And then, the top front page story was headlined, “Texas gay marriage ban struck down.” So much to cover, so little time. Texas never “banned” “gay marriage.” To ban something, it must first exist and then be discontinued. Texas law has always defined marriage as a contract between a man and a woman. With encroaching threats to that long-standing (forever) definition, the Texas legislature passed DOMA legislation in 2003, which was immediately made irrelevant by the badly worded Lawrence v. Texas ruling. So in 2005 (the next available opportunity), Texas passed, by an overwhelming three-quarters of voters, a state constitutional amendment reiterating the long-standing definition. That is what is being struck down—and in doing so, a single judge is telling the state of Texas it has no right to determine its own legal definitions. That is a serious infringement of state sovereignty.
I could do another whole post on that, but the judge is not changing what happens for now, pending this and similar cases being ruled on by the US Supreme Court. So, for now I’ll set that aside and get back to the attack on religious freedom we were already in the middle of.
Let’s do this as something of a game: “Who Decides?” We’ll look at various scenarios related to business exchanges, and you take each case and say who decides—the service provider or the service requester.
1) There’s a lawyer, asked to represent an embezzler, who admits he did it but wants to get off. The lawyer doesn’t want to take the case, because, while everyone deserves good representation, an embezzler doesn’t deserve to avoid punishment, and it seems immoral to the lawyer to work toward that end. Should the lawyer be allowed to make that choice, or should he be forced to represent the embezzler simply because the request was made?
If you say the lawyer can choose, you’re in agreement with the law. In theory, a lawyer who knows his client is guilty can’t represent him as innocent; he would have to encourage the accused to plead guilty. If the accused client claims innocence, the lawyer can choose whether to take the case based on many personal decisions—unless he’s assigned by the courts to represent the client, because everyone is entitled to legal counsel. But even then, he can only represent the client as innocent if the client claims to be innocent (theoretically).
2) What if the lawyer is asked to represent an environmentalist group that is working to keep a large area of farmland from being irrigated? What if the lawyer feels strongly (not religiously, but personal belief) that the environmentalists are wrong? Is he nevertheless required to represent their cause simply because they came into his law firm and made the request? Conversely, suppose a pro-environmentalist lawyer is asked to represent a clear-cutting logging company?
If you say the lawyer can choose, you’re in agreement with the law, again. A lawyer/client relationship is considered intimate enough that either party can choose not to work together.
3) The Attorney General is required to represent the state (nation) and its laws, so if the law of the land defines marriage as a contract between one man and one woman, a definition used in thousands of places in US laws and regulations, is the AG required to defend a law, even if he personally finds it objectionable?
If you said yes, you would be in agreement with the law. If you said no, you would be in agreement with our current law-defying AG, who also encourages state AGs to personally nullify any law they disagree with, in violation of their oaths of office. The difference between the AG and a private practice lawyer is that oath of office. The lawyer is a free citizen, who can enter into an agreement with a client or not. The AG takes on the specific job of representing a specific client—the federal government—and is breaking the contract already entered into when he refuses to keep his oath. He could, if there is a personal distaste, assign an individual working under him to do the job, rather than doing it himself where he doesn’t have the heart or mind to make a good defense. But he is required to give the country the best defense of the law possible.
1) An artist paints landscapes and historical pieces, and often religious works. He also makes a living taking on commissioned works, including family portraits. Suppose someone requests that he paint the family portrait with the subjects all nude (it’s unclear whether the subjects would actually be nude during a sitting session)? If he finds this objectionable, whether for religious reasons or just distaste, is he required to take on the commission?
2) Suppose an artist is ethnically black and feels strongly against diluting the race by intermarriage, and a client is a black man and Asian woman couple getting married? He feels angry, and sees only ugliness in the couple. So, since his motivation is racist, should he be forced to take on the commission regardless of his strongly held (but non-religious) beliefs?
3) Suppose an artist is ethnically white but feels strong antipathy toward people of other races, and a client is a black man and woman and their two children. He sees only ugliness in the client family. So, since his motivation is racist, should he be forced to take on the commission regardless of his strongly held (but non-religious) beliefs?
4) Suppose an artist is religious, and believes in the sanctity of the natural family—married mother and father raising their children. Suppose a married client comes in to commission a portrait of himself and his mistress? The artist feels a strong sense of indignation against the glorifying of an adulterous relationship, and sees only ugliness in the client couple. Since the artist is engaging in commerce, is he required to take on the commission, even when the client is asking him to go against his strongly held religious beliefs?
5) Suppose an artist is religious, and believes in the sanctity of the natural family. And suppose a client couple, two men (or two women), come in and ask for a painting of them in the act of kissing. The artist is uncomfortable with the request, sees only ugliness in the commission being requested. So, since his motivation is religious, but could be labeled homophobic, is he required to take the commission and create the artwork regardless of his strongly held beliefs?
If you said no, you’re in agreement with the law. Either side can decide whether to contract the commission. An artist spends a good amount of skill, time, and part of himself into a work of art. If, for any reason, he feels he can’t do the work in a way that would either please the client or make him feel proud to have the piece of art represented in his body of work, he can turn it down. Life is just too short for an artist to spend time on something he doesn’t have the heart to create. It would be very unlikely that anyone would sue an artist for refusing to take on a commission. Much more likely would be after-the-fact contract difficulties, based on whether the artist completed the work to the client’s satisfaction. Because of the time and money involved, almost everyone agrees the artist can’t be forced to create a work of art he doesn’t want to create and never contracted to create.
1) A professional photographer makes a living doing portraits, family groups, weddings, and other special events. Suppose a client requests semi-nude portraits, intended as a gift to a spouse. If the photographer finds this distasteful, whether for religious reasons or just discomfort, is she required to take on the commission?
2) As with the artist, a black artist with strong anti-miscegenation beliefs is asked to photograph a black/Asian couple’s wedding. Since the motivation is racist, and the request is clearly for a legally sanctioned wedding, is the photographer required to take on the client?
3) What about a photographer who simply hates people of other races? Is the photographer required to go against her strongly held racist beliefs and take on a portrait session with an ethnically different family?
4) Is the photographer with strong religious convictions required to take as a client an adulterer and his mistress?
5) Is the photographer with strong religious convictions required to take as a client a “same-sex marriage” celebration?
Is the photographer different from the artist? Why? Maybe because of the time involved. But photography also requires skill, equipment, time, and an artist’s sense. There’s a story I heard this week about a skilled photographer who was asked at one point to photograph President George W. Bush, and he refused because he so strongly disagreed with the president that he said he couldn’t do him justice, and they’d be better off getting a different photographer. His honesty most likely led to a better portrait outcome than that skilled photographer would have been able to create.
Is there a point at which you can say, “No, that photographer has gone too far; they’re beliefs are wrong, so they should be required to act against their beliefs”? If so, at what point, and how do you—or some entity—decide where that point is?
1) Suppose a restaurateur has an irrational sense of hatred toward redheaded women—because of a past unrequited love. Suppose this restaurateur sees every redheaded woman as the embodiment of evil, and he refuses to serve such a person. Is he required to serve redheaded women against his strongly held (albeit irrational) beliefs?
2) Suppose a restaurateur has a room often rented out for special events, including wedding receptions. Photos are taken identifying the special location that is his restaurant. Food served represents the reputation of the restaurant. Is the restaurateur required to rent the room for a “same-sex marriage” celebration, even if such a celebration goes against his strongly held religious belief that marriage is between a man and a woman?
The concept of public access comes up here. Generally speaking, a restaurant open to the public is required to serve whoever walks in—unless the person’s behavior, dress, or something else is in violation of the stated requirements of the place (“no shoes, no shirt, no service” for example, or “men required to wear tie and jacket”). Usually public access includes requirements for wheelchair access. Discrimination on the basis of hair color would be very bad for business, whether or not it’s illegal to act on such an irrational belief. It might be best if other employees simply distract their crazy boss when redheads come in—no government intervention needed. Otherwise, word gets out, and the business closes from lack of patrons.
Use of a special room is an additional service, subject to scheduling and other decisions at the discretion of the restaurateur. It would be hard to say the restaurateur must provide this special service any more than requiring him to provide something off the menu, or purposely burnt. He might choose to oblige, or he might decide it wouldn’t be worth the risk to his reputation, or simply not worth the bother.
If this freedom should be removed when the motivation of the restaurateur is considered “anti-gay,” how is that different from other beliefs? Who decides what the motivation of the restaurateur is, and when it crosses a line that disallows him the freedom to serve or not serve?
Some confusion has arisen based on whether a business is “public.” A public business is a government owned entity, such as a public utility company or transportation company (subway line, bus line). A business that serves the public is still a private business; it depends on ownership, not on who is served. A public business pretty well must serve all the public, because the people own it. A private business is owned by private citizens, even in the form of a corporation. It provides goods or services in exchange for money, in free and open trade.
But some states have identified a difference based on location: a baker with a storefront must do what anyone walking in requests. While a baker working out of her home is not held to that requirement, because her cottage business is not “public.” What if there’s a little storefront at the house? Do you lose the right to decide what services you provide when you put out a sign?
1) Suppose a landlord owns a building renting out medical office space. Is this landlord required to rent space for an abortion clinic, even if the building owner has strongly held religious objections to abortion?
2) Suppose a woman runs a boarding house, where she provides one or two meals a day, and roomers share bathroom facilities. Can she insist that boarders be either male or female and refuse whichever she’d rather not have?
3) Suppose a man advertises for a man to share the rent in his two-bedroom apartment. A respondent to the ad is a homosexual male. Is the man required to accept this respondent, even if he’s uncomfortable living with someone who might view him sexually?
4) In the above scenario, is a person required to rent to someone who has different moral standards—uses drugs or alcohol that the renter disapproves of, or is promiscuous (even if agreed to keep it outside the apartment)?
5) Is a landlord or apartment complex manager allowed to discriminate against homosexual renters? How about discriminating based on other moral objections?
Laws related to property renting differ, mostly related to intimacy. A person has a lot of control over sharing their own living space. There are rental anti-discrimination laws on the books. But, depending on location and stated purpose of the place, some restrictions may be allowed. For example, renters can discriminate against families with children, if they’re set up to accommodate older couples and/or singles. Many renters discriminate against pet owners.
So, here’s the simple answer: requiring someone to perform a service against their strongly held beliefs is slavery. If we’re against slavery, we’re against such coercion.
Does that mean we should even do away with anti-racial discrimination laws? I’m not ready to completely go there, because I didn’t live in a place where people actually oppressed based on race, while the idea was supported by the community. The real answer is changing people’s hearts.
But pretending that the coercion to celebrate whatever the homosexual agenda says we must is a particular threat to our freedom. They aren’t logically comparing themselves to former slaves and subjects of racial discrimination. They are insisting on the power to enslave free citizens to do their will. Homosexual activists (a small subset of homosexuals and their allies) are the pro-slavery lobby of our day.