Gays Seeking Goods and Services, and Business Owners Seeking Protection of Conscience Rights: One Modest Proposal for Forging Detente Between the Two Groups
By Ken K. Gourdin
Salt Lake City’s Deseret News has a story on the apparent erosion of support among members of the Church of Jesus Christ of Latter-day Saints (popularly known as Mormons) for business owners who believe they should have the right to refuse service to gays on religious grounds. See the story here (this and any other links last accessed June 30, 2017):
I’ve stated this position on the Blog several times before, so if I risk being redundant (or even if I risk being ridiculed) here; so be it. That said, I commented as follows:
If I owned a business which provided such goods or services, and if someone asked me to provide them for a gay wedding, I would probably agree to do so: Nothing in my religious tradition mandates that I force customers to accept my paradigm, and I would probably be interested in maintaining community good will. (I might draw the line at, e.g., decorating a cake with “gay-themed” items, but big deal: Buy your own plastic, gay, bride and groom and feel free to place them atop the otherwise nicely-decorated cake’s top tier).
However, I also understand the objection of those who would decline such business on religious grounds, and I think they should be free to do so. The catch is that I would still allow people refused such business to sue for discrimination, but I would limit recovery to the difference between what a refusing business would have charged and what an accepting business owner did charge, along with related expenses. That would protect both gay rights and business owners’ conscience rights. I don’t think such a position is a step back to “Jim Crow”: Isolated, episodic, de facto discrimination is not the same as entrenched, legally-allowed, de jure discrimination.
Yes, the historical antecedents of invidious discrimination (such as, e.g., discrimination based on race) make this topic an emotionally charged one. But the denial of service by the religious cake-baker to the gay couple is different in several respects from the historic denial of business services based on racial discrimination. While such characteristics as race are immutable, sexual orientation varies along a continuum, and in many cases, it is much more fluid than race: One dies with the race one was born with; not necessarily so for sexual orientation, which may vary across a lifespan.
And one need not be a bigot, nor need he hate anyone, nor need he want to tear up the Constitution, to favor traditional marriage, even in a post-Obergefell-v.-Hodges world.