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The fraudulent conservative argument against gay marriage

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Conservatives are up in arms after the Supreme Court effectively decided that businesses have no right to deny service to gays and lesbians under the guise of “religious freedom.” In other words, if a gay couple wants you to bake them a wedding cake or take photographs of their wedding, it has been deemed unreasonable to deny them your business just because your “religious beliefs” compel you to oppose gay marriage.

This brings us to the fraudulent conservative argument. To cut straight to the chase, conservatives think it’s okay for any business in this country to deny service to gay couples on the grounds of religious freedom, but they emphatically do not think it’s okay to deny service to interracial couples on the exact same grounds. Conservatives enthusiastically support the “religious freedom” of businesses to exclude gay couples, but they do not believe any business has the religious freedom to exclude interracial couples.

Liberals have already called out this jarring contradiction. Indeed, legal experts have recognized for years now that the arguments against gay marriage are the exact same in structure as the arguments of the 1960s against interracial marriage. But it’s even worse than that. Conservatives argue with a straight face that businesses have the right to exclude customers for whatever reason:

The most robust of all property rights is the right to exclude, which enables an owner to choose which friends, collaborators, and potential collaborators to include in the use of land and other resources.

Owners are not required to explain why they include some and exclude others. Private property enables them to pursue plans of action that outsiders might view as arbitrary or worthless.

But in the same breath, they argue that if the reason for exclusion is deemed “unreasonable” by popular consensus, then the government – specifically the “activist Supreme Court” – has the “right” and “duty” to ban businesses from excluding people on those “unreasonable” grounds:

If a property owner opens his or her domain to the public as a bakery, for example, the owner does not thereby relinquish her right to exclude. Rather, the common law requires the landowner to have a reason for excluding. To be more precise, the owner must not exclude for no reason.

Exclusion on the basis of race is always unreasonable, and therefore unlawful. These laws pick out motivations for exclusion that are never valid reasons. This wasn’t really a change in the law—it was never reasonable to discriminate on the basis of race—but rather a conclusive statement of what the law requires.

So, owners of public accommodations have remained free to exclude as long as they have a reason (or, as long as they do not exclude for no valid reason).

Let’s get one thing clear: From 1776 until the 1960s, the consensus in America was that it was morally acceptable, and therefore legal, to exclude customers on the basis of race. Therefore, to make the blanket assertion that race-based exclusion is “obviously wrong” is to unreasonably assume that the popular consensus of 2014 is the morally right position for judging these matters.

As a result, conservatives must resort to fundamentally liberal arguments to explain why race-based exclusion is immoral (i.e., they must appeal to “equality”). Case in point: Ryan T. Anderson of the Heritage Foundation:

“(A)nti-miscegenation laws were part of a much larger regime that denied human equality in order to hold a race of people in a condition of economic and political inferiority and servitude. They had nothing to do with the nature of marriage.”

This paragraph reads no different if you replace “anti-miscegenation” with “anti-gay” and “race” with “gender.” Bans on gay marriage unequivocally deny the public benefits of marriage to two men who want to marry each other or two women who want to marry each other. But don’t worry, Anderson has an answer for that:

Some supporters of redefinition make the following analogy: Laws defining marriage as a union of a man and a woman are unjust—that is, they fail to treat people equally—just like laws that prevented interracial marriage. Yet such appeals beg the question of what is essential to marriage. They assume exactly what is in dispute: that gender is as irrelevant as race in marriage.

Race has nothing to do with marriage, and laws that kept the races apart were wrong. Marriage has everything to do with uniting the two halves of humanity—men and women, as husbands and wives and as mothers and fathers—so that any children that their union produces will be united by the man and woman who gave them life. This is why principle-based policy has defined marriage as the union of one man and one woman.

Here’s the million dollar question for Anderson and for every other “conservative” that opposes gay marriage on those grounds: If marriage is okay as long as it’s between an adult man and an adult woman, than on what moral basis do they oppose two cousins from marrying each other? Or a brother and sister? Mother and son? Father and daughter? Anderson’s own argument near the end of his asinine report destroys any moral objections:

Americans ought to be able to run their businesses in accord with their own values even if most of us disagree with those values. That is the thing about living in a free society: A person can respect the freedom of other people even when he or she disagrees with how they are using their freedom.

By arguing that mutual consent between an adult man and an adult woman is all that’s required, conservatives have boxed themselves into a corner where their own arguments can be used to support incest. Hence the moral bankruptcy of defining marriage the way they define it. And as long as they take the “free society” position outlined above by Anderson, they’ve got no means of crawling out of this conundrum.

Of course, that wouldn’t stop them from arguing that incest is “obviously wrong” because it’s “icky” and “gross” and produces “defective offspring,” which means that the government has a “public interest” in banning incest just like they have a “public interest” in banning gay marriage. But therein lies the trap: The opponents of interracial marriage said the exact same thing!

And just like the opponents of gay marriage today, the opponents of interracial marriage had all their scientific and psychological research to back themselves up. The narrative is the same with gay marriage, only instead of the need for same race parents, there’s the “need” for heterosexual parents. Same argument, different context.

Bottom line: It is morally and legally impossible to support interracial marriage but oppose gay marriage. Either business owners must be forced to serve both interracial couples and gay couples, or they must have the right to deny service to both. There’s no in between. The conservative arguments against gay marriage are fraudulent precisely because they vociferously refuse to defend marriage as anything other than a contract between an individual man and an individual woman.

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