National Post In Matters of Conscience, Keep the Market Free


Other - Tuesday March 4th, 2014

Photo Credit: Flickr, Creative Commons, Gage Skidmore

No Flowers/cake/photos for You! Should individuals have the right to refuse their goods or services at Gay Marriages?

Alarmed by a serious potential loss of revenue through threatened economic boycotts by tourists and companies, Arizona Governor Jan Brewer has vetoed a bill that would have permitted business owners to refuse services to customers based on their religious beliefs.

Arizona is a state that seems to court widespread censure – in 2010 the issue was an anti-immigration law and in the 1990s a hotly-contested decision to deny Martin Luther King Day official status – but in the case of offering services for gay marriages, which seems to be the sticking point, many other states, not to mention Canada, have experienced or are experiencing the same ambivalence.

In Canada, Saskatchewan’s Court of Appeal ruled that marriage commissioners hired after the legalization of gay marriage in 2004 could not refuse to officiate over gay marriages, even if it ran counter to their religious beliefs, while the rights of those hired before 2004 to refuse were effectively grandfathered. There is logic in this decision. Someone applying to work for the LCBO, whose religious beliefs do not permit him to drink liquor, does not have the right to refuse to sell liquor to others. If one wishes to work for the government, one must understand that it is a job requirement to treat all citizens equally under the law; when the law changes, the job requirements change too.

But government and private enterprise are different animals. Government hirelings are not invested stakeholders in their enterprise. And the government has a monopoly on many functions. Where there is no choice in applying for a service, there cannot be a choice when providing it. Besides, individuals have rights and freedoms that governments don’t. Governments cannot sell pornographic films online, create violent video games, or ridicule pundits they dislike on Facebook. (They do run casinos, which many people think is unethical, but that’s an issue for another day).

In the U.S., most of the controversy has arisen over the rights of individuals running small businesses to refuse to sell their services to gay couples, specifically with regard to weddings. Their refusals have been erroneously in most cases, ascribed to homophobia. I say erroneously, because if homophobia were the issue, the owners would not sell services to gays, period. That is not the typical case. Typically, the owners will sell cakes or photographic services or flowers to anyone under all conditions apart from single-sex weddings. Indeed, they would happily sell their services or products to lesbians marrying men or gays marrying women. It is not gays and lesbians as individuals who provoke the refusals; it is the idea of contributing to what they perceive as a desecration of the sanctity of marriage that sticks in their conscience’s craw.

For example, in one Colorado case, a judge recently ruled that deeply religious bakery owner Jack Phillips had discriminated against a gay couple when he refused to bake them a wedding cake. The judge wrote that even though normally a citizen should have the right to deal with whomever he wants, in this case the court had to take into account “the cost to society and the hurt caused to persons who are denied service simply because of who they are.” (my emphasis).

But because of his Christian beliefs, the same bakery owner also refuses to sell Halloween-themed treats (and so would an Orthodox Jewish baker, as both believe Halloween to be pagan in character). Should we therefore assume that Mr. Phillips, who doubtless happily sells unthemed or other-themed cupcakes to children every other day of the year, hates children? It is clear in both cases that his refusal has nothing to do with “who they are,” and everything to do with strongly held religious principles. In the case of gay marriage, one can most assuredly believe marriage always was and always should be a solely heterosexual institution, which the state did nothing to create, and remain morally neutral toward homosexuality.

In New Mexico, photographers Jonathan and Elaine Huguenin argued they shouldn’t be forced to create images that tell “a positive and approving story” about a ceremony they feel is inappropriate. The state Supreme Court rejected that claim. But their argument is logically sound. It would not be sound if they refused to photograph an interracial wedding, because no religion forbids interracial marriage, even though many religious people are racists.

On the other hand, it would be sound if they refused to photograph interfaith marriages. My own rabbi will not officiate at interfaith weddings, although he will happily come as a guest. It isn’t about “who they are” in that case either; it’s about what marriage is for, and the optimal conditions under which a religious community thrives. Which is why parallels between the politically constructed “right” to gay marriage and inherent human rights owed to people of all skin colours serve only to muddy the waters on this issue.

And on the third hand (although I am against human rights tribunals in general), I believe a British Columbia tribunal was morally right in siding with a gay couple who were refused a room at a Grand Forks Bed and Breakfast because of the owner’s strict Christian beliefs regarding homosexuality. An innkeeper rents rooms. Any innkeeper who inquired into the marital status of his guests – one assumes this innkeeper also frowns on fornication and adultery, yet seems not to have taken steps to preclude such liaisons in his establishment – would not be open for long. In this case it is fair to assume that it is homophobia – “who they are” by nature – guiding his rejection, very far from the case of those who refuse services to gay weddings alone. This man is in the wrong business.

In general, the market must be left as free as possible where speech and association are concerned. Zionist printers should not be forced to print T-shirt logos encouraging the boycott of “apartheid” Israel. Patriotic booksellers should not be forced to carry books that peddle 9/11 conspiracy theories. Pro-life pharmacists should have the right to refuse to sell abortifacients.

Where there is a market choice, the right to refuse one’s own services for reasons of conscience, whether the state or the majority of citizens approves of the thinking behind that decision or not (even in the case of the Bed and Breakfast owner), should always be privileged over the state’s right to enforce compliance. It is better that some citizens feel offended some of the time than that all citizens feel potentially unfree all of the time.