Last week Governor Jan Brewer vetoed Arizona Senate Bill 1062 after a national backlash that described the legislation as being “anti-gay.” The bill would have allowed Arizona businesses to refuse, on religious grounds, to offer their services to anyone who did not belong to a particular “protected class” (e.g., race, ethnicity, sex, religious groups, etc.).[i] Since Arizona state law does not recognize sexual orientation as a “protected class,” the bill would have allowed business owners to refuse to provide services related to sexual orientation, including services for same-sex weddings.
Critics of the bill said that allowing businesses to refuse for religious reasons to serve self-identified gays and lesbians was tantamount to allowing businesses to refuse to serve African-Americans for religious reasons. Supporters said that the bill wasn’t about discrimination but was instead about protecting businesses that do not want to participate in activities they find to be immoral, such as same-sex weddings. The law was supposed to protect people so they don’t end up like a flower shop owner and baker who are now facing legal punishments for refusing to participate in same-sex weddings (even though they regularly serve self-identified gay customers).
As other states debate the merits of bills like this, it’s important that we examine the issues at stake. How do we balance a person’s right to not suffer discrimination with another person’s right to not be coerced into doing something he believes is immoral? Before I offer a suggested approach, here are two easy solutions that I don’t support.
1. Private Businesses Should Be Allowed to Refuse Service to Anyone
At its most extreme form, this solution would mean repealing the 1964 Civil Rights Act (along with similar legislation) and allow businesses to refuse to serve people who once belonged to “protected classes” such as race, religion, sex, nationality, or disability (among other groups).
The idea behind this approach is that, just as a homeowner can ultimately decide who enters his home, a business owner should be allowed to ultimately decide who enters his business. If a racist business owner denies service to African-Americans, then “the market” will punish him by causing other people to not seek the business’s services. Therefore, the government is not needed to stop discrimination, because a kind of social “natural selection” will cause discriminatory businesses to go “extinct.” However, if an entire community becomes racist or discriminatory, then the market won’t be able to do anything to stop that discrimination.
The other problem with this solution is that while the home is indeed a private place, a business is a public entity that happens to be owned by a private individual. If a business is open to the public, then it must be willing to serve every member of the public. The Senate commerce committee said in the 1960s that the Civil Rights Act was needed to stop “the deprivation of personal dignity that surely accompanies denials of equal access to public establishments.” Even though I know some Catholics support allowing business owners an unlimited right to refuse service, I'm not comfortable with that solution if it is truly an affront to the dignity of those seeking the business's services.
When it comes to same-sex couples, the Catechism states, “They must be accepted with respect, compassion, and sensitivity. Every sign of unjust discrimination in their regard should be avoided” (CCC 2358). The outrage people feel at SB 1062 when they believe that businesses could simply turn away people with same-sex attractions, even if they were doing something innocuous like ordering a hamburger, is, I believe, a kind of unjust discrimination. But in opposing discrimination we must be careful not to stumble into another extreme solution . . .
2. Private Businesses Should Not Be Allowed to Refuse Service to Anyone
No one really believes this solution should be literally enforced. If it were, then businesses could not refuse to serve rude or belligerent customers. A more charitable interpretation of this solution would be to say that businesses should not be allowed to refuse service to any kind of person, be it a person of a certain race, religion, sexual orientation, etc.
Critics of SB 1062 think that wedding service providers who object to what people call same-sex "marriage” should simply ignore their convictions and provide services for these weddings anyway. But I wish these critics would stop, just for a moment, and think about what they are asking.
Should wedding service providers be forced to provide services for polygamous weddings (which are legal even if polygamous marriage is not)? Polygamy is a part of some people’s religious beliefs, and others have argued that it is a kind of sexual orientation. Refusing to serve such an event would then be discrimination, would it not?
If you’re okay with polygamy, then substitute anything that’s legal but you yourself find morally wrong and would never want to support.[ii] If you would not want the government to force you to support what you think is wrong in that case, then can you sympathize with people who oppose same-sex "marriage" and don’t want the government to force them to support what they think is wrong those cases?
I think the solution to the dilemma of respecting conscience vs. preventing unjust discrimination has to come down to something like this:
No private business should be forced to take part in an activity that makes it appear the business owner supports something he considers morally objectionable.
This way of formulating the principle should take the sting out of the objection that “right to refuse service” laws allow business owners to essentially tell minority groups, “We don’t serve your kind here.” For example, many critics claimed that SB 1062 would have allowed restaurants to refuse service to same-sex couples or even would have allowed pharmacists to deny HIV medication to self-identified gay customers. CNN’s Anderson Cooper claimed legislation like SB 1062 could justify a bank refusing to give a loan to an unwed mother or a divorced woman because of the bank’s religious objections to divorce or nonmarital sex.
But all of these cases involve discrimination against people, not activities. For example, I think same-sex marriage and divorce are both immoral, but I would have no problem serving food to either a divorcee or a same-sex couple in a restaurant I owned.[iii] Serving someone a latte, even if they live a lifestyle I find immoral, does not violate my conscience, because selling someone coffee has no moral overtones (even if five dollars for coffee could be considered highway robbery).
However, if I were a lawyer, I would not help someone win an illicit divorce case, because I believe divorce (in the case of a valid marriage) is immoral, and I want no part in that activity. Likewise, if I were a photographer, I would not participate in a same-sex wedding, because I have moral objections to that activity as well. Plus, my objections to same-sex "marriage" are neutral to sexual orientation, because I wouldn’t support a heterosexual same-sex "marriage," either (e.g., two elderly sisters living together in a platonic relationship).
The bottom line is, no one should be forced to participate in an activity he finds to be morally wrong.
For example, should a print shop be allowed to refuse to print signs for the Westboro Baptist Church (WBC) that say “God Hates F***”? You might say such a refusal is not discrimination against the church but discrimination against a particular kind of sign that the business would not print for anyone. But what if a museum dedicated to eradicating “intolerance” wanted the signs for an exhibit about WBC? The print shop may agree to print the signs in this case, because they support the message behind how the signs are being used. In refusing to print the signs for WBC, the shop doesn’t want to support WBC’s message about God.
Likewise, a wedding service provider should not be forced to endorse a message inherent in same-sex weddings that he doesn’t agree with, namely, that marriage is not fundamentally about uniting men and women in lifelong sexually exclusive relationships.
Freedom Goes Both Ways
A critic could object that Westboro Baptist Church members are free to hold their terrible religious beliefs, but they don’t have the right to impose those beliefs on the world through their signs, and so the print shop has the right to not serve them.[iv] But by that logic same sex couples don’t have to get married and impose their beliefs about same-sex marriage on everyone else, either.
Of course, the critic will probably fire back and say that marriage is a civil right same-sex couples should have, and so businesses that provide marriage (in the form of wedding paraphernalia) should not refuse to serve these people. But by that logic, freedom of speech is a civil right WBC members should have, and so businesses that provide free speech (in the form of speech paraphernalia like signs) should not be allowed to refuse to serve these people.
Now, someone could object that the distinction between discriminating against persons and discriminating against activities could mean that business owners would have the right to refuse to support activities they find to be immoral even if most us do not agree with them. One example would be the case of racists who oppose interracial marriage and refuse to provide services for interracial weddings.
It may mean that; but even if it does, then this may just be the price we pay for living in a free society. Unless we are willing to embrace one of the two extremes listed above (free to refuse service to anyone vs. forced to serve everyone), then we have to draw the line somewhere. Unfortunately, anywhere we draw that line will result either in someone’s conscience being violated or someone being denied service and feeling discriminated against.
Hopefully you can see that there is no easy solution to this problem and that we as a society should thoughtfully dialogue about this issue and not just rely on hackneyed and ill-thought-out slogans like, “Don’t Hate, Don’t Discriminate!”
Personally, if I had to draw the line, I would err on the side of allowing people to refuse to serve others instead of forcing them to violate their conscience. I would support this even if it meant someone denied me service because they thought I was engaging in an activity they found to be immoral, like defending the Catholic Church.
As Socrates once said, “It is better to suffer evil than to commit evil.”
[i] However, the bill did contain a caveat that any such refusal could not impede a “compelling government interest.”
[ii] If you have no moral objections to everything that is currently legal in the United States, then I fear you may have a stunted or malformed conscience. If you have a moral objection to me saying you have a mal-formed conscience, then hopefully you would not want the government coercing you into supporting my work, and so you can see the need for laws to protect conscience rights.
[iii] This should not be construed to mean I think they are immoral for the same reasons or that they can be analyzed in the same way. For example, a civil divorce is acceptable if a marriage is annulled, or determined to have never been lawful in the first place, but there is no compelling justification for redefining marriage to accommodate same-sex couples.
[iv] Another objection is that people at WBC chose their beliefs, while sexual orientation is not a choice. However, religion is a federally protected class despite the free choice in following a particular faith, and most same-sex "marriage" advocates would still want legal protections even if it turned out sexual orientation were a choice. Therefore, this objection is irrelevant.