Yuval Levin at least offers us the opportunity to have an intelligent conversation about the intersection of gay marriage, commerce, and freedom of religion. His take is smart, in the sense that it is a better argument to say that compelling people to participate through commerce in marriage ceremonies that they find religiously objectionable is better understood as an Establishment of a religion than as an infringement on the right to practice one’s religion.
Better, I say, but still not exactly right.
What’s missing is an effort to understand how civil rights intersect here.
We’re all familiar with signs in stores and restaurants that read, “We reserve the right to refuse service to anyone.” Maybe they won’t serve minors or drunks or people without shoes. We gladly give businesses this discretion, but we call a foul when they refuse service to people based on their gender, religion, or race.
If there is a Church of Progressive Liberalism, what it is pushing is the idea that gays fit into this class of individuals who cannot be denied service based on who they are.
Now, if you ask most conservatives if it’s okay to deny a piece of pizza to someone because they’re a woman they will say ‘no.’ If it’s because they’re not wearing a shirt, then ‘yes.’ In this dichotomy, your perception or even knowledge that someone is gay is more like the first example than the latter. Therefore, most conservatives will acknowledge that it’s wrong to deny someone pizza simply because they are gay. But if they want to use your catering services for a gay marriage, then it less about who they are than what they are doing. They’re getting married. This is a choice more akin to going shirtless.
So, then, the argument shifts a bit and it becomes, for progressives, an argument about what is fundamental to who or what someone is. Not everyone gets married, but heterosexuals all have the unquestioned right to get married. It’s in these grooves where the real contention arises, because we don’t want to burden someone’s religious beliefs unless it is absolutely necessary to preserve something even more important. If we insist that the right to get married trumps the right to be unburdened in your religious beliefs, we have to explain why this is the case.
Someone else can provide that explanation better than I can, but the basic outlines are that who we choose to marry or even our decision to get married or not are fundamental to who we are. To deny us this right is to deny us part of our humanity. You can agree with that or not, and it still has to overcome the same argument applied to the right to practice your religion according to your own conscience.
But, here, at least, is where the debate belongs.
As the cause for lesbian and gay civil rights has morphed into a bizarre imposition of PC silliness on religious fanatics and the drive for so-called marriage equality, I have found myself increasingly uninterested in supporting these efforts. None of my gay friends are married and none of us are inclined to do the deed anyway. If some want to obtain a marriage license, I think they ought to be free to do so. If they can find some religious organization to perform a ceremony for them, they ought to be free to do so. There is certainly no shortage of people willing to perform these ceremonies for a fee.
But I am finding this latest drama and conflict not justified by the actual injury. The hysterical reactions of the indiana legislature to prospect of SSM are matched, it seems, by the equally hysterical reaction to the just law passed. Of course, this is just a manufactured media hysteria with little actual impact in the real world, but still…
We really are just talking about silly “wedding vendors” rather than some actual discrimination that injures gay and lesbian couples. I don’t understand why anyone would want to have a hateful photographer or caterer at their party. I certainly wouldn’t a religious caterer for even so much as a birthday party.
The real problem here are the extremists, political demagogues, and media hacks, and social media trolls throwing hand grenades into every situation that maybe might could possibly arise in the interactions between gays and the rest of society. We are used to being treated badly and would dearly love it to stop, but I don’t think harassing religious fanatics and caterers is going to do the trick.
Gay pride used to mean we didn’t give a shit what other people thought of us. I still don’t.
The point about “silly wedding vendors” is that if for long-held vision of something on their bucket list or even for a lark, a same-sex couple wanted to have the “traditional American wedding with all the trimmings”, there should not be a religious test applied to that. If that includes monastery bread on the menu for the reception because that will please Aunt Susie, the monastery in its guise as a business should not refuse a paying customer for what is essentially a business service and not a sacramental service.
Enforcing what “gay pride” means on all gays is a fools errand.
I’m not sure any religious fanatics have actually been harassed despite the self-reports and GoFundMe sites.
The problems indeed are the political demagogues in the Indiana state house. There is no moral equivalency here. The state legislature was way out of line in essentially establishing a religious test under color of protection religious freedom. The fact that it is about silly wedding vendors shows how far out of line the legislature went. Will they protect the employment of the strict Baptist wait staff who refuse to serve drinks at a national chain restaurant? I don’t think so. It is pure grandstanding to the preachers.
And no matter how philosophical one is or how frivolous the business, experiencing discrimination in public accommodations comes as a slap in the face. Which, by the way, is the intent of the exercise.
I think that gay couples aren’t having any trouble getting what they want from the silly wedding vendors. My personal favorite parody(?) of the wedding with all the trimmings is this one:
http://www.pinknews.co.uk/2015/02/20/a-jewish-gay-couple-rode-into-their-wedding-on-a-unicorn/
And this was a few years ago! More power to them. They had a great party and everyone apparently had fun with them.
There is no discrimination going on. Everyone just needs to take a breath.
There is no discrimination going on in most places. That is why state legislatures were goaded to act. But most places does not mean everywhere. The Indiana legislature was a strategic retreat for opponents of same-sex marriage and a declaration that Indiana would tolerate discrimination–except the public backlash showed that not even Indiana would tolerate discrimination.
Having lost the war and been trapped in the retreat, the attempt to play victim (call it the Darren Wilson ploy) to liberal monsters has begun. That play has netted a South Bend pizza parlor a half million bucks in sympathy.
Arkansas went for a rewrite. Georgia dropped their legislative juggernaut. North Carolina encountered opposition from the Koch-head governor or all people.
As long as progressives don’t turn on their own, this one likely will move forward with progress. It is a matter of time until Justice Roy Moore’s decree in Alabama is overturned for good.
It is easy for progressives to get too abstract and philosophical on the details and hairsplitting of this sort of issue and get wound around the axle so that momentum ceases. That is where the real PC arguments take over.
I agree with most of your take. Our society is clearly on a road to egalitarianism. The only kind of bigotry that will be tolerated is intolerance of bigots. I’m not sure it’s hair splitting, however, to stand up for the rights of gays to obtain catering or wedding cake. After all, if a black couple were denied service because they were black, that would clearly be wrong in most people’s eyes. So the fundamental question still comes down to whether homosexuality is a choice.
My wife used to be lesbian. For her it was a choice. But clearly for many it’s not.
Neil, this isn’t complicated. The Indiana State government was responding to multiple religious fundamentalists who were demanding a right for businesses to discriminate against the LGBT community. THE LAW HAD JUST CHANGED. Discrimination had just been licensed by the State, and business owners were beginning to say out loud in public that they planned to discriminate.
And here’s proper responses to those who say “well, very few businesses would have done this.”
So if the Indiana RFRA, much more expansive than the Federal RFRA, had been allowed to take effect, we can be sure that many fundies would have discriminated and the many crazed fundies legal defense orgs would have defended their discrimination to court. At the same time, there would have been a public pressure campaign on businesses to get/force them to discriminate.
Widespread discrimination was about to take place; Arkansas, Georgia and other States were about to pass their own expansive RFRA laws. Their intent was to grow the right to execute that discrimination.
Complicated and I share some of your feelings. Could they have found another baker? Absolutely definitely. If you had a choice, would you really go with a business that didn’t think you had a right to the ceremony they’ll be catering? Of course not. I bet these transactions and negotiations happen every day, with people responding to peoples cues about their level of interest and comfort.
It’s a problem, though, because We Need a Law. All those subtle interactions can’t be subject to a court case. Do we really want to go through a lengthy litigation process to flesh out every detail of every twist and turn of every potential economic exchange with gay people? Do we need to have a philosophical debate about being vs doing for every transaction?
Imagine being a gay person and needing a bachelors degree in philosophy and a law degree to understand what your rights may be in the hundreds of different scenarios you’d run across every week? It must be exhausting.
ETA (wow, this commenting system really makes you commit): I think it boils down to oppression. If there are free choices to make between lots of different providers, then there’s really no oppression. But if you’re at a pharmacy counter and can’t get a pill from a pharmacist in a small town, or if you’re at a gas station with an empty tank and they refuse service, then that’s oppression. My question is how do we determine what’s oppressive and what isn’t when there are so many different shades of grey? On which side would we like to err?
The gas station example might be a stretch.
Gas station might be a stretch — but it’s certainly conceivable and there as an illustration. More historically accurate — Jim Crow motels and hotel made it difficult for blacks to travel.
Business that are open to the public are open to all of the public, without unreasonable discrimination. Punishing a customer for what’s in your own head is hardly a reasonable business practice.
That principle was fairly well established with the civil rights laws governing public accommodations.
The hidden agenda in this sneaky religious approach is to reopen that old debate, which the Pauls and some other libertarians never abandoned.
But, as Martin said, we don’t force businesses to serve those who won’t wear shirts or shoes. So it’s not about what’s in the proprietor’s head. It’s about what are legitimate bases for discrimination.
As with so much of law, one has to draw a line somewhere. There was a time when it was alright to refuse service to someone for being Irish or black or Jewish. As a liberal, I believe being gay is far more similar to that than to refusing to wear shoes. And if we sin this battle, we are imposing that view on those who don’t consider this so. I’m alright with that. It doesn’t harm anyone to be forced to sell pizzas at gay weddings (so long as you’re in the business of selling pizza).
Besides all of your points, there is a practical issue: If you force a business to do stuff they don’t want to, there is the “spit on the hamburger” effect – they may find a way to sabotage you. Yuck. It does happen, however.
That is more likely is less populated areas where there are not a lot of alternatives. The insult of discrimination is enough in most places to have people find more agreeable alternatives.
Some long-time patrons of businesses might be quite shocked when they come to have a same sex wedding at which businesses that have been taking their money for years suddenly develop religious scruples.
Voluntary exclusion of blacks from the market denied them jobs, access to education, membership in organizations, and a hell of a lot more.
Discrimination was economically, politically, culturally, and socially devastating to tens of millions.
Christian businesses declining to participate in gay marriage will be as close to harmless as makes no difference.
The harm to be avoided does not justify the insult to religious liberty of coercing bakeries and florists.
Totally agree. If you force someone to go against their religion, they get real grouchy, defensive, and annoyed. And they find more reasons to oppose the group forcing them to do stuff.
I think its a misguided approach.
My problem is that for most of these people it is certainly not against their religion. They are using their religion as an excuse to discriminate. They need to stop calling themselves Christians.
But why does that matter? Why is it so important to force someone to do something they don’t want to? Most of these folks have no problem with normal service, but it’s the wedding part that they have a difficulty with.
Yeah, why DO those blacks insist on sitting at the lunch counter, making all the other customers uncomfortable?
Bigots need to have their nose rubbed in their bigotry, HARD. Until they stop. Or until they’re dead. Either is okay.
Dead…
I don’t support the efforts to force businesses to do things that they object to, myself. Yes, businesses should be open to all. But if you are going to say “You HAVE to help us get married, regardless of your personal opinion or your strongly grounded religious idea”, I am not interested in that effort.
If you can’t get a business to support your wedding, find a business that will. Certainly some wedding planner will find the Gay Wedding a business opportunity. Why not support a business that supports your personal choice? Why push the businesses to do this?
This is creating a back-lash, which is not to the advantage of the LGBTQ folks.
In 1964, there was a consensus that abortion was a right for women. Today, it is on the defensive. It is losing in one state after another. The gay rights situation is very similar. Wins in the court often set up loses in the public square. Because activist judges.
Should pharmacists be forced to give birth control? Should Muslims be forced to pick up people in their cabs if they’ve been drinking? Can Muslim/Jewish grocers refuse to check you out if you are buying pork?
The issue is weddings, not normal service.
Uh, no, the issue reverberates to all of society. If there are religious exceptions to weddings, why do those exceptions for the purposes of interpreting the law not apply to the above? Each of the scenarios i point to above have all happened. In fact, conservatives were possed about the Muslim cabby and grocer. And i sided with them then. They of course won’t side by me with respect to pharmacists and gay marriages.
Wedding cakes are not part of the actual wedding.
They’re for the reception, afterwards.
A party, in other words. Just like an anniversary party. Would it be okay to refuse to make a cake for a SSM anniversary party? Or a birthday party for kids of a SSM couple? Or is it just that gay are SO ICKY that having anything to do with them at all should be optional?
It’s bigotry. Buy a cake, apply to the face of the bigot.
In 1965, there was a consensus that impediments should not be put the way of minorities, expecially blacks, voting. Today several states have successfully put those impediments in place.
It is a different set of activist judges who have brought this about. Five of them selected a President of the United States who did not win the election.
Wins in the courts set up losses in the public square because people refuse to obey the new law. Or use confusion over it to create a backlash. The noxious idea that protecting the right to be free of discrimination on the basis of sexual orientation or gender identity is asking for “special rights” is a particular form of special pleading. Only the appearance of both prospective spouses or the names on the cake could tip off the baker to the fact that they were catering a same sex wedding.
All it is is a more subtle form of queer rolling, putting teh gays in their place. Religion is a pretty transparent excuse, just like it was for the defense of segregation and the defense of slavery.
The fundamental issue is what exactly does “equal protection under the law” mean? And what does the prohibition of establishment of religion mean? Or the prohibition on limiting the free exercise of religion?
A person does not come into a business to patronize it as a customer and expect to be told that services available to other people are not available to them because of the owner’s religion. A baker who has issues should just stop making wedding cakes for everyone. Does this same baker ask sexual orientation for birthday cakes or general purpose cakes?
A pharmacist who is opposed to writing prescriptions for contraceptives because of opposition to abortion should have his license canceled for not passing reproductive biology.
A lot of these religious rules exist only to create a religious identity — to make people different from the people in their surroundings, a setting up of an us and them. In that sense, although deeply believed they have no reasonable purpose.
“A pharmacist who is opposed to writing prescriptions for contraceptives because of opposition to abortion should have his license canceled for not passing reproductive biology”
Pharmacists don’t write prescriptions, they fill them.
BUT, a pharmacist who refuses to sell emergency contraception to a rape victims should be CRIMINALLY CHARGED as a ACCESSORY TO RAPE.
(yes, I feel strongly, thus the caps)
Exactly ONE pharmacist getting sent to prison, and the entire problem would evaporate.
YEA! Well said.
There’s an easy way for these people to protect their ‘religious rights,’ if they weren’t such cowards. Put up a sign reading ‘GOD HATES FAGS,’ and you won’t get gays ordering your pizza. Put ‘Jesus Died For YOUR Sins’ in your logo, and Jews won’t bother you so much.
What people are upset about is that they can’t quietly discriminate, in a way that stays under the radar.
I disagree, the bigot are upset that they don’t have the choice to discriminate in any way they see fit.
There is no ‘us’ without a ‘them’ for these people.
There’s no ‘righteousness’ for themselves without condemnation for other, non-conforming people.
It’s a sad, small insecure world for people who can’t accept that others don’t share their self-proclaimed standards of ‘morality.’
I hate to say it, but being concerned about backlash is a very white privileged mindset. Why don’t you let the people who are affected by these laws worry about whether there’s going to be a backlash and balance that against their desire in the here and now to be treated with dignity?
Yes, who wants someone who hates you to cater your social event? People can choose not to be customer’s of a discriminatory business, but how do you know which businesses hate you? These business seldom advertise the limitations they put on the customer base? Will Angie’s list tell you? Is there a sign on the front door? How do people connect to a word of mouth warning system? Once learning -face to face perhaps, that a business is discriminatory can a person place an ad declaring such and such business is just that on radio and TV? Can they erect a sign outside the business?
Which discriminatory business will be first to call libel and sue?
Why is a case of two people of the same gender being denied a commercial wedding cake any different than a black woman & a white man being denied a commercial wedding cake? The business owner is making a prejudiced decision that these customers are not “worthy” of their consideration.
If I was a wedding planner, I would immediately become a specialist in gay weddings. I would find bakers, florists, whatever, who do not have a problem with gay marriage. I am sure there are many. I would use this list to provide an issue-free wedding planning experience. This would make it easy for a gay couple to focus on the positive, and avoid the negative, experiences. There must be some gay person out there who is a wedding planner. Why doesn’t that person start this business?
“Why doesn’t that person start this business?”
Because the business owner would be harassed by fundamentalists, fundamentalists whose harassment activities would be give license by the fact that the State had passed a law endorsing discrimination. Look at the way the Citizens’ Councils worked during the Jim Crow years to see examples of this in action.
And, because in Indiana a business owner would almost certainly need to gain support from heterosexuals; it’s doubtful that a business could find enough customers from the LGBT community alone to sustain them.
Finally, I have no idea why you seem to believe that gay marriage is the only place where bigoted people would refuse service to LGBT customers if this law had been allowed to stand. It would have grown out of that into other avenues of commerce and social engagements.
Because LBGT is 5% of the US population max, and are you going to find enough businesses and customers in the bibkebelt?
Its interesting to remember the federal law was passed at least in part so the military couldn’t force Sihks to cut their hair full stop, and Jews could wear a yarmulke etc.