Fact: Even
if same-sex marriage were legal in North Carolina, there are no state
or federal protections specifically against refusal of service on the
basis of sexual orientation, though the Civil Rights Act of 1964
prohibits discrimination in public establishments based on other
immutable individual characteristics including race, color, religion,
and national origin. Currently, a florist in Durham can refuse to serve
an engaged couple because they’re gay men, but can’t refuse service to
the same couple because they’re Mormons.
The very few
wedding vendors who have been sued after refusing services for same-sex
weddings have seen those suits argued on the grounds that the states ban
discrimination based on sexual orientation. Plaintiffs have not argued
that they were harmed because they were planning a wedding, but that the
harm was because they were gay. Florists in North Carolina currently
have the right to forgo money from gay people, and the results of this
amendment vote will not change that fact. Discrimination laws are
handled separately from marriage laws, and the two kinds of laws are in
almost constant revision. Two years after legalizing same-sex marriage,
New Hampshire is beginning to consider religious exemptions for business
owners wishing to refuse services for same-sex weddings. Interestingly,
florists don’t seem to be arguing for the right to refuse service to
interracial couples on religious grounds, even in Virginia, where almost
entirely religious reasoning was used to justify the prison sentence of
the Lovings. It’s this kind of “singling out” of arbitrary groups that
courts sometimes strike down as discriminatory.
Why
are legislatures willing, then, to consider allowing religious
discrimination against same-sex couples but not interracial couples? It
could be that same-sex marriage, and gay rights in general, are very new
compared to our national struggle with racism. Our level of distaste
for anything hinting at racism is more widespread than our distaste for
homophobia. But these things do change.
But there could
be a very simple solution for the florist afraid he’ll be denied the
right to discriminate. “I’ll serve you but my religion tells me I must
deeply disapprove of your desire for flowers at your gay wedding”. The
florist would end up with his deeply held views intact, and possibly
also the money, which is referred to in economics as a “win/win”. Of
course, this would also take government out of the unnecessary business
of regulating what is naturally self-correcting: either the couple pays
for the roses in spite of what’s been said, or they go elsewhere based
on what’s been said.
Though some might insist that
deeply held religious views are worth the risk of a court-imposed fine,
it is untrue that same-sex marriage necessarily brings injunctions
against same-sex discrimination. If a bill is introduced to legalize
same-sex marriage in North Carolina, opponents have the right to lobby
for religious exemptions as they’ve done in every other state. If our
state were to ever legalize gay marriage without religious exemptions
for businesses, and without adding sexual orientation to our list of
prohibited harms, florists certainly could refuse service. A small
percentage of aggrieved couples (based on statistics from other states)
might actually file a civil suit, and courts could conceivably decide in
favor of the florist.
These laws allowing religious
refusal of services ‘facilitating a same-sex marriage’ may wither
eventually due to their arbitrary nature. Is it ok to refuse goods and
services for a wedding, but not ok to refuse goods for a same-sex
anniversary party? What about the rehearsal dinner, the fuel for the
cars driven by wedding guests, the mortgage on the house?
The
primary religious argument for these exemptions is that, without them,
businesses would be required to ‘endorse’ same-sex marriages. Each of us
constantly evaluates our religion, or non-religion, as it relates to
our actions. If I go to Disneyland, am I endorsing fantasy and the truth
of talking mice? If I go to a bar-mitzvah am I endorsing Judaism? If I
sell potatoes for an official gathering of racists am I endorsing
racism? If my son is a criminal, and I love him, am I endorsing crime?
Ultimately we all realize that our deeply held religious views must
exist independently, and sometimes in spite of, the laws of our land.
The extraordinary accomplishment our country’s new First Amendment was
that it forbade an earlier law which allowed Massachusetts to burn at
the stake four Quaker women who dared to enter the colony, but did not
forbid the deeply held view that those women should be burned.
In
protecting certain classes of people, though, government isn’t
requiring any endorsement, support, agreement, or kindness toward these
groups. In protecting against religious discrimination, government is
specifically not saying that Buddhists must endorse Islam or Judaism.
This is why these anti-discrimination laws, and hundreds of other laws,
co-exist with our freedoms of religion: it’s entirely possible to retain
deeply held religious views while not discriminating or breaking other
laws. And if the American Experiment has taught the world anything, it’s
that mere secular laws are powerless over deeply-held religious views.
But these views, across large religious groups and
teachings, do change remarkably over time, and usually in response to
outside cultural forces. Evolving views of the status of women and
children are good examples. Strongly held religious convictions differ
even within religious groups. A difference of this kind (the subjugation
of women) has caused President Jimmy Carter, and many churches, to
leave the Southern Baptist Convention. Fundamental human rights don’t
change. As we remember the religious justifications for slavery, we
appear to agree that fundamental human rights are too important to
decide based only on changeable religious views.
--
http://www.law.northwestern.edu/journals/njlsp/v5/n2/4/index.html#note13
http://www.cardozolawreview.com/content/32-5/Underkuffler.32-5.pdf
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