Should Stores Be Required to Serve Gays?

by Pitt Griffin on April 6, 2015 · 0 comments

in Constitution, Free speech, Gay Marriage, Politics, Religion

“Never let your sense of morals prevent you from doing what is right” ― Isaac Asimov.

Some religious business owners don’t want to cater to gays. Laws allowing them to refuse service were proposed – and then withdrawn after a storm of protest. Which raises the question – were the protests fair or should religious business owners be allowed to pick and chose who they do business with?

The answer is no.

The Unites States does not have a state religion – the First Amendment clearly says so. The same amendment also prohibits the state from infringing on religious freedoms – as affirmed by the 1993 Religious Freedom Restoration Act (RFRA).

That Act – proposed by Sen. Schumer (D-NY) and signed by Bill Clinton – is held up by conservatives as ‘essentially the same’ as today’s state RFRAs. Slyly, these religious apologists suggest that ‘religious freedom’ is so embedded in the American psyche, that even Democrats supported it. Therefore, to oppose today’s state RFRAs is hypocrisy.

But there is a chasm’s difference in intent between the two. The 1993 federal act was inspired by two native Americans who were convicted of drug use for smoking peyote as part of a religious ritual. The Act recognized their right to use an otherwise illegal drug as part of their religion. It mandated that state interference in religious practice must follow a compelling state interest.

Thus does the prohibition on polygamy stand – as does the ban on human sacrifice. But, animal sacrifice is permitted in Santeria.

Religious freedom was once used as an argument to keep slaves. An idea considered preposterous today. Religious prohibitions against miscegeny and contraception have been ruled unconstitutional. As have prohibitions on sodomy. Religion as a basis for social and legal policy has been losing currency – with the exception of the Supreme Court’s Hobby Lobby decision.

I suspect that decision will be viewed much as Dred Scott, and the Plessy decisions are viewed today – as just plain wrong.

Religious establishments – Churches, Temples, Mosques and the like – are rightfully allowed to run themselves as they see fit. It is well-established they have extraordinary status. But religious rights do not extend into commerce. Churches don’t have to marry gays, but Christian bakers – their ‘sincerely held religious beliefs’ notwithstanding – do have to supply cakes to gay weddings.

In America, civil rights have primacy over religious rights.

In response, conservative Christians have been trying to create ‘gotcha’ moments by ordering cakes from tolerant bakers saying such things as “My religion thinks that gay marriage is a sin”. Does the baker have to put that message on a cake? I could argue that it is apples and oranges. When a gay couple orders a wedding cake they are ordering exactly what everyone else is getting – a wedding cake. But if they were to ask for two plastic grooms to stick on the top. the bakery could refuse them on the grounds that they don’t stock that item.

Put another way, if I sell shirts, I can’t refuse to sell a shirt to a gay guy. But I don’t have to sell colors I don’t want to stock.

As a practical matter, I would advise the gay bakery to put the homophobic message on the cake – as it is a simple statement of fact. And if people want to advertize they are bigots – let them. But that doesn’t extend to hate speech. If Westboro Baptist Church wants a “God Hates Fags” cake, show them the door. (But you would still have to sell them a plain cake.)

Religious rights folks try to contrast women, blacks and other protected classes with gays, on the grounds that gender and ethnicity are inherent, but sexual orientation is a choice. Bullshit. Religion is a choice – being gay is no more a choice than being straight.

Where these religious bakers’ and florists’ arguments are weakest though, is in their inconsistent application. If these Biblically constrained, God-fearing tradespeople had previously refused service to remarrying divorced folk, or denied birthday cakes to cohabitating heterosexuals, I would applaud their dedication to their God’s complete moral code.

But the evidence shows that the objection to catering gay weddings is not religious but cherry-picking bigotry.

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