Huckabee, Gay People, Finger Food and Logic

Mike Huckabee, former governor of Arkansas, speaks during the Iowa Freedom Summit in Des Moines, Iowa, U.S., on Saturday, Jan
Mike Huckabee, former governor of Arkansas, speaks during the Iowa Freedom Summit in Des Moines, Iowa, U.S., on Saturday, Jan. 24, 2015. The talent show that is a presidential campaign began in earnest Saturday as more than 1,200 Republican activists, who probably will vote in Iowa's caucuses, packed into a historic Des Moines theater to see and hear from a parade of their party's prospective entries. Photographer: Daniel Acker/Bloomberg via Getty Images

Logic and clear thinking are kryptonite to political balderdash.  That’s perhaps the main reason why the world of law sometimes seems so far apart from the world of politics.

Law and the courts -- a realm where marriage equality has largely prevailed -- at least attempt to take the logical reasoning process seriously, and to demand fact-based, coherent justifications for someone’s position, rather than just made-up fluff.

Contrast this with the Sunday network talk shows or CNN, where prominent people are so often allowed to babble nonsense without being challenged, as long as it fits some version of conventional wisdom or just sounds folksy. 

Take Mike Huckabee’s weekend “some-of-my-best-friends-are-gay” appearance on CNN discussing gay people and marriage equality.  Specifically, consider his comment that expecting conservative Christians like him to accept marriage equality “is like asking someone who’s Jewish to start serving bacon-wrapped shrimp in their deli.”

Notwithstanding Huckabee’s authority on the subject of unhealthy finger food … no, it’s actually not like that.  Here’s where logic comes in.

From the context of the interview, it’s not clear 1) whether Huckabee was referring to forcing someone like him as a person to accept gay marriage, or 2) whether he was objecting to laws in some cities and states that prohibit business owners from refusing to serve customers based on their sexual orientation.

Let’s start with number one.  Obviously no one is forcing Huckabee to “evolve” (his word) against his will.  There is civil marriage and religious marriage, and this is all about civil marriage.  No one can or will force his church to celebrate gay weddings.  (Wouldn’t it be nice if Huckabee returned the favor and stopped trying to get our law to impose his sectarian creeds on everyone else?)  As a citizen, preacher, talk show host, or vanity candidate for president, he has a First Amendment right to believe or say whatever he wants about gay marriage, no matter how silly or illogical.

Number two requires a bit more unpacking.  Now that they have all but lost on marriage equality, the issue of the moment for Republican lawmakers and conservative religious groups is the demand for “religious exemptions” for florists, cake bakers, innkeepers, and anyone else who claims it would burden their religious beliefs to have to sell their services on equal terms to same-sex couples celebrating their weddings.  Laws forbidding discrimination on the basis of sexual orientation exist in fewer than half the states, and the list hasn’t been added to since 2009.  But as absurd as Huckabee’s comparison is between gay marriage and appetizers, let’s think it through logically.

Twenty-one states have chosen to democratically enact laws forbidding discrimination on the basis of sexual orientation, but no state has enacted laws forcing Jewish delis to serve bacon-wrapped shrimp.  Is there is a reason?

Yes.  These 21 states recognized that bigotry, hate, and discrimination against gay people were deeply rooted social problems that ought to be addressed.  On the other hand, a lack of Jewish delis serving bacon-wrapped shrimp pales in comparison as a social or historical pathology.

Let’s dig a little deeper.  Why did these states decide that anti-gay prejudice should be addressed through law?

Because discrimination based on characteristics that have nothing to do with a person’s character or abilities (other traits widely protected in law are race, ethnicity, gender, and religion) are corrosive to civic equality and democratic citizenship.  Again, this is a different problem from Huckabee’s non-sequitur example.  No clear-thinking person believes that the menus of Jewish delis have any significant implications for the health of our social fabric.  

When we tolerate business owners who set themselves up in the public marketplace and then selectively refuse service to certain people (blacks, Jews, gay people, etc.) for no reason other than political, cultural or religious dislike, it makes all of us complicit in a form of social devaluation toward such persons, as law professor Andrew Koppelman has persuasively argued.

By the way, maybe one reason gay people have been historically singled out for discrimination in this way is that certain unevolved people went around comparing them to drinkers and people who use profanity.

Prejudice that is unjustified by a person’s character or abilities is antithetical to the values of human rights, equality and liberty that suffuse American legal traditions.  And so, just as government can legislate against crime or water pollution, it can legislate against acts of injustice and the social pollution of one faction of citizens attempting to denigrate another. Anti-discrimination laws target acts of discrimination in the public marketplace, not the underlying private religious or political beliefs.

To be sure, there are respectable libertarian arguments that government should not regulate such market-sector prejudices at all, for any group, as long as government itself does not denigrate its citizens through discrimination (like refusing to give them marriage licenses).  But that is not the argument Huckabee seems to be making.  I doubt he is willing to renounce laws that forbid discrimination in the marketplace against Christians or Jews.  Most likely, Huckabee simply believes that religious people deserve such laws, but gay people don’t.