It’s not simply about denying service

A recent article from the RNS describes the efforts in Oregon to craft the bill that would legalize gay marriage in such away as to allow conscience protections for business owners.  The conscience protections being debated would allow private business owners who have a religious objection to gay marriage to refuse to serve gays.  Supporters are described as holding the opinion that business owners should not be required to serve everyone.

This, of course, leads to the immediate objection by opponents to the notion that this is no different from businesses being allowed to refuse service to blacks or other minorities.  The oft-leveled rejoinder is that homosexuality is not a Civil Rights issue since it involves at least a measure of choice (as a robust ex-gay community attests in spite of much persecution in an attempt to silence them) whereas things like skin color or ethnicity are entirely determined by genetics.  From here the debate usually devolves into unhelpful back-and-forth arguments about whether someone is homosexual by nature or nurture.

All of this debate, however, misses an important detail in the more well-known cases dealing with the conscience protections of private business owners (a Colorado baker, a Washington florist, and a New Mexico photographer).  Each of these and other similar cases have been presented by the national media as cases in which a private business owner refused service to a gay couple simply because they were gay.  The details were generally not further explored.  The business owners were presented as bigots who hated gays, end of story.  This narrative was even driven home in a special What Would You Do? with John Quinones on ABC in which hidden cameras caught patrons reacting in horror as a cafe employee refused to serve a gay couple simply because they were gay.

And yet, I can say with some confidence that the presentation of the “facts” in these cases is almost libelously misleading.  These business owners have served gay patrons many times in the past and in all likelihood will continue to do so willing in the future.  In fact, in each case the business owners were willing to do business with the gay couples.  The Colorado baker was ready and willing to sell a cake to the gay couple.  He had sold cakes to other gay individuals.  The New Mexico photographer was willing to take pictures of the gay couple.  I suspect she had taken pictures of other gay individuals on other occasions.  The Washington florist had done business with this very same couple on other occasions.  

So then, why the refusals in these instances?  What was different?  Did some visceral hatred suddenly rise up and lead to these harsh, intolerant rejections of these poor couples?  Hardly.  Well, what do a baker, a photographer, and a florist all have in common?  Answer: They are all artists.  In each instance these artists declined to use their artistic abilities to create what would have amounted to a celebration of something they each considered to be immoral, namely, gay marriage.  Again, in the case of the Colorado baker in particular he was willing to sell the couple a “stock” cake.  He drew the line at using his artistic abilities to go above and beyond the norm in such a way that would, again, celebrate something he considered immoral.

The real issue here is not at all whether a business owner can refuse service to whomever they choose.  These business owners were not interested in that question in the slightest.  All three had done so in the past and would certainly do so again in the future (assuming the persecution they have received at the hands of folks more interested in advancing the cause of gay marriage than in protecting their First Amendment rights has not soured them on the idea).  They were interested very simply in not using their gifts to celebrate something they oppose as immoral on religious grounds.  To frame this in any other way serves only to distract from the heart of the matter.

And the heart of the matter is this: When the government has the power to compel people to create speech they consider immoral on religiously justifiably grounds (as the New Mexico Supreme Court declared it to have in the case of the New Mexico photographer), we have a problem.  That is the real issue here.  Gay marriage simply provided a platform for it just as birth control is currently doing in another set of cases.  How much power does the government have in determining what is religious enough a reason to deviate from what it has deemed “good for society”?  Is it more important to not offend the feelings of a group of people or to allow people to exercise religious beliefs that deviate from what the culture deems acceptable?

Oregonians can try and split hairs on how to legally allow businesses to refuse to serve gays once they legalize gay marriage, but that approach will only give the media a platform to unfairly vilify business owners like these three by highlighting the few bigots who would refuse service simply because a patron was gay.  And, it will ignore the real issue.  As a people who are committed to the truth, let us work to make sure the truth is out in the open and not hidden behind the smoke screens of culture.

Jonathan Waits

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Jonathan is the pastor of Central Baptist Church in Church Road, VA. He's the husband of one beautiful woman and the father of three active boys. A graduate of Denver Seminary, he loves connecting the dots between the Christian worldview and culture.

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  • coreyf_4

    Running a business/providing a service is not “creating speech.” But let’s assume for the sake of argument that it is. You say that this is not comparable to refusing to serve someone because of their race. But by your logic, couldn’t a photographer say that s/he believes that interracial romance is immoral and therefore refuse to take engagement or wedding photos of the couples because doing so would “create speech” that interracial romance is beautiful and worthy of admiration?

    We must quickly squash this new, fabricated idea that religious freedom extends into the realm of what we can deny another person. That was never the intent. Equally troubling is the idea that businesses can do (or refuse to do) whatever they want on religious grounds. Businesses can refuse service, to be sure, but they only have the right to do so if their ability to conduct business is being hindered or for other objective reasons, not if the owner’s religious sensibilities are offended. It is unprecedented to claim that businesses engaged in commerce and subject to the regulations thereof get religious freedom exemptions. I’m not sure you and others have contemplated the possible implications of this. Kansas House Bill 2453 seeks to allow businesses to deny anything based on “sincerely held religious belief.” Who gets to define that? It would either have to be the subjective individual (which shields it from any challenge) or the state (and I don’t think any of us want that).

    • Jonathan Waits

      Coreyf_4, thanks for your thoughts. We don’t quite see this issue in the same light, as you can perhaps tell. I agree that running a business itself is not necessarily creating speech, but sometimes one of the services a business provides is to create speech on behalf of someone else. Here’s why
      this is: when a professional photographer takes a picture as part of her profession, she is creating an original piece of art. She is using her artistic ability to create something that was not there before. As
      a case in point, my wife and I have some of our wedding pictures hanging up as pieces of art in our house. This is an act of speech. It is not vocal, but I think we can agree that not all protected speech is vocal. The same logic applies to bakers, florists, and other similar professional artists. Creating speech is part of their business. Is this speech not protected by the First Amendment?

      As for the racial issue, I would argue that my logic would not allow for that case. There is not to my knowledge a religion with a widely recognized opposition to interracial marriage and so the hypothetical is moot. Perhaps a more relevant example would be this: Should a Hindu caterer be required to cater an event for the local cattleman’s association? Or how about a Jewish or Muslim caterer being hired by the local pig farmer’s club? Their opposition to such catering jobs (which,
      let us assume, would include lots and lots of beef and pork) would be solely rooted in their religious sensibilities. On what other objective grounds might they oppose these? Should they not be able to refuse these services without fear of lawsuit?

      The fact is that in today’s religious liberty climate—worse in this nation than it has been at any other
      point in our history—even businesses need protections. Consider: in the New Mexico photographer
      case, when she politely refused to shoot the wedding (not take pictures generally, just shoot the wedding) and explained why, there were some 75 other photographers in the area, most of whom would have likely been happy to take the job. Instead of showing tolerance for this opposing viewpoint, though, and recognizing that people should be allowed to act in accordance with their consciences—as they were doing—the offended couple decided to sue to force her to do something she had a strong, religiously-motivated desire not to do. That seems both intolerant and unjust, don’t you think? The viewpoint expressed here is that it is not enough for you to tolerate my lifestyle preferences; you have to show active public support for them even if you privately disagree. Whether we are talking about an individual or a business, this is problematic.

      Finally, I have considered some of the implications of this and it will require some careful legal work to get these kinds of protections written in such a way that they protect what they are designed to protect without giving license for abuse. I have read neither Oregon’s nor Kansas’ proposals, but I suspect they have been written pretty hastily and more careful reflection would be wise. That said, with the pace at which the gay marriage lobby is going right now, and with no thought to the religious liberty implications of their issue, the pressure is ratcheting up for Christians who oppose the issue and find their opposition increasingly opposed to protect themselves. Wisdom cries for caution, but when one side is throwing caution to the wind, the temptation lies there for the other to do the same. Thanks for your engagement with me!