All Rejections Are Not The Same
Okay this one will probably be real short compared to my usual work because it’s like a “101” course in a very simple mistake that I’ve seen all over the internet (the parts I visit) today.
There were two separate cases of denial of accommodations which made the news today, and the first of these featured many people on both sides of the political spectrum trying to cram it into a place it doesn’t fit – the context of the Masterpiece decision. Let me explain where folks are going wrong.
First of all, the Masterpiece decision, poor though it was, was an individualized decision based on the specific of Mr. Phillips’ experience with the commission which decided his fate. SCOTUS did NOT invalidate ANY non-discrimination law and if Phillips took the same action tomorrow he could be held in violation of the law again tomorrow. He “won” only in the sense that the Court found reasonable proof that those who dealt with his case did so with pre-existing bias against his religion. But for the purpose of this discussion, I’ll let the Masterpiece case stand in for the overall right-wing argument that people like him SHOULD be able to deny service to gays. Just understand that the case doesn’t actually permit that.
The first story today of which I speak involves Presidential Press Secretary Sarah Sanders (and her group consequently) being asked to leave the Lexington, VA restaurant called “The Red Hen” last night. The owner later explained that most of her staff was uncomfortable serving an apologists for the Nazi-wannabe occupant of the White House. Read at the link for further details. Sanders, for her part, mouthed empty words about “respecting everyone” (ask Jim Acosta how respected he feels after any given briefing, particularly the one where Sanders mocked him as being “unable to understand even short sentences” in a tone very much beneath the dignity of her position) but the real point of this discussion is that a lot of people began to say, on the right “oh so we HAVE to make the cake but y’all get to throw her out?” and on the left “Y’all want to be able to pick your customers so we will too.”
For the right wingers, this is typical ignorance and lack of logic, for the liberals it’s allowing the righties to set the terms of the debate falsely and stepping into a rhetorical trap. Why? Because the two situations are not analogous, either logically or legally. Allow me to explain.
In the case of anti-discrimination laws as in the sort applied to Jack Phillips in Masterpiece – the refusal of service discrimination is against a legally protected CLASS of people, not an individual – women, elderly, a given religion or ethnicity, in this case sexual orientation – you can’t discriminate against them because they are a member of that class. In the case of Sanders, she was not rejected for being a woman, or a Christian, or even a Republican (which wouldn’t be a protected class anyway) but for individual behavior – there’s nothing remotely illegal about this and it’s not discrimination.
For example, let’s say you own a diner and a black Muslim man comes in and he’s been obviously drinking. You CANNOT legally ask him to leave because he’s black, or because of his religion, or because he’s male. These are legally protected categories (race, religion, sex) BUT you CAN ask him to leave based on the fact that he seems to be potentially drunk. That’s a specific individual trait in the moment. See the difference?
To drive home the contrast, here’s the other case from today: Transwoman Charlotte Clymer was enjoying an event at a DC establishment when a bouncer began to harass her for her ID when she attempted to use the ladies room. He was in clear violation of the law but when she came out he had the manager in tow, and even when she literally showed him the text of the law he insisted he was right and had her removed. That business will now be the subject of a civil rights investigation and they might as well go ahead and budget the funds for the inevitable fine that will come down. Why? Because DC law forbids that kind of discrimination based on gender identity. The did not ask her to leave because she was loud, or drunk, or started a fight, or had her shoes on the wrong feet…any of which they would have been within their rights if she had done any of those things – but because they violated her privacy and liberty specifically because she was (suspected of being) trans.
Cases like this are NOT like the Sanders event and vice versa, don’t let anyone whether ally or foe make the analogy without correcting them. It’s how the enemy hijacks the narrative and takes it into Alex Jones, AFR type stupidity.
Photo by: Jill Hadfield