The Unholy Trinity – That’s Not How Discrimination Law Works!

This is part of my series on Matt Walsh’s book, The Unholy Trinity, Blocking the Left’s Assault on Life, Marriage, and Gender. Chapter 7 is titled “Acceptance Is Mandatory: Why It’s Always A Mistake To Appease The Liberal Rodent”. Hopefully the subheading tips you off on the type of content you’ll find in this chapter. Here, Matt Walsh talks about his ignorance of United States law and makes it clear that he can’t tell the difference between a Church and a business. It’s also about how Christians are the real victims when it comes to discrimination laws.

I’m not going to lie, when I started this book review series, I thought it would be good content to dissect. On a blog dedicated to philosophy, it’s worthwhile to look at other perspectives and opinions you don’t agree with, and perhaps express reasons why someone else’s arguments don’t hold water. At best, you can discover some of the underlying assumptions in their worldview and the crux of why one person thinks an argument makes sense while another person doesn’t. And, at worst, you can make a nice counterpoint (assuming your writing is good). Walsh, being a far-right Catholic, is an ideal choice for me, considering that his perspective is practically the polar opposite of mine.

I didn’t think I’d have to explain basic US law.

I’m not trying to say this to make Walsh look like an idiot. I’m simply aware that this blog has a wide international audience, and US law is irrelevant to many people visiting. This is all to say that I’m rather disappointed that this post comes closer to a high school social studies report than the rest of my book review.

Now that I’ve said that, I’ll get into the actual content.

A white wedding cake with brown and pink trim around each layer.
Image via. Pixabay

Walsh spends the first part of this chapter lamenting that some lawsuits in the past decade have targeted Christians that refused to provide goods and services to queer couples for their weddings. This includes The Masterpiece Cake Shop case, a florist in Washington State that refused to sell flowers to a gay couple for a wedding, and a photography company in New Mexico that refused to provide similar services. Notably, the first one just had a hearing in the United States Supreme Court last December, and we will likely hear the results from that case later this year.

Masterpiece Cakeshop is defending themselves by reframing it as a dispute over compelled speech instead of discrimination, though the cake shop certainly refused to serve the gay couple. You can read and listen to the hearings here, but here is an excerpt the defendant’s lawyer Ms. Waggoner, sans commentary from me:

JUSTICE GINSBURG: What if — what if it’s — if it’s an item off the shelf? That is, they don’t commission a cake just for them but they walk into the shop, they see a lovely cake, and they say we’d like to purchase it for the celebration of our marriage tonight. The Colorado law would prohibit that. Would you claim that you are entitled to an exception?

MS. WAGGONER: Absolutely not. The compelled speech doctrine is triggered by compelled speech. And in the context of a pre-made cake, that is not compelled speech. Mr. Phillips is happy to sell anything in his store, including –­

JUSTICE KENNEDY: Well, didn’t -­ didn’t he express himself when he made it?

MS. WAGGONER: Yes, he did express himself when he made it. And the purpose for which he expressed it is important to the compelled speech doctrine and how it applies, but when you –­

JUSTICE SOTOMAYOR: I’m sorry, he did refuse to sell –­

JUSTICE KENNEDY: Well, could I — but could I get the answer to the question? So -­ so — so if it — if you agree that it’s speech, then why can he not refuse to sell the cake that’s in the window according to Justice Ginsburg’s hypothetical?

MS. WAGGONER: Well, in the context of if it’s already been placed in the stream of commerce in a public accommodation setting, his speech has been completed. He — he intended to speak through that cake with the purpose of whatever it was when he created it.

I should note that I’m not a legal scholar in any sense. If you’re interested in US Discrimination law, the excellent legal podcast Opening Arguments has broken down the Masterpiece Cake Shop case here and here (where Freedom From Religion Foundation’s Andrew Seidel is featured on the former episode). The hosts, including a professional Harvard-educated lawyer, can break everything down far more accurately than I can. I only comment to the degree I feel I can respond to Walsh, and from what I can tell I have a firmer grasp of legal reality than he does.

Walsh claims that all the cases involved people who didn’t want to play an active role in a gay wedding ceremony. For some practices, like photography, this may make sense as the services require some degree of active involvement. However, some, like the Masterpiece Cakeshop, only involve selling a product, the same product that the shop would otherwise provide to anyone else.

It’s silly to say that selling a product like a cake or a bouquet is actively participating in whatever the activity the product is used in. Once the product leaves the shop or is delivered, it is out of the business’ hands. If this is the case, then every mattress salesman has actively participated in a gratuitous amount of sex with many, many customers they have sold mattresses to. I suspect that the clerks would not be particularly thrilled if you informed them they got laid by this manner of argument.

There is an interesting question about what the limits of discrimination law should be. I don’t find it reasonable to leave all discretion up to the market. Free market proponents assume that a business that discriminates will have a smaller customer base, and locals will be inclined to shop elsewhere so that they don’t support bigotry.

Of course, this ignores that market forces in many locations can actually incentivize discrimination. Racists would have been more likely to eat at a segregated restaurant in pre-civil rights movement America. A place that publicizes that it doesn’t serve atheists might get a large customer swell in the American South. Many Christians patronized Chick-fil-A in 2012 when Dan Cathy spoke out against gay marriage, while the same folks boycotted Target for allowing customers to use the bathroom corresponding with their gender identity.

Even if the market hypothetically in the future leads to equality of opportunity for everyone, this still ignores that folks who are discriminated against have to put up with inequality now. They have to spend more time and more resources than someone who isn’t discriminated against to interact the same way with the rest of society. They have structural barriers that prevent them from interacting with basic goods and services like everyone else. This problem is exacerbated in rural America, which not only tends to lean staunchly Conservative, but people also has far fewer options available to them by virtue of existing in small, isolated towns.

That being said, there is something to be said about jobs like photography where someone is involved. There is a degree of artistic merit involved, and artists are capable of declining and accepting commissions clients as they see fit. If I have a wedding one day, it will be a humanist wedding and I wouldn’t want a fundamentalist Christian to be providing these services at the risk of getting a sub-par product. There is a balance here, especially since discrimination can be difficult to prove in circumstances where businesses don’t pick and choose clients to serve on a regular basis.

Whatever laws we decide on, discrimination on the basis of sexual orientation is still morally indefensible, regardless of what the law says or what holy book you use to make your case.

Walsh continues in the next couple of paragraphs:

“If the government can force a caterer to cater a gay wedding, and a photographer to photograph a gay wedding, and a baker to bake for a gay wedding, why can’t it force a church to conduct a gay wedding? Why, precisely? Because the church is a “religious institution”? So what? Where is it written that only religious institutions have a right to religious expression? I know where that distinction certainly isn’t made: the Constitution. If a photographer does not have the freedom to express his religious beliefs on the job, why should he have it just because he walks into a church? If bakers, and photographers, and T-shirt printers can be compelled to abandon their opposition to gay marriage, why can’t pastors?

But when we lost the argument against gay marriage, we lost the argument for our own religious liberty. The two happened at once, as we are beginning to see. Indeed, as liberals breathlessly argued, a church should not be allowed to keep slaves chained to the radiators of the basement just because some bizarre sect believes that slavery is divinely prescribed. Moreover, a pastor in this fictional denomination should not be allowed to rile his congregants into a frenzy and command them to go out and take slaves of their own. You cannot commit human rights violations, no matter your religion, and you cannot intentionally provoke others to do the same.”

It appears here that Walsh is expressing ignorance at how the American legal system works. It seems ridiculous that he sincerely can’t tell the difference between a business that serves the public (all of the public) and a private religious church. It would appear that he is intentionally blurring the lines to stir his readers into a panic that the churches are next.

It may surprise some people, but Walsh is right that America’s Constitution does not have anything outlawing private businesses from discrimination. The 14th Amendment, while important for giving former slaves equal citizenship,  only provided equal protection applying to discrimination from state and local governments.

However, while Walsh’s question I bolded was almost certainly rhetorical, The Constitution in my country does, in fact, protect religious freedom in the First Amendment. This amendment states that “Congress shall make no law respecting an establishment of religion or prohibit the free exercise thereof”. The Civil Rights Act of 1964 outlawed discrimination from businesses engaged in public accommodation and commerce, but this does not include churches.

Walsh does raise an interesting point. Even he recognizes that there has to be some limitation to religious freedom, lest some church cite their sincerely-held religious beliefs to engage in something beyond the pale such as slavery or child pornography.

The US courts’ methodology has been to establish the 3-pronged “Lemon Test” to determine whether or not a law is consistent with the First Amendment:

  1. The statute must have a secular legislative purpose.
  2. The principal or primary effect of the statute must not advance nor inhibit religion.
  3. The statute must not result in an “excessive government entanglement” with religion.”

These three prongs establish when a law violates the Constitution in America, and whenever any of these prongs are violated, then the law can be said to be unconstitutional. That way we can establish a law that bans slavery without concerning ourselves with violating religious freedom. Even if some religious sect enshrines slavery within its dogma, the primary purpose of the law is secular.

A law that forced churches to allow everyone through its doors would inhibit the religious practice, violating prong 2. However, since a law like the Civil Rights Act of 1964 has a secular legislative purpose and is not primarily designed to inhibit religion, it is deemed constitutional and the government can ensure that public businesses like restaurants and bakeries don’t discriminate against people on the basis of race, sex, etc.

Churches are distinctly not places of public accommodation, nor should they be. In a free country, we should have the ability to practice our religion (or refrain from doing so) as we see fit. I have no interest in forcing churches or religious leaders to wed someone they don’t wish to engage with. Frankly, I would be surprised if any court cases in America have been raised on grounds of discrimination. Nor will any courts take up this type of case, especially with the religious right’s firm grip on the American Court Systems (and at this time Congress and the Executive Branch).

Furthermore, giving religious exceptions to businesses to discriminate, in fact, promotes religious privilege over religious equality. This effectively gives people a license to disobey the law as long as they have a Holy Book alongside it. This creates a pro-religious imbalance in accessible rights. Even if I have sincerely-held beliefs, since I have no religion (unless you count Humanism) I am incapable of being given an exemption from the law with the same capacity a Christian has.

Walsh moves on away from legal arguments to discuss discrimination in the abstract.

He brings up that every day we engage in discrimination. We discriminate between who we would and would not like to spend time with, and in what manner we would like to engage with them. This is based on judgments and assessments on those persons and their behavior. It would be silly to not discriminate against a sex offender, or a man with a chainsaw outside your door.

He’s right in the sense that we use discretion and treat different individuals differently based on that behavior. In that broadest possible usage of this term, we all do discriminate.

This is, of course, not what we mean when we talk about discrimination in the legal sense, where we are usually talking about classes of people. By discriminating against certain classes wholesale, it introduces a power dynamic that allows one group to de facto have more access to society than another.

In the United States, for example, these groups include race, religion, national origin, age, sex, and other categories. These are known as “protected classes”. These are broad categories of persons, usually applying to characteristics that are immutable (an exception being religion). Strangely enough, this act also protects Walsh from being discriminated against on the basis of being a Catholic. Perhaps he will appreciate this in the future, given that the American population is rapidly shifting away from religion and towards atheism.

It certainly makes sense to discriminate based on individual behavior, of course. Broadly speaking, however, it makes no moral sense to refuse business-based service on any of these protected class categories. Gay folks as a group aren’t equivalent to creepy men standing outside your apartment holding a chainsaw. If you’re going to “discriminate” against a gay person, it should be because he is harassing your customers and not because looking at him makes you think of buttsex.

I even agree with Walsh in that I, too, discriminate in the more everyday, narrow sense. Sometimes I attend the Secular Hub in Denver, where I make a point of spending time exclusively with atheists/agnostics/etc. In that sense I am judging that this particular group of people will be better for my interests at this particular time for a short while. This group will give me a safe space where I can be open about my nonbelief without fear of repercussion.

Certainly, I am discriminating on the basis of religion in that instance. However, I as an individual am not a business serving the public. And I’m certainly not a faceless entity like a business which cannot possibly have religious beliefs of its own*.

Walsh insists that we have no right to be discriminated against:

There is no universal right to not be discriminated against. I realize that we have invented this right, but it does not actually exist as a constitutional or moral reality.

In this case, Walsh is trying to say that we merely invented the right not to be discriminated against. I have said this elsewhere while reviewing this book, but all of our rights are invented. We as a culture have established certain boundary conditions for what behavior is acceptable and what isn’t. While discrimination laws have the effect of enshrining “invented” rights into practice, we have to remember that rights enumerated in a country’s constitution are equally invented.

Those of us who are Americans often think that our constitutional rights are some sacrosanct moral foundation for behavior, but this is American Exceptionalism. We can compare rights that America values and what other countries value and notice many differences. To many Europeans, it makes no sense that we don’t have a right to healthcare but a firm inalienable right to own firearms.

Societies grant rights, including the right to not face discrimination based on certain classes. It is no less invented than, say, America’s First Amendment, which currently protects Walsh’s freedom to be a Catholic. By my estimation, both of these rights are valuable, no matter how invented they may be.

Fortunately, as time goes on, we will need these rights to be codified into law less and less. As the previously mentioned non-religious generation grows older and the older generations die off, these useless compulsions to discriminate based on sexual orientation will hopefully wane. The youngest generations are by far the most supportive of LGBTQ rights, and it looks like that’s not going to change. For now, there are vulnerable groups who deserve to be protected from mistreatment.

I look forward to a day when all bakers just do the right thing and bake the damn cake.


*even if American courts disagree.

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