That’s the question Rick Santorum asked on “Face the Nation” today.
This was Santorum’s lead-in to his assertion that “tolerance is a two-way street.” It’s clearly a loaded question; is it also a false equivalency?
A core concept of the Constitution is that everyone has equal rights, and a basic function of government is protecting those rights. Of course, government can also infringe on rights, which is why the Constitution provides for checks and balances and Chief Justice Marshall read into its framework of government a power of judicial review over legislation.
I would like to respond to Santorum’s question by asking him this question: Should the law allow a white baker to refuse to sell a wedding cake to a black couple, and if not, then why should he be allowed to turn away a gay couple, and how does he reconcile that disparate treatment with the notion of equal rights?
Make no mistake, these are difficult and slippery concepts to deal with on an intellectual level, and like a ship captain steering his vessel in fog or a pilot flying in clouds, you need some sort of beacon to help you navigate through the murkiness.
The phrase “false equivalency” holds the key and provides our guidepost. As my question above suggests, tolerance isn’t necessarily a two-way street. Democracy should be defended; fascism or communism shouldn’t be. Yelling “I hate Obama!” or “I hate cops!” on a street corner should be tolerated; yelling “Fire!” in a crowded theater shouldn’t be. Life is full of equivalencies, many of them are unequal, and we sort them with right and wrong as our basic tool.
It’s right to respect Rick Santorum’s right to his own religious beliefs; it’s wrong to let him use his religion as an excuse to discriminate against gay people in his trade or business. It’s right to let him exercise homophobic speech in public; it’s wrong to election a homophobe to public office.
Free speech is one of our constitutionally guaranteed rights. The ACLU has defended the exercise of this right by Nazis and Communists while agreeing with neither. In doing so, it’s not defending their ideologies, but the principles of free speech and equal rights.
The Constitution also confers on government the power to regulate commerce. Until Hobby Lobby, at least, the Supreme Court historically applied different free speech standards to individuals exercising their personal liberties and businesses engaged in trade and commerce. Government can, for example, prohibit false advertising to sell products or services, but can’t regulate or punish lying in political ads. Government can’t require you to associate with blacks, gays, or Muslims in your personal relationships, but can prohibit you from refusing them service when conducting your trade or business.
Hobby Lobby, and the debate over the so-called “religious freedom” laws now being exploited by the political right as a device to legalize discrimination against gay people, have muddled this historically-recognized distinction between personal freedom and regulation of commerce. The basic concept that you can think and say what you please, but government has a proper role in refereeing how members of society treat each other, is being expediently cast aside by people who are seeking a license to mistreat others.
This is the distinction that matters. Westboro Church members can have their say, on an equal footing with everyone else, by waving their signs. But society doesn’t have to allow them to physically push and shove people they don’t like. The Supreme Court ruled that Nazis can parade in Skokie (the U.S. community with the highest concentration of Holocaust survivors), but hasn’t forced a Holocaust survivor to print swastika placards. There’s a difference between printing a swastika placard and baking a wedding cake that is crucial to how we distinguish between acceptable and unacceptable discrimination.
We should elect leaders with the intellect, education, background, and judgment to make these kinds of distinctions correctly. A president, who has ultimate responsibility for war and peace, may be called on to distinguish between real and imagined threats — a test that George W. Bush failed miserably. (The fact we have the right to choose our leaders doesn’t guarantee we’ll choose them wisely — that’s where our responsibility as citizens comes in.) Rick Santorum doesn’t look like the kind of leader who possesses the sound judgment we truly need.
Looking back on our history, no American political leader ever faced a harder decision than this one: Should he preserve the Union at the cost of a bloody civil war, or let the rebellious states secede and go on their way? A close second was: Should he attack the Russian missile installations in Cuba to remove a clear and present military threat, or hold off on military action and try to negotiate a diplomatic resolution to the confrontation?
Both of those decisions were history-shaping. Both of those presidents were guessing, to some extent, when they answered those questions; but they also drew upon their personal resources of clear vision and sound judgment in making those decisions. History has vindicated them; a divided America probably couldn’t have become an industrial superpower, won two world wars, and defeated Soviet communism. We now know the Cuban missile crisis was dangerous beyond anything the world realized at the time, and a U.S. military attack on Cuba likely would have triggered a nuclear war. Perhaps those presidents, to some extent, were extraordinarily lucky. But the favorable outcomes of those crises weren’t sheer luck, either. Those leaders made the right decisions in no small part because they knew right from wrong.
Most people intuitively realize that unless we protect everyone’s rights, no one’s rights are safe. Therefore we allow the Nazis to march and Westboro Church to demonstrate, even though their messages repulse us. Yet we don’t allow an energy drink company to make false health claims about its products, and don’t see that as inconsistent. A commercial printer shouldn’t be required to make swastika placards for the same reason DuPont shouldn’t be required to sell explosives to the Ku Klux Klan. A baker should be required to sell a wedding cake to a gay couple for the same reason Memories Pizza in Walkerton, Indiana, shouldn’t be allowed to refuse to sell a pizza to a black customer.
People capable of cognitive reasoning recognize that a wedding cake and a “God hates fags” sign are two different things, with different impacts on society, and society is entitled to treat them differently. We should hold Rick Santorum’s right to his religious beliefs as sacrosanct; and at the same time, we should regard his inclination to discriminate against gay people as contemptible. Above all, we should consider him unfit to lead our country, whose founding and governing principles rebuke the very notion of discriminating against people because of who they are. Santorum is utterly mistaken that there is any support whatsoever in the Constitution or its principles for his twisted interpretation of “religious freedom.”