Oliver Lee Bateman reflects on the limits of tolerance in the context of the Kansas bill that would legalize discrimination against same-sex couples.
In 1991, “Cowboy” Bill Watts–arguably the toughest man and the shrewdest promoter in the history of professional wrestling–flexed his libertarian bona fides in a remarkably candid (and remarkably offensive) interview in Wade Keller’s Pro Wrestling Torch newsletter:
If you want a business and you put money in, why shouldn’t you be able to discriminate? It’s your business. If free enterprise is going to make or break it, you should be able to discriminate? It should be that, by God, if you’re going to open your doors in America, you can discriminate. Why the fuck not? That’s why I went into business, so that I could discriminate. I mean, really. I mean I want to be able to serve who I want to. It’s my business. It’s my investment … I can’t tell a fag to get the fuck out. I should have the right to not associate with a fag if I don’t want to. I mean, why should I have to hire a fuckin’ fag, if I don’t like fags? Fags discriminate against us, don’t they? Sure they do … Do blacks discriminate against whites? You see what I mean. That’s how stupid we are. But we get all caught up in this bullshit rhetoric, And so, it’s ridiculous what’s happening to our country. Lester Maddox (former Georgia governor and defiant restaurant operator) was right. If I don’t want to sell chicken to blacks I shouldn’t have to. It’s my restaurant. Hell, at least I respect him for his stand.
Watts was here taking umbrage with the Civil Rights Act of 1964, which in its various provisions prohibited discrimination by private employers and in all public and private accommodations whose proprietors were engaged in interstate commerce (i.e., the “commerce clause” hook, a broad Constitutional grant of discretionary power to Congress that appears to have been curtailed somewhat by recent Supreme Court decisions).
Kansas’ 125-member House of Representatives, wishing to stand athwart history in as aggressive a manner as abolitionist John Brown once stood many miles ahead of it, has passed a sweeping measure that, in the interest of keeping Christians safe from same-sex couples, appears to allow discrimination against everyone. HB 2453, which was passed by Republicans and a handful of courageous Democrats, is precisely the kind of bizarre measure that underscores the limits of “tolerance” in a pluralistic society. Representative Charles Macheers explained that the bill would, inter alia, bar gay couples (or polygamous couples, presumably) from suing private businessmen who wished to refuse them services à la the entrepreneur in “Cowboy” Watts’ hypothetical, thereby preventing discrimination against those who wished to discriminate against others:
Discrimination is horrible. It’s hurtful … It has no place in civilized society, and that’s precisely why we’re moving this bill. There have been times throughout history where people have been persecuted for their religious beliefs because they were unpopular. This bill provides a shield of protection for that.
Quite understandably, more progressive-thinking sorts are upset at this abominable measure. But, in the course of espousing such arrant bigotry, Macheers raises a problem worth considering: in a “tolerant” society–a truly “neutral” marketplace, a place of absolute “fairness“–intolerance would have to be tolerated. My right to hate you would be entitled to just as much respect as your right to hate hate. Herbert Marcuse stated the problem rather succinctly in his 1965 essay “Repressive Tolerance”:
Tolerance is extended to policies, conditions, and modes of behavior which should not be tolerated because they are impeding, if not destroying, the chances of creating an existence without fear and misery. This sort of tolerance strengthens the tyranny of the majority against which authentic liberals protested. The political locus of tolerance has changed: while it is more or less quietly and constitutionally withdrawn from the opposition, it is made compulsory behavior with respect to established policies. Tolerance is turned from an active into a passive state, from practice to non-practice: laissez-faire the constituted authorities. It is the people who tolerate the government, which in turn tolerates opposition within the framework determined by the constituted authorities. Tolerance toward that which is radically evil now appears as good because it serves the cohesion of the whole on the road to affluence or more affluence.
Marcuse offered in a 1968 postscript to this essay the following précis for social reform:
Tolerance [should] be restricted with respect to movements of a demonstrably aggressive or destructive character (destructive of the prospects for peace, justice, and freedom for all). Such discrimination would also be applied to movements opposing the extension of social legislation to the poor, weak, disabled. As against the virulent denunciations that such a policy would do away with the sacred liberalistic principle of equality for ‘the other side’, I maintain that there are issues where either there is no ‘other side’ in any more than a formalistic sense, or where ‘the other side’ is demonstrably ‘regressive’ and impedes possible improvement of the human condition. To tolerate propaganda for inhumanity vitiates the goals not only of liberalism but of every progressive political philosophy.
i.e., in a completely bullshit-free world, HB 2453 would face immediate and total condemnation as the sort of dehumanizing nonsense that it actually is, rather than being treated as a serious measure that could conceivably receive votes from seventy ostensibly competent (by the legal definition, anyway) legislators. While the United States is dedicated to the notion of “freedom of choice” (which is all freedom of speech appears to mean, in the consumerist context),that doesn’t mean there aren’t certain things about which an individual is given no legally viable “either/or” option. One can, of course, choose to engage in premeditated, first-degree murder or to drive drunk, but these aren’t socially sanctioned “choices.” Is it “discrimination” against murderers to lock up a murderer? Shouldn’t murdering or drunk driving, ceteris paribus, be held out as reasonable lifestyle choices or expressions of personality? Søren Kierkegaard, discussing the “either/or” choice for God, arrives at such a conclusion: there is free choice, but it is only to choose God.
All of that being written by way of prelude, I think it’s worth examining the text of HB 2453:
Notwithstanding any other provision of law, no individual or religious entity shall be required by any governmental entity to do any of the following, if it would be contrary to the sincerely held religious
beliefs of the individual or religious entity regarding sex or gender:
(a) Provide any services, accommodations, advantages, facilities, goods, or privileges; provide counseling, adoption, foster care and other social services; or provide employment or employment benefits, related to,
or related to the celebration of, any marriage, domestic partnership, civil union or similar arrangement;
(b) solemnize any marriage, domestic partnership, civil union or similar arrangement; or
(c) treat any marriage, domestic partnership, civil union or similar arrangement as valid.
Sec. 2. (a) Notwithstanding any other provision of law, no refusal by an individual or religious entity to engage in any activity described in section 1, and amendments thereto, shall result in:
(1) A civil claim or cause of action under state or local law based upon such refusal; or
(2) an action by any governmental entity to penalize, withhold benefits from, discriminate against or otherwise disadvantage any protected individual or religious entity, under any state or local law.
(b) Any individual or religious entity named in or subject to a civil action, an administrative action or any action by a governmental entity may immediately assert the protections provided by section 1, and amendments thereto, or this section, as a defense by moving to dismiss such action.
Both defenders and opponents of the bill have noted how its neutral language could justify discrimination against any married couple, heterosexual or homosexual. In the real world–which is, alas, the world we inhabit–this is a terrible and harmful measure. But in a purely theoretical world, I support this measure. I would quite willingly and gleefully discriminate against all state-sanctioned couples, same or heterosex. In fact, I don’t think it goes far enough: it should completely remove the state from any role at all in sanctioning or approving intimate relationships of any type or number. Our limited-free market/corporate welfare society makes “contractual marriage” a precondition to many services, such as the receipt of insurance benefits or old-age pensions, that the state itself, by pooling the collective revenues of all citizens, should pay out to individuals. Thus, the expansion of marriage to individuals of the same sex is simply a sop–a chance to participate in the same “market” for these goods and services as others.
One of the things that has been lost with the gradual dulling and diminishing of the original movement for Gay Liberation is the notion that relationships as we now understand them should be reconceptualized. The Good Men Project and other publications continue to give voice to individuals who wish to engage in radically non-normative relationships–indeed, the Internet is a great gathering-point for all of these types of intimate expression–but most of us are happy to set aside bolder, more idealistic claims in favor of narrow, hardscrabble victories. The Missouri football player Michael Sam earned (and deserved) plaudits for discussing his sexual orientation with The New York Times, but it was also somewhat strange that he went out of his way to note that it “doesn’t define him.” Is it really so wrong that such a monumental confession should come to define a person? “Oh, it’s okay, I just want what everybody else has–let me be, would you? I promise I won’t bother you, much less force my viewpoint or lifestyle on you.” What does such a statement even mean?
What careful study of HB 2453 reminded me is that, even as incremental progress toward genuinely meaningful intimate relationships among all people everywhere continues to be made, we must never lose sight of the goal of total social openness that motivated Russian intellectual Alexandra Kollontai to write:
In place of the individual and egoistic family, a great universal family of workers will develop, in which all the workers, men and women, will above all be comrades. This is what relations between and women in the communist society will be like. These new relations will ensure for humanity all the joys of a love unknown in the commercial society of capitalism, a love that is free and based on the true social equality of happy young people, free in the their feelings and affections (emphasis mine).
If my intolerance of others who don’t support such an ideal brings me into conflict with equally principled opponents, then, in the words of the Catholic legal philosopher Richard Stith, “not fairness but a struggle for power is required by morality and by mutual respect…[which is] a kind of tragedy…[but] a tragedy that, like the battle of two epic heroes, ennobles rather than demeans the human race.” So it goes.