In recent years, there has been much discussion on how private companies should not be allowed to refuse services to same-sex weddings. Or, in states like Oklahoma, there have been attempts to make a refusal of service explicitly legal. Both attempts are misguided, but the side in favor of banning discrimination is more so.
Let me say at the outset that there’s a distinction between government and private entities. I agree entirely that the government should not engage in any sort of discrimination based on sexual orientation whatsoever.
While I don’t agree with the Supreme Court’s reasoning in stating that the Constitution, or specifically an amendment adopted in 1868, requires states to have same-sex marriage, I do think same-sex marriage makes sense from a legal perspective. If I were a legislator, I would vote for it. Also, all levels of government should most certainly have non-discrimination policies regarding personnel. That policy should also be extended to government contractors.
However, there are many people, particularly on the left, who want discrimination against same-sex weddings to be banned for private parties as well. Part of this is a disagreement of values, but certain errors are also made with regularity.
The first error is to be shocked that discrimination on the basis of sexual orientation is legal or to be infuriated when conservative lawmakers propose legislation that would “make it legal.”
The reality is that virtually no action is illegal until the government makes it so. In Oklahoma, discrimination on the basis of sexual orientation has never been banned at the state level. That also holds true for several other states and at the federal level.
To say that a law would “allow discrimination” is nonsense. In almost all cases where such laws have been proposed, discrimination is already de facto allowed.
It is for this same reason that enacting laws to allow for this sort of discrimination is misguided. It’s legally superfluous and makes it look as though social conservatives are trying to change things, when in fact progressives are the ones proposing substantive changes to the way the law treats discrimination.
Another error, related to the first, is the assumption that current anti-discrimination laws extend farther than they do. Under federal law and the laws of several states, race, religion, national origin, etc. are all protected classes. Discrimination on the basis of any of those is almost always illegal.
However, there is no general entitlement to receive service, and discrimination on another basis is generally legal. For instance, everyone is familiar with the “no shirt, no shoes, no service” rule.
Just being based on religion isn’t enough to say that discrimination is currently illegal.
If a Hindu had a policy of only serving those who do not consume beef, so long as that isn’t a way to turn away non-Hindus, the policy would presumably be legal. As long as (non-Hindu) vegetarians are still being served, he could still defend himself.
Of course, that policy would still come under scrutiny, so I wouldn’t recommend it from a legal perspective, even if he might win.
A third error is equating refusal to service a same-sex wedding as refusal to service someone on the basis of sexual orientation. Many religious business owners believe that by providing services for a same-sex wedding, they are involving themselves in that ceremony.
Perhaps the government enacts a ban on the above Hindu from turning away consumers of beef. That still would not be analogous to banning discrimination in regards to same-sex weddings.
A more apt analogy would be a law requiring a Hindu to provide services for a hamburger party. Those in favor of banning discrimination in regard to servicing same-sex weddings often argue that religious business owners shouldn’t object since they aren’t really taking part in the wedding.
Based on that reasoning, so long as a Hindu isn’t actually required to eat any hamburgers, forcing him to provide services for the party is completely okay.
One can be for banning discrimination for the most part but oppose extending it to the provision of services that someone finds objectionable.
While I personally am in favor of discrimination being legal generally, in every case with which I’m familiar, the controversy has been about serving same-sex weddings.
Take the case of Barronelle Stutzman. Stutzman worked as a florist in the state of Washington, which had anti-discrimination laws. One of her male friends was going to get married to a man. He asked for her to provide flowers for the wedding, something she couldn’t do based on her Christian faith.
She wrote in the Seattle Times, “If all he’d asked for were prearranged flowers, I’d gladly have provided them. If the celebration were for his partner’s birthday, I’d have been delighted to pour my best into the challenge.”
Her providing service isn’t just a hypothetical; she had done so for years. It wasn’t even as if the man was unable to get flowers at all. In the Washington Post, she wrote, “I gave him the names of three floral artists that I knew would do a good job, because I knew he would want something very special. We hugged and he left.”
To me, that sounds like a reasonable chain of events. It didn’t end there, though.
The Washington State Attorney General sued Stutzman, as did her friend and his partner. She lost the case. Being in favor of these sort of anti-discrimination laws is being in favor of harassing business owners until they fall into submission.
One of the strongest arguments by proponents of same-sex marriage was that legalizing it would have no impact on anyone who has a religious objection to it. Laws like that in Washington make that argument untrue.
Now the argument is that someone can still believe whatever they want, she just can’t follow those beliefs in her business. Freedom of belief, but with the compulsion to violate that belief, can hardly be described as freedom.
This is a difference of values. I value tolerance and pluralism. With this issue, the left cannot claim that.
In the Stutzman case, it was not a progressive supported by the ACLU who wrote “We all have different viewpoints about how to live our lives. One thing I’ve loved about our country is that we protect the freedom of artistic expression and the right to disagree over these kinds of issues without one side being threatened by the government over it.” On the contrary, it has mainly been progressives fighting against that idea.
