Miscegenation Laws and Wedding Cakes

Ross DouthatGod’s older brother, Ross Douthat, was at The New York Times last week to explain why it is that laws against same sex marriage aren’t the same as miscegenation laws of the past. And the reason is, “This isn’t a structural system of oppression, a society-wide conspiracy like Jim Crow; we’re talking about a handful of shops across the country.” As you may be aware, Douthat has given up the culture war and just wants to be allowed to sit in his room praying and cursing the godless sinners who will burn in hell. Oh wait! He already has that right. He wants to be able to talk about this stuff in public and still get invited to Ezra Klein’s parties.

But I have to say, I really don’t understand Douthat’s reasoning here. He’s saying that discrimination should be allowed because not that many people would actually discriminate. Since the question is no longer whether same sex couples should be able to marry but rather whether bigot bakers should be able to refuse to put two male figures on the top of a wedding cake, the state has no right to interfere. But let’s suppose that a same sex couple lives in a small town where there is only one baker and she hates her some homos. To this couple, it doesn’t matter that there are thousands of bakers elsewhere who have no problem with same sex marriage.

Let’s think back to the miscegenation laws. It didn’t matter in 1966 that a mixed race couple in Mississippi could marry in New York. In fact, in 1966, mixed racial couples could marry in 33 states. By Douthat’s logic, Loving v Virginia — that case that found miscegenation laws unconstitutional — was not necessary. What’s more, we could get rid of the public accommodations clause in the Civil Rights Act of 1964, since at this point there wouldn’t be that many hotels that would discriminate.

But is this all just about a “handful of shops across the country”? Is it really true that this isn’t part of a “society-wide conspiracy like Jim Crow”? Well, it is certainly the case that the states that are now doing everything they can to oppress the LGBT community are the same ones that were enforcing miscegenation laws. Check out the interactive map of miscegenation laws. Through 1964, Indiana still enforced these laws. And the entire south enforced them until Loving in 1967. What’s more, members of the LGBT community are murdered at an alarming rate. In 2011, 30 were murdered. Being gay is not just a matter of being refused wedding cakes.

Jim Naureckas at FAIR provided a good overview of LGBT oppression in this country, A Non-Conspiracy of Douthat’s. To Douthat’s contention that there is not a “structural system of oppression,” he responded:

In 29 states, it is legal to fire, refuse to promote or harass someone on the job because of their sexual orientation. The same states allow landlords to refuse to rent to gay or lesbian tenants.

Fourteen states still have amendments in effect in their constitutions that deny their citizens the basic civil right of marriage on the basis of orientation.

Douthat is a smart guy. But reading him over the past couple of years has been very much like reading racist apologists from the 1960s. It starts with claims that the common good is to deprive rights. Then it shifts to claims that it is all just a matter of opinion and sincere people should be allowed to differ. I don’t think that Douthat will ever evolve past this point. As with the bigots of the past, he will just be passed by. But he’ll never lose his post at The New York Times because there aren’t many social conservatives who can communicate in full sentences.

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About Frank Moraes

Frank Moraes is a freelance writer and editor online and in print. He is educated as a scientist with a PhD in Atmospheric Physics. He has worked in climate science, remote sensing, throughout the computer industry, and as a college physics instructor. Find out more at About Frank Moraes.

2 thoughts on “Miscegenation Laws and Wedding Cakes

  1. “Loving” is the best-named Supreme Court case ever!

    Of course that baker (caterer, country club, ballroom, whatever) already has a perfectly acceptable manner in which to express their disapproval of same-sex marriage — stop serving weddings, period. Nor does any law bar them from taking out an ad saying they will no longer serve weddings because their religious views are offended, asking others who share these views to support their remaining business ventures.

    But that would lose them money. This is the most cowardly sort of “religious principle.” It’s like those pharmacists who want to keep making money marking up drugs but don’t want to sell birth control.

    These laws are all going to get tossed eventually, anyway. They’re probably passed with that in mind, so conservatives can scream “government shoving values down our throats” again. It seems half the laws passed/proposed by conservatives are of this token phony nature, and the other half, the serious half, passed more-or-less on the sly.

    • It seems to me that Oklahoma was discussing getting rid of marriage altogether if they had to allow same sex marriage. It’s all very small minded.

      The thing with bakers and what not is that it is all a made up issue. It is literally semantics. I could request a wedding cake with two grooms on it for a demonstration at a sociology talk I was giving. What a customer is using a cake for is really none of the vendor’s business.

      Look at that pizza place that got a million dollars of donations for saying that they would never do what they don’t do. They said they wouldn’t cater a same sex wedding, but they’ve never catered any wedding at all. The fact that money was thrown at them is indicative that this is all about bigotry and in-group / out-group politics. It has nothing to do with religion. As that obscure Iron Age philosopher once said, “To the extent that you did not do it to one of the least of these, you did not do it to Me.” They’re all a bunch of God damned heretics.

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