The Daily Caller

The Daily Caller
A gay couple holds hands during a rally in San Diego, California June 26, 2013. REUTERS/Mike Blake A gay couple holds hands during a rally in San Diego, California June 26, 2013. REUTERS/Mike Blake  

Most gay marriage religious exemptions are not discriminatory

Photo of David Benkof
David Benkof
Freelance Writer

In the last week or so, many Americans have read reports of alleged Republican efforts to legalize discrimination against gay people in the name of religious freedom. Surely, it’s wrong to use the Bible to refuse public accommodations to LGBT Americans, right?

Right. But overwhelmingly, these laws don’t permit that. Rather, they protect people dissenting from government acceptance of same-sex marriage from being forced to use their talents to express viewpoints other than their own.

It may be a subtle point, but it’s crucial. Most traditionalist Americans (such as the photographers, cake bakers, and florists recently in the news) are perfectly happy to provide services to customers of every sexual orientation. But people’s LGBT identities aren’t the same thing as their definition of marriage. Making someone promote a marriage they consider wrong – and perhaps not even a marriage at all – is a kind of discrimination the government mustn’t engage in.

Laws shielding religious Americans from sanctions for behaving consistently with their conception of marriage have been debated at the federal level, as well as in states such as Tennessee, Idaho, Mississippi, South Dakota, and, most recently, Kansas and Arizona. (Oregon will vote on such a ballot initiative this fall.)

Now, with few exceptions (South Dakota’s is one), these proposed laws do not authorize religious people to refuse service to individual gays and lesbians. Despite activists dubbing them “Turn the Gays Away” bills, they simply safeguard people from having to pretend they support gay marriage when they don’t.

The Kansas bill, widely reported through the Associated Press as “providing a faith-based legal shield for people who refuse to provide services to gays and lesbians,” does no such thing. Instead, it keeps people from having to support “the celebration of any marriage, domestic partnership, civil union, or similar arrangement.” Nowhere does it authorize discriminating against individual gays.

And Arizona’s bill makes a few technical changes clarifying the meaning of the state’s Religious Freedom Restoration Act, but it does not endorse bias against LGBT people (as opposed to same-sex ceremonies). Nonetheless, the top Democrat in the Arizona Senate falsely claimed in a statement that gays would be “members of a separate and unequal class under this law because of their sexual orientation.”

Here’s a helpful way of looking at such legislation: gays have, and deserve, the Constitution’s Fourteenth Amendment equal protection of the laws. But the First Amendment gives traditionalist Americans freedom of speech. So traditionalists shouldn’t be allowed to demand that the government let them pick and choose which Americans to serve, but gays shouldn’t be allowed to insist the government punish people who express a point of view contrary to their own.

Some supporters of gay marriage say they don’t understand how providing wedding cakes or flowers is somehow free expression or the endorsement of someone else’s ideas. Of course they don’t understand – they’re not the people being dragooned into creative acts they abhor. But flowers and cakes for weddings are ways of celebrating those occasions, and it’s wrong to make someone celebrate something they don’t believe in.

A different example might be useful. Non-discrimination laws doubtless apply to musicians. If a Christian rock band reluctantly agrees to a same-sex wedding gig out of fear of legal retribution, and the brides make a set list including “Same Love,” “Born This Way,” “Glad to Be Gay,” and “Let Them Love,” what should the musicians do? If they refuse, they might be sued or face fines. But if they agree, they’d be forced to use their vocal talents to advocate ideas they don’t share. It’s a Hobson’s choice that seems un-American.