Gay Rights vs. Business Rights

Janet has been having a debate with someone recently (I believe she said her sister, but I focused more on the topic than the person, so I could be wrong) and as often happens in marriages, when she’s having an interesting discussion or point of debate, she’ll bring it up with me.

I believe she and I disagree on this one, but it made me want to sit down and write out my position, just for the heck of it.

At issue is the recent ruling (or were there several?) in which a wedding photographer was held liable for refusing to photograph a gay wedding in a state in which gay marriage is legal. It’s been a few weeks, I don’t recall the specifics, but that’s enough to have the general philosophical debate.

Essentially, the question is whether a business should be allowed to choose its clientele or whether a public business has a responsibility not to discriminate, and I fall into the latter category while firmly understanding and sympathizing with the former argument.

The thing is, to me it’s a matter of slippery slope. If I open up a little Mom & Pop style restaurant and decide that I don’t want to cater to red haired people, that should be my right, right? I can do business with whomever I choose to do business with, and it’s no one else’s business. If I don’t want to work with someone, they can go to someone else!

But… suppose there’s a general bias against carrot tops in my area, and so it’s not just a matter of one person’s personal bias but an institutionalized problem. Suppose every other restaurant in the area decided to follow suit? Now it’s not a matter of the redheads avoiding one bigoted restaurant, it’s a matter of them being systematically discriminated against in most restaurants, and as a class feeling like second class citizens because every individual restaurant sticks to their right not to serve them.

I use restaurants, of course, because if you substitute “black skin” for “red hair” you have a situation which is no longer hypothetical but which actually happened in our history. Restaurants, schools, bathrooms, theaters, you name it. Individually, at each establishment, it would seem to be the right of the proprietor to serve only those he or she chose to serve. But when it rises to the level of a significant fraction of the similar businesses in an area, that’s when the discriminated-against group’s rights begin to be infringed upon to the extent that their protection trumps the rights of the business owner.

So, too, is the case (in my opinion) with homosexuals. The couple in question was not engaging in illegal activity, they were having a perfectly lawful marriage by the laws of their state, and were simply trying to hire a wedding photographer. And I don’t recall where they lived, but I can easily imagine areas of this country where, left free to “choose their own clientele”, a gay couple could get married but be unable to have a professionally produced photographic record of their joyous day. Since we still have a significant amount of institutionalized homophobia in this country, the discrimination laws have to kick into effect.

But here’s the key: I firmly believe that the photographers in question could have accomplished the same thing without causing themselves a legal hassle, in one of several ways.

First, if they had chosen to specialize in one religion. “We’re Roman Catholic and we are most familiar with and work best with weddings of that religion. If you’re of another religion, you’ll probably want to find someone else.” That would seem to me to be a reasonable specialization and one which probably would not engender any lawsuits, and it avoids the whole “We don’t approve of gay marriage” issue, because if you only do Roman Catholic weddings and the Roman Catholic church won’t perform a gay marriage, then the answer is “I’m sorry, but unless you’re married in the Catholic church, we really aren’t the people for you” and avoiding the whole issue of sexual orientation entirely.

Second, though, I’d bet that they were not polite in their refusal. The average person doesn’t go out looking to sue someone for relatively minor infractions, and because there was only one suit, it does appear as though the couple in question was able to come up with another solution. And so I’d bet that if the photographers in question had said “y’know, I’m happy for you, and I’m not telling you how to live your lives, but as a photographer I have to tell you that I’m not sure I would be able to do my best work for you. I’ll take the job if you really want me to, but I’m afraid my personal feelings on the subject matter might get in the way of my doing a professional job, so you might want to find someone else”.

Of course, if you go that route you have to be willing to follow through and do the job if the people still want to hire you, but I don’t believe you’ve done anything actionable at that point, and I find it unlikely that too many people would still want to hire someone under those circumstances. If I were to get married again and be looking for a photographer and the one I went to said “Y’know, I’ve never quite been able to make bald men look good. I’ll take the job if you really want to hire me, but I think you’d probably be better off asking someone else, because my pictures of bald men always come out making them look bad”, I think I’d probably go find someone who didn’t have that objection.

But ultimately, the problem comes down to the likelihood of institutionalized bias. Back to my redhead example, I’d probably be the only restaurant you could find in the nation refusing to cater to them, and so it would hardly be a systemic problem, and thus there is no need for hair color to be listed as a feature protected from discrimination.

But when you still hear, far too often, about some teenager being severely beaten or murdered or in other ways badly harmed because of their nascent homosexuality, it is clear that, in some areas of this country at least, discrimination against homosexuals is very much a systemic problem.

And thus, sexual orientation joins gender and race and physical handicap on the short list of personal features which are protected. Because it’s not about my rights vs. yours; it’s about your right to be treated as an equal citizen of this country overriding my right to feel personally distasteful over your choices.

Liam.