper than that.

A common argument that I hear in favor of the FADA is “well, would you want to bake a cake for Nazis? One that has a Swastika right on it?” The idea of this argument is that Nazis are people whose lifestyles I personally disapprove of, and I do not support Nazi movements or ideas, so I would not want to make a cake that Nazis will use. Then it is compared as being the same as the same-sex couple who wants a cake. In both cases, the bakers personally disapprove of what it is being used for, and to be consistent, it forms a dilemma– allow gay people to be discriminated against in the cake industry, or force people to bake cakes for Nazis?

To this argument, I say it’s a bit of a false equivalence. Homosexuality is not a lifestyle or a choice, it is something that someone is born with and cannot change, and it does not entail oppression or harm to others. Nazism, however, being an ideology, can change (usually when a Nazi actually gets to meet a Jew), and the ideology is inseparable from the idea of oppressing certain groups. I am aware that some religious doctrines define homosexuality as evil, and I disagree with it, and I would say that homosexuality is much less horrible than Nazism. If anyone genuinely believes that homosexuality is evil, I also encourage them to go and meet a gay person, most gays I know of are quite benevolent. I mean, this is kind of like refusing service for a black person because they’re black, which is… pretty lame.

Also, I don’t know if I’d personally turn down Nazis who want me to bake them a cake. I mean, I vehemently oppose Nazism, but I won’t say that there’s no amount of money that would bring me to make a cake for them. That would be a lie. Obviously there’s an amount of money that can make me do this. However, for some people, I do realize that they might put principle over profit, which can be a good thing at times, of course (as Goldman Sachs shows us, putting profit over principle can be harmful for long-term economic stability). However, I propose that in this situation, it doesn’t make sense that it would cause any real harm rather than discomfort, and that both parties would benefit, as the gay couple is expected to pay for the cake. Really, at the end of it, both of them lose some time, and no profitable exchange occurs then.

That’s another thing. The idea of it is essentially that it would be acceptable to take away economic opportunities from specific groups. This… doesn’t really help anybody out? It’s kind of lame, honestly. And, if you think about it, it could lead to other potentially undesirable scenarios. Imagine if a Muslim were to deny service to a Jewish person, or to a Christian, citing religious conviction against that group? I imagine that it wouldn’t be a pleasant experience for the Christian/Jew, much like it wouldn’t be for the gay person being denied service by a Christian (or Muslim, as that also happens). However, I will admit that this is a bit of an unlikely equivalence, as it’s a different of over 70% of America (Christian/Jewish population) and around 5% of America (LGBT+ population). I still think that it would suck if it happened, either way.

Another argument that’s commonly said, though, is comparing the alternative to the FADA to slavery. I… kind of disagree with this. Slaves were put into the business of slavery against their will, are forced to do every slave job, and usually cannot quit being slaves at any point in time. A baker, however, willingly went into the business of bakery, can quit being a baker at any point in time they so choose, and just decided they didn’t want to do this particular cake. Also, they’re being paid money to do it. I mean, if you have a job as a janitor, you kind of have to clean up messes even if you don’t like it, or else you get fired, and it’s not slavery because you signed up to be a janitor and you work for money. However, I guess it could be considered different for a self-employed baker who went into business only to cater to straight couples… well, whatever, I just think that literally calling it “slavery” isn’t a fair comparison, as actual slavery is far more horrible than this.

Now, there is an argument to be made that I felt like was convincing to me when I was vehemently opposed to the idea of it. It’s the argument of negative rights versus positive rights. I’ll try to explain, though I feel like I might butcher it trying to recite it from memory. Positive rights are services or something that the government provides to the people, examples including things like education, welfare, etc. As citizens, we all have access to public education, if we so choose to. Negative rights are restrictions on the government, freedoms to choose to associate or not associate. Examples of negative rights are things like freedom of speech, freedom of assembly, etc.

There is a premise, a really libertarian one, that goes “if we believe in negative rights, they should not be superseded by positive rights.” This essentially means that if someone doesn’t want to provide you with something, they should not have to. And, from this, I can say I kind of agree with it. Despite being on the left, I agree that USUALLY you shouldn’t be entitled to other people’s labor. You don’t need the government to make you a car and give them to everyone; I mean, not everyone needs a car to go to work and everything, and you can ride with somebody else, or– even better for the environment– you can even just ride a bike. And we also don’t need the government making everybody fancy expensive clothes, really that’s more of a luxury than a necessity, any old clothes will do. And, I sort of agree that, when it comes to gay wedding cakes… it’s not really a necessity. Gay people don’t receive any physical harm from being denied a wedding cake from someone, they can easily have a wedding without a cake, or they can even go to a different bakery that does cater to gay couples. I kind of think this is fair, even if I disagree with why the baker would turn down the gay couple.

However, I sort of believe the negative rights idea brings up another problem… I said “usually” for a reason. In a world where negative rights are supreme, there is no guarantee for positive rights. This, I believe, can be a casual thing, but there are times where I would look at an issue and not support it. Say… LGBT+ people being denied healthcare purely for being LGBT+.

Now, disagree with me on the issue of healthcare all you want– I know that Obamacare has some controversy about it (it could definitely be improved), but I do support some sort of government system, because we’re getting our asses kicked by people with single-payer and individual mandate systems, and they make up the top ten countries with the best healthcare systems. But this isn’t about whether or not it should be a government service, so let’s not get off topic.

If a member of the LGBT+ community is in need of medical service, and they are well within their ability to pay for the service, say being insured and all that, they could still be denied medical service purely for the reasoning of “well, you’re a homosexual, and I don’t support your lifestyle because of my religious convictions, so helping you get better and thus allowing you to continue to sin would be reprehensible.” This is what fully applying the FADA entails. And this, this is just dangerous. Studies show that the LGBT+ community is greatly discriminated against when it comes to medical care, and it’s a horrible thing to be denied a necessity ESPECIALLY when one can fully afford it.

Out of all the arguments that can be made for and against the FADA, I say that I support it applying to non-necessity businesses like florists, bakeries, and photographers. But when it comes to necessities (especially ones that the person in question is well able to afford) such as medical care– sorry, but no, we’re not going to have lives lost unnecessarily due to anybody’s personal beliefs causing discrimination, that is, at least, not something I can bring myself to support. I feel like the idea of limiting negative rights when the neglect of others directly leads to lives being lost is, something that people can generally agree on, or at least I can hope so in this case.



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