The anti-equality movement in Oregon is now rallying behind this initiative to allow businesses to boycott same-sex weddings. Before getting into the weighty philosophical implications, let’s pause to marvel at the trajectory of the “traditional marriage” forces. A mere ten years ago, the traditionalist side strode the world like a Colossus, deciding presidential elections and amending state constitutions in every corner of the country. Now they are scrambling to preserve the prerogatives of homophobic bakeries.
Schadenfreude aside, I think these issues are somewhat more complicated and nuanced than we acknowledge. I understand the instinctive response, the urge to declare that any form of discrimination should be illegal. But I think it’s worthwhile to unpack the underlying principles here.
On one level, the whole controversy seems mildly ridiculous. It’s difficult to imagine that a conservative florist is really all that traumatized by arranging centerpieces for a gay wedding. But at the same time, I don’t think a gay couple is all that traumatized by having to turn to one of the 99.999% of florists who are gay-friendly (often to the point of being just plain gay). The low stakes make me suspect that these skirmishes are more of a proxy war, sort of like the way the flag-burning dispute waged for years over a grand total of two actual incidents of flag-burning (the second of which was done in protest of flag-burning laws themselves). As with flag-burning, the larger issues implicate ideas of sanctity and dignity that are more significant than the physical facts would suggest.
It is without question an indignity for anyone to be refused even mundane services on the basis of race, gender, creed or sexual orientation. It’s even more galling when the law’s protection is uneven. Under the current state of the law in many places, a Mormon can refuse to serve gay customers but a gay person cannot refuse to serve Mormons. And there have been gay people a lot longer than there have been Mormons.
At the same time, anti-discrimination laws have always offered some zone of protection to the sensibilities of bigots. Fair housing laws have typically incorporated what is known as (in a phrase that’s sort of insulting to the Irish) the “Mrs. Murphy exception,” meaning that someone taking in boarders in a single-family dwelling may people away based on race, gender or other protected status. It seems like a reasonable compromise to me, in the context of disassembling an entrenched system of enforced apartheid, to leave some room for individuals to “opt out” of the overall requirement of equality. Laws that make some concession to human imperfection tend to work better in a pluralist society, and the slow dying out of hard-core racism has turned those exceptions into dead letters over the long haul.
And if you’re still having trouble feeling empathy for the other side, a few thought experiments might help. Suppose you are were asked to cater a Promise Keepers convention, or a reparative therapy conference, or an anti-immigration rally. Wouldn’t you want the right to say no? Wouldn’t you want the chance to refuse to support, even in an inconsequential way, views that you consider wrong? Like it or not, millions of people consider same-sex marriage to be wrong. I think they’re mistaken, and I hope they come around in time, but I recoil at the idea that they should be compelled to take part in an event that they don’t support.
And if the response is “they’re just baking a cake” or “they’re just arranging flowers,” I think that’s the wrong way to look at it. First of all, I think the attitude reflects a bit of class bias. When I was a practicing lawyer, I had the right to refuse to take cases involving arguments I found abhorrent. I would have been outraged if the law required me to advocate positions I found morally objectionable (for example, defending an employer who fired someone for being gay). I don’t think people who cook or bake or arrange flowers are less entitled to withhold their labor.
I also think we need to take the idea of a wedding seriously, since that’s why we’re fighting this fight in the first place. A wedding isn’t just a party; it’s a ritual packed with social and legal and philosophical meaning. Participating in a wedding – whether as an officiant, a guest, or a contractor – does implicate each person in some degree in the larger meaning being constructed. No one should be compelled to take part. Who wants a wedding cake frosted with self-righteous indignation?
I believe – and I suspect those on the other side agree in their heart of hearts – that this will all be moot in a generation. The idea of a business flaunting its hostility to same-sex couples will seem downright bizarre to our grandchildren, a self-destructive fringe. Let them defend their ever-shrinking barricades, saving their cakes and flowers for the righteous. I’d rather have my flowers arranged by a self-respecting queer, as God intended.