God’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:
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.