These days my thoughts are focused on a particular fallacy, "poisoning the well," and a particular instance of it, the accusation that the exercise of conscientious objection to participating in same sex marriages constitutes the latter day revival of "Jim Crow." An argument "poisons the well" if it serves to prevent its refutation by instilling an unavoidable distrust in the one who would provide the refutation. In the Dobey Gillis episode, the example offered is of a debater who rises and begins by charging that his opponent is, and always has been, a liar. Such a charge risks the ability of the reasoning mind to even entertain what the opponent might place before it.
It has the identical effect. Who, after all, wants to be seen to be a racist? For that matter, who wants to be seen with a racist?
In my lifetime, laws that treated others differently based on race were invalidated as the Supreme Court came, more and more, to understand the color-blindness of the Constitution. Had the Court, in Plessy v. Ferguson, followed Justice Harlan, and then recognized that colorblindness, it would have rejected "separate but equal" schools, and other statutory racial classifications. Unfortunately, it took nearly three quarters of a century for the majority of the Court to catch up with Harlan.
"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are
citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
Thus, every black man, every black woman, every black child, every black baby BORN in the USA, born in the States of the Confederacy, born in the Border States, born in the Free States, every single one of them were immediately conferred with two legal statuses: national citizen and state citizen. As you can see from its text, the Fourteenth Amendment did more than that too. The Amendment debarred States from violating the "privileges and immunities" of US citizens, from depriving persons of life, liberty or property without due process of law, and from denying equal protection of the laws to any person.
Yet, Democrats in southern, "reconstructed" States began inflicting an additional 100 years war against racial equality despite the Fourteenth Amendment.
How did they carry out this war?
By enacting laws that legally required segregation of white and blacks in all, or virtually all, aspects of public life. Separate accommodations, separate schools, separate neighborhoods. These effects were directly imposed by statutes. This was GOVERNMENT imposed, GOVERNMENT enforced discrimination.
And, so as not to lose track of that important distinction, that is what JIM CROW LAWS were. They were the laws that IGNORED the FOURTEENTH AMENDMENT'S EQUALITY COMMAND and gave GOVERNMENT imprimatur to the concept, summarized in Plessy v. Ferguson, of "separate but equal."
What JIM CROW wasn't, however, is just as important as what it was.
Jim Crow was not the private choices of millions to prefer the company of others like themselves. Such choices might reflect an ugly heart, a prejudice based irrationally on skin tones. But such private discrimination never was within the reach of the prohibitions and mandates of the Fourteenth Amendment. So, although Jim Crow laws -- as the Supreme Court finally came to understand -- violated the guarantees of the Fourteenth Amendment, private discrimination never has and never did.
Why does this matter today?
Because today, if you search "Jim Crow" on news services of Bing, Google, or Yahoo, you will discover that many of the results are related to the question whether small businesses that refuse to participate in same sex wedding services are the "new Jim Crow."
That's right, despite the complete dissimilarity between private conscientious choice about providing support to the celebration of a same sex marriage and government mandates to segregate races, the statists and social fascists are afoot.
This isn't my first rodeo, cowboys.
From 1989 through 1993, I fought against a similar rhetorical attack that sought to
align persons of conscience today with racists of the past. Then, radical pro-abortionists responded to the peaceful, nonviolent actions of Operation Rescue by filing lawsuits under the "Ku Klux Klan Act of 1871." Imagine the kultur kampf had pro-abortionists succeeded in pinning the KKK moniker on pro-life demonstrators! Thankfully, the hard work and diligent research and writing that I, and others, lent to the battle resulted in the Supreme Court rejecting the application of the Ku Klux Klan Act to anti-abortion protests.
Still, there's nothing quite like skipping the engagement, nothing like not being put to the intellectual challenge of having your arguments sifted and measured by a reasoning mind, and nothing like going straight for the throat with a karate chop that stuns and blocks the windpipe. And that is precisely what is behind the effort to portray opposition to participation in same sex wedding ceremonies as the new "Jim Crow." Those who stridently charge that conscientious objection to participating in same sex wedding is the one and the same as the kind of brutal, dehumanizing discrimination and segregation of Jim Crow do so in what they hope will be a successful form of verbal martial arts.
So, it's important to understand the differences between conscientious objection by private citizens to engaging in conduct that violates their religious scruples and government coerced and directed segregation and discrimination. Having a full grasp of these points is an essential part of answering the questions that are popping faster than Orville's corn kernels in my microwave on the newest high contention issue of the 21st century.
Jim Crow Laws were precisely that: laws. Whether state laws, such as anti-miscegenation laws prohibiting racial intermarriage, or whether state laws like in Plessy requiring that transportation systems provide racially separated travel accommodations, or whether local ordinances requiring that parks and recreational facilities be racially separated. The dispute today is not over laws compelling segregation or discriminatory treatment. No one is being compelled by statute to separate Gays and Straights into separate accommodations. That is just not happening.
Here is what is happening.
As individuals begin to take advantage of this new-found right to "marriage equality," those individuals are, in fact, getting married. Some, of course, have quite publicly gotten married at courthouses and justices of the peace as soon as the right sprung. Others, however, more traditional of mind, are planning weddings. For them, unsurprisingly, the assistance of wedding services providers may be desired.
Wedding services providers include wedding planners, dress designers, printers, bakers, caterers, venue providers, and wedding performers including officiants, musicians, and DJs for receptions. As gay men and lesbian women seek out wedding services providers, they find some that gladly partner with them in creating a memorable wedding day and others that decline doing so. It appears that those declining to do so fall into a couple categories.
Of course, some service providers are overbooked and unavailable. No ground of complaint or controversy there. After all, if you arrive at Olive Garden or whatever you favorite eatery might be, and find you are facing a sixty minute wait, you might opt for a different provider. But controversy is arising in other cases, where wedding service providers decline to participate in the planning and execution of celebrations of same sex marriages based on religious scruples regarding marriage.
Among that smaller group, some of the refusals probably do not result in any further kerfuffle. That may be because the same sex celebrants take the refusal with a decent toleration for the sensibilities of others. Or, it may be that the service refusal occurs in a jurisdiction that does not treat religiously-based service refusals as a form of prohibited discrimination.
But, there is that smaller portion of total instances that comes to the public's attention. Disputes over refusals to make wedding cakes, provide floral arrangements, cater pizza receptions are being reported. (The Queer Eye for the Straight Guy really twitches every time it contemplates a pizza-based wedding reception -- unless the wedding toast is being done with a light pilsner.) Already there a small handful of administrative and judicial decisions has been generated arising from complaints that such service denials violate human rights codes or civil rights statutes.
Now the public conversation about these cases tells an ugly story.
More and more frequently, it appears that a kind of brutal and intolerant scheme is afoot. By that scheme, it is pretended that a view of marriage -- whether you share that view or not -- that has held sway for thousands of years, across hundreds of cultures, in dozens of religions, taught by well-regarded voices is, suddenly, a pernicious form of hatred, apparently the verbal equivalent to public lynching of blacks. As I have found myself saying, with algebraically increasing frequency, we are living in strange times.
Mind you, the marriage equality movement may prevail. If it does, that victory could be as soon as the end of June when the Supreme Court traditionally concludes its business by releasing decisions in any cases not yet decided from the current Term of Court. The same sex marriage cases being argued this week at the Supreme Court have the potential, if the Court reverses the decisions at issue,
If they do, then we can test whether those who prophesy the destruction of society are true prophets or false, simply by observing the progress of our society over time.
Whether they prevail or fail, we are threatened with greater losses.
First and foremost, as the bullies within the marriage equality movement (and that is, by no means, everyone in the movement) seek to arrest discourse by such attacks as the Jim Crow charge, there is a loss to liberty of discourse on matters of great public importance. This nation has always valued liberty of expression. We have sheltered even the expression of false facts from prior restraint, so great our commitment to that liberty has been.
Second, the demand that those that enjoy the natural right to liberty namely to engage in businesses, trades, and professions related to weddings, whether bakers, photographers, musicians, tailors and dressmakers, or the like, surrender their religious liberties as the price of doing so reflects a profound loss and harm. Our Nation was born because the previous governance here oppressed the enjoyment of the natural rights to life, liberty and the pursuit of happiness. The loss of the natural right to liberty embodied in conducting the affairs of one's profession or vocation is then compounded by the unreasoning attack on religious conscience.
I fear that some aspect of these losses will not even be missed. When Americans lose sight of Nature's God as the source of those rights, and concludes that these rights are granted by government, or by the Constitution, then they obtain an artificial spirit of objection to the stern stuff that are those natural rights. Ultimately, I don't have a sense that Americans will rise up in arms if this continues to spiral out of control, but if the statists continue to press for legal suppression of dissent and to punish conscience with economically fatal fines, the time for anger may slide into the time for the exercise of the right and duty to stated in the Declaration of Independence:
That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.