Why David Brooks Is Wrong About Discrimination and Indiana’s RFRA

Let me get straight to the point – David Brooks’ column this week encouraging gay and transgender people to simply accept discrimination for as long as it takes for society to come around was more than misguided. It undercuts core American values of fairness and equality and advances the idea that’s it is acceptable to treat some people like second-class citizens because of who they are.

If David Brooks really thinks it’s smart for gay and transgender people to accept discrimination until “gentle persuasion” convinces people that it’s not, I have to ask: Would he have been so bold to make such proclamations in other moments of history when religion was invoked to justify various forms of discrimination?

For instance, something that seems unfathomable to us today but occurred not too long ago: Would he have argued that the barbeque franchise owner who believed mixing races violated his understanding of the Bible should have been allowed to tell African-Americans they weren’t welcome to a seat?

Or that the school run by folks who believed as a matter of faith that the role of men is to be the head of households should be allowed to pay women less money?

Or to use examples from the moment: That schools should be able to fire women teachers for using IVF or hospital staff should be able to fail to tell women miscarrying that ending the pregnancy is the safest medical option?

Or what about a school counselor who doesn’t agree with the “homosexual lifestyle”? Should she be allowed to turn away a gay or transgender youth considering suicide as long as she does it with “respectful politeness”?

In these cases, should the law say it’s okay to deny services, employment, or information – and really fair treatment – until society comes around?

Because whether actively or through ignorance, that is certainly what he has argued.

Undergirding Brooks’ argument is a dangerous concept: That the only possible harm in these scenarios is to religious belief, not to those turned away. That’s simply not true. The sit-in at the Woolworth’s counter wasn’t about wanting a hamburger. It was about fairness and equality.

We’ve made a decision as a country that religious freedom matters. But so does the dignity of others.

Brooks has twisted the idea of religious freedom. Based on his argument, what would stop a business from hanging up a big, flashing sign that says they don’t serve gay people? Brooks’ argument asserts that gay and transgender people should allow that because “religious tolerance” and “[d]eep politeness means we make accommodations” for those who aren’t ready to stop discriminating.

One has to ask, do we really want to value “deep politeness” over equality?

Brooks is right about one thing – religious freedom is a deeply important value that’s woven into the fabric of this country. And it must be protected. But what Brooks, and many others who would use religion to justify discrimination and harm, fails to recognize is that religious freedom gives us all a right to our beliefs. But that right, like all others, has limits. And those limits stop when acting on our belief hurts someone else.

Religious liberty couldn’t be used in the ’60s to turn away people of color. And we shouldn’t tolerate its use today to let businesses turn away lesbian and gay couples seeking to celebrate a relationship or to allow religiously associated nonprofits or businesses to treat women like they’re less than men by denying contraceptive coverage, equal pay, or health care coverage.

To put it simply, the promise of equality is not real or robust if it has exceptions. There’s nothing polite about having the door slammed in our face because of who you are.  

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As a transgender woman of colour, I take exception to Mr. Brooks' view that we should have to accept religious discrimination from anyone, simply because they feel that their religion gives them license to be a bigot. NO. And not just no, but hell no, nobody has the right to hide behind the draping of the flag and use a bible as a mask to deny me or anyone like me the right to be who I am, just because that person thinks their religion says they can.


I doubt this will be read or perhaps laughed off, but the irony is striking here at the ACLU right now. I remember a group that stood with Nazi's on principle.

This argument is bad for one major reason--there are tons of exclusions that deny the majority things to day justified on beliefs of how best to remedy inequality. We may have valid historical reasons for accepting this discrimination that this is a non-harm, but your colorblind article most certainly extends to the beliefs on how to remedy such problems.

On liberal princple, if the state is to treat its citizens with fairness and equal concern, both the LBGT and religious people should have strict scrutiny protections. But there should not be carved-in exceptions to religious liberties made by legislatures on specific grounds. It imposes rational basis on people's beliefs and prevents a religious believer to be misheard by the state.

Brooks may have been wrong about "gentle-persuasion" and all his metaphysical nonsense, but to act as if a court should not weigh the valid interests of a religious belief denies free exercise--Ollie had his day in court. And yes, I know what Smith says, but it is wrongly decided.


Essentially this is what the gay agenda want. They would love to silence the Christian voice in america. It is obvious that they blame Christians for their self loathe, suicide, depression, and the way they are viewed by society. So they believe if we would, shut-up-as a society-and give them the green light, that it would make them feel better about who they are, but it is obvious that it is not Christians fault, but their own choice. if i choose to fornicate it is not the fault of the media, pornography industry, songs i listen to, my upbringing, or anything else, it is simply my choice. I pray for God's mercy and grace over their life and mine, in Jesus name, Amen.


If the ACLU actually believes this, why didn't the ACLU stand up for the California students who wanted to do nothing more than wear a shirt with the American flag on it? Was that too heterosexual for the ACLU? It's OK to discriminate against moderately patriotic students?


The American Civil Liberties Union often times promotes the invasion of America by foreign, illegal aliens, but when actual American students are having their civil liberties violated... the ACLU is SILENT?

ChloeAlexa Min...

Louise Melling, David Brooks is an Ignorant spokes person who is totally uneducated about LGBTQI People, and YES WE ARE PEOPLE. Im a T part of the acronym and second class at times could be a step up as we are treated. In this more enlightened age maybe his 'Wait and see attitude' could be tested. All business that want religious protection (from Lawsuits) simply Post large and Very Visible signs at all entrances to their Businesses stating: WE ARE A BIGOT BUSINESS. This will have the courtesy of letting all know their thoughts of others.

ChloeAlexa Minneapolis.

Buz Lawson, Hou...

I've said it before, and it bears repeating:

If you want to open a business with the intent of only doing business with people who share your beliefs, set up a booth in the basement or social hall of your church. "Open to the public" means "open to the public."


You lost me in the closing paragraph.... men's contraception isn't covered on any health plan that I am aware of. Not yet, anyway.

Cas V.

Given that it is apparently legal for businesses to discriminate against the gay community in certain areas of the US (but not in others), I almost think it would be better if businesses opposed to serving gay clientele would broadcast it openly in those areas where such discrimination is still legal, so I could avoid accidentally patronizing these businesses. I also think it would be less hurtful for a same-sex couple planning a wedding to know, in advance, where they will not be welcome before they bother with making a good-faith inquiry. And a lot of hetero couples would like to know this information too, not just because it discriminatory, but it is also a potential red flag for poor business ethics and practices in other arenas.

I'm in the process of compiling a list of businesses documented to have refused services. I suspect a lot of people are also doing this.

Adam Michels

I think perhaps you are misrepresenting Brooks' position. He clearly states in his article, "Certain basic truths are inalienable. Discrimination is always wrong. In cases of actual bigotry, the hammer comes down." I think he makes a distinction that you do not. He believes it is illegal to deny gays service, but your photo suggests otherwise. He (and many others) believe it is another matter to require a business to cater a gay wedding if it violated their religious beliefs. (Please see a thoughtful discussion of this distinction in the Atlantic: http://www.theatlantic.com/politics/archive/2015/04/should-businesses-that-quietly-oppose-gay-marriage-be-destroyed/389489/)

Here is a personal example: My Rabbi performs a service for money: wedding ceremonies. However, he refused to perform my wedding, because I was marrying a non-Jew. My wife was not born Jewish and she was not interested in converting. Should the law compel him to perform the service? Of course not. Unless there is no reasonable alternative the government should not compel him to act against his own religious beliefs. I can go to many other people to get my marriage service performed.

A local Pizza shop owner is a fundamentalist Christian, who does not believe in same sex marriages. Should he serve gay patrons in his shop? of course. Should the govt. compel him to cater a same sex wedding? I don't think so. There are many other businesses who would be willing to cater the wedding.


At some point, you need to be an adult. You need to look at the fundies and say "That's very childish of you, I'm going to be an adult somewhere else." Besides, it keeps you out of the moral quandary of forcing your beliefs on others so that they can't force their beliefs on others.


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