Nondiscrimination and compelled speech

I am going to open here with a cut and paste from a comment at Rod Dreher’s blog, by a man who posts as John. It comes out of a discussion on the prosecution of Baronelle Stutzman, who declined the business of an old friend and valued customer to prepare the flower arrangements for his marriage to another man. As a member of a Southern Baptist Church, she felt she could not participate in celebrating their union as a marriage. John, a gay man who is active in advancing the cause of gay rights, offers this observation:

“I think a formula which distinguishes between expressive and nonexpressive activities in the public sphere constitutionally makes sense and, and serves as the basis for a meaningful compromise between our opposing camps.

“The bakers and photographers should not be compelled to provide expressive services to same sex couples or anyone else engaging in activities they deem immoral and I agree with those who think our side shouldn’t waste our time suing them into financial ruin when there are plenty of business men and women who will gladly accept our paychecks.

“Our quarrel should be with the manager if a Days In. Or a Marriott Hotel that refuses to provide room and board, not the bread and breakfast. The public school that refuses to hire gay teachers or allow for the formation of gay-straight alliances, not the Catholic school that refuses to admit either group. The hospital that denies visitation rights in the ICU, regardless of religious affiliation but not the religious hospital that refuses elective, non-emergent outpatient surgery.

“As I said yesterday, I think SCOTUS should and will hear this case and throw the state Supreme Court’s decion out. If they … limit this to expressive services I would have no objection with the result. As one former VP put it, “Freedom means freedom for everybody.” As for the gay couple who brought this lawsuit, well, as sorry as I would be for them if and when they lose, they should have taken VP Cheney’s quote to heart.

“Or Justice Kennedy’s for that matter since his ‘at the heart of liberty…’ quote which conservatives mock is supposed to protect everyone, including those who hate it. It applies to Stutzman. It applies to a gay couple who want to marry. It applies to the wife who wants to play the role of the traditional house wife. It applies to the woman who wants to be CEO. It applies to the woman who wants a first-term abortion, and it applies to the woman who wants to carry the fetus to term. It applies to those who subscribe to a religious belief as well as those who reject all religious teachings. It applies to everybody.

“I will speak for genuine defenses of religious liberty where it occurs, whether that expression involves religious beliefs in line with my values or not but I will not ‘turn the other cheek’ for those members of ‘the religious right’ who hide behind the overly broad and often specious claim of ‘religious liberty’ to justify their use of the state to justify across-the-board discrimination against the gays, lesbians, bisexuals, or transgendered persons.

“I look forward to a day, when the politically active members within our respectively opposing camps take a deep breath, sit down, and write the Utah compromise into law nationwide. That is the only way out of this cycle of mistrust, vengeance, and political warfare.”

I think John has this about right. Some years ago, I saw a postcard on a friend’s bulletin board lampooning the concept of “The Gay Lifestyle.” It read “Watch them as they do their laundry, mow the lawn, wash their car, dig in the garden, cook dinner, drive to work in the morning…” All of these are things just about everyone does, and they have nothing to do with sexual orientation. The essence of “invidious discrimination” is that the rationale to discriminate has nothing to do with the function or transaction in question. We all need a roof over our head, groceries to cook (or a prepared meal eating out), a job to support ourselves with. There is no reason for discrimination because the person happens to be, or think or themselves as, or is thought to be, gay, lesbian, or much of anything else.

But it is the essence of a diverse, pluralistic republic that people will disagree about many things, and there is nothing wrong with that. Religions have many taboos that are thought silly by almost everyone else. Islam and some forms of Protestant Christianity forbid the consumption of alcohol. Roman Catholics insist on using wine, not grape juice, for its holiest Sacrament, and Jewish consumption of wine is not far behind. Jews and Muslims agree on prohibiting consumption of crab, lobster, oysters, scallops… while most Christians are keen on eating all of the above. Few religions practice animal sacrifice anymore, but the Santeria do, and while PETA finds this abhorrent, so long as slaughtering animals is permitted for a variety of other purposes, particularly human consumption, the Santeria have a right to practice their faith.

And so with teaching on homosexuality. If it is a tenet of a given faith that homosexuality is forbidden, the government has no jurisdiction to intervene. Neither does any person have any obligation to listen. No civic rights or duties are contingent on membership in any religious faith. Those who disagree can join, or form, any number of churches with different perspectives. And, in commerce, discrimination on the basis of differing religious faiths or tenets is generally prohibited.

But, sometimes, commercial activity can also be expressive in nature. There is no “speech” or “advocacy” or “expression” in selling a can of corn, or a suit of clothes, or a kite, or for that matter a home. But, if one’s business is printing, decorating cakes, photographing events… there is indeed an expressive component. It is not merely a matter of selling a product, but of being actively involved in celebrating an event, or expressing a message. There is very strong and well-developed constitutional jurisprudence about compelled speech.

Supreme court precedents include West Virginia State Board of Education v. Barnette, (a state may not compel students to recite the Pledge of Allegiance), and Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, (a Massachusetts public accommodations law may not compel the organizers of a St. Patrick’s Day parade to include a float or banner with a message they do not wish to include). In the case brought against Elane Photography, the Supreme Court of New Mexico declined to apply these precedents in a commercial context, noting that the U.S. Supreme Court had never so applied them.

Hopefully, as John wrote, the U.S. Supreme Court will find that a business owner “should not be compelled to provide expressive services to same sex couples or anyone else engaging in activities they deem immoral.” It is worth noting that the Open Housing law of 1968 exempts buildings with four or fewer residential units, one of which is owner occupied. That only makes sense, because the more up close and personal a situation is, the less effective government regulation can be. That is true no matter how irrational or obnoxious the owner’s feelings may be. As John sensibly notes, nondiscrimination laws should be applied to chain hotels, not to a couple operating a bed and breakfast in their home.


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