When I taught high school English, I used to give my students a "common sense quiz" at the beginning of every school year, to gauge their general approach to school and determine which ones might have personality disorders that could hinder their ability to succeed. One of the questions went something like this:

You are late to class if

a. you arrive after the late bell, without a good excuse.
b. you arrive after the late bell, at least five minutes into the period.
c. you arrive after the late bell, on purpose.
d. you arrive after the late bell.

The correct answer, obviously, is (d), although as I've worded it here "all of the above" would also be technically correct. However, a lot of students answered either (a) or (c). To their teenaged minds, you are only "late" if you're somehow at fault for being late; if you have a good excuse, have permission, or can't help it, then you are not, in fact, late. But you are, in fact, late. The condition of being "late" implies nothing more or less than arrival after a designated point in time. The condition of being blameworthy is separate, distinct and unrelated to the condition of being, objectively, late.

The responses are understandable, to a degree; schoolkids associate tardiness with discipline, in the sense that it's something they can be punished for, so the word "late" takes on a connotation in that context that it otherwise does not have, a connotation of blameworthiness that adolescents try very hard to avoid. What happens as a result is that the contrapositive, i.e., you are not late if you are not blameworthy, takes hold, and the meaning of the the word "late," and the fact of the actual conduct, is lost. More broadly, the idea is that even if I did in fact commit the act, but I had a good reason or it wasn't my fault, then in fact I did not commit the act in the first instance.

The more I think about these bills popping up in Kansas, Arizona and elsewhere that would enable discrimination by commercial actors on the basis of those actors' purported "religious freedom," the more I realize that this is the crux of the disagreement about this issue.

Take this hypothetical: Nathan Lane and RuPaul walk into Ted Nugent's Bridal Boutique and Firearms Emporium. They walk past the Uzis and Glock 9's over to the cake section, where they pick out a tastefully-decorated vanilla-frosted orange marzipan cake with Crème de Menthe and lime zest. They walk up to the register and Nathan says to Ted, "Yes, hello, I'd like to purchase the vanilla-frosted orange marzipan cake with Crème de Menthe and lime zest that's sitting on the shelf over there." Ted says, "I'm sorry; your sexual orientation and associated lifestyle offends me, because of my sincerely-held religious belief that it is sinful and wrong. Moreover, I believe that you intend to purchase the vanilla-frosted orange marzipan cake with Crème de Menthe and lime zest for use in connection with a same-sex marriage ceremony and/or celebration, wheareas such events are also offensive to me and inconsistent with my sincerely-held religious beliefs. Therefore, I will not sell you the vanilla-frosted orange marzipan cake with Crème de Menthe and lime zest, and I ask that you please leave my Bridal Boutique and Firearms Emporium at this time and not return at any time in the future, as your presence on these premises is offensive to, and incompatible with, my sincerely-held religious beliefs. Thank you, and have a pleasant day."

The question is, setting statutory laws aside for the moment, has Ted mistreated Nathan and Ru?

I think most people, even religious people, would agree that "religious freedom," "religious liberty," "religious exercise" and "religious practice" do not include the mistreatment, abuse, harm, or violation of the rights of, other people. At least, not to the extent they are protected by law and by the Constitution. To use the most extreme and obvious example, they don't include killing infidels or burning women at the stake.

The issue, then, is whether what Ted did to Nathan and Ru constitutes mistreatment, abuse, harm, or a violation of their rights. Whether it is excused, permitted or justified by "religious freedom" or "sincerely-held religious beliefs" is a separate, distinct, and unrelated question.

When you open a business that is a public accommodation, such as a store, restaurant or hotel, you are making an open, unconditional, universal offer to the general public of goods and services for sale. Anyone and everyone is entitled to come in, through your open and unlocked doors, and accept that offer on the same terms as everyone else, by requesting and paying for those goods and services. (This is unlike a private home, or even an office, where one would have to knock, ring the doorbell, make an appointment, &c., in order to get special permission to enter.)

The Civil Rights Act essentially declared that a business person cannot modify or withdraw that open, unconditional, universal offer from one particular customer based on nothing more than some characteristic of that customer by which the business person is subjectively bothered, where he would keep that offer open on the same terms for anyone without that characteristic. To do so is to mistreat that customer, violate his rights, and cause him harm.

That's where the disagreement lies, both in terms of these "religious freedom bills" and discrimination more generally. Supporters of the former would argue that this is not mistreatment, abuse, or a violation of the customer's rights, that no harm occurs, or even perhaps that it is not discrimination. Nathan and Ru are free to go somewhere else to get a tastefully-designed vanilla-frosted orange marzipan cake with Crème de Menthe and lime zest, and if no other place in town has one, well, that's too bad for them, because Ted has a right to "exercise" and "practice" his "beliefs" that trumps Nathan and Ru's right to purchase a tastefully-designed vanilla-frosted orange marzipan cake with Crème de Menthe and lime zest.

Ted would not agree that he has mistreated, abused or harmed Nathan and Ru not because they can go somewhere else, but because he has permission to deny them the purchase of the vanilla-frosted orange marzipan cake with Crème de Menthe and lime zest. Regardless of whether he thinks he was given permission by the law, by the pastor of his church, by his imaginary friend, or by himself, in his mind he can justify what he's doing, he has a "good excuse," therefore he did not actually do any wrong thing. It is not discrimination, it is not mistreatment, it is not abuse, it is not harmful, it is not an offense, it is not a violation of Nathan's and Ru's rights. Just as a high school student is "not late" to class, even though she walked in ten minutes after the bell, because she "has a good excuse," "has permission," or it's "not her fault."

As I stated in a previous diary, I think anyone in Nathan and Ru's shoes would regard this as mistreatment; anyone who wouldn't has probably never been, and knows (s)he never would be, in Nathan and Ru's shoes.

The only way to win this argument is to focus on the fact that "religious freedom" is being invoked, wrongly in my view, as a good reason, a "good excuse," or permission for what must be considered discrimination, mistreatment, abuse, harm, and a violation of other people's rights. More specifically, that it is mistreatment, abuse, harm and a violation of others' rights to treat them the way Ted treated Nathan and Ru, regardless of whether you think you have a good excuse, a good reason, or permission to do it.

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