Over the past year, two incidents have occurred that stretch the blur the boundary between personal rights and equal protection. A court ruling in New Mexico found that a photographer could not decline to provide services to a gay couples in commitment ceremonies because it violated the states Human Rights Act. The SCOTUS has upheld such acts as constitutional. Later, an Oregon court ruled that a baker could not deny services to a gay couple for a wedding cake. In both cases, state laws provide equal protection for gays and the denial of service for them is a violation. The question is, should it be?
On the one hand, discrimination based on race, gender, creed or sexual orientation is illegal. One should not be able to deny service to blacks, as happened under Jim Crow laws prior to the passage of the Civil Rights Act and Brown v. Board of Education. The same applies whether it's gender or creed or sexual orientation.
But should sexual orientation be considered to be equal to race, gender or creed? Arguably, race and gender are inherent characteristics, so those traits are separate from creed, which is something that a person can freely choose, unlike his race or gender. The question of one's sexual orientation is not settled, however, with some who believe that it's an inherent characteristic while others believe it's an acquired trait. More science is needed to definitively answer that question. I'm sure gays disagree with that.
Yet, unlike race and creed, for which there is no competing right, with sexual orientation there are people who oppose homosexuality in all its various forms because of their creed. It's not limited to just one group, either. By imposing this duty on purveyors of goods or services, it necessarily causes them to violate their religious principles. I"m not saying that gays shouldn't be able to contract with people of opposing viewpoints, but why should people be forced to violate their religious beliefs? Moreover, isn't this violative of their First Amendment rights?
I think a far more sensible approach is to allow those people who don't want to serve gays to refrain from doing so. The result is that gays will take their business elsewhere. The marketplace will determine whether those who don't provide service to gays will continue to prosper. As it is, there are communities where stores cater only to people of a certain culture, or only speak a certain language. Perhaps by opening their stores to other peoples they would realize greater profits, but these stores chose to keep their client base narrow. So be it. The same should be true for those who want to abide by their religious beliefs.
I understand the gays' arguments in these cases. They seem themselves as equal to minorities in the fight for equality. They have a point. The problem is that those who would not serve them are relying on their religious beliefs, for which there is scriptural support, whereas the bigots who would not serve blacks had no such religious support. Even so, the question begs whether the human rights of gays trumps the religious freedom of the purveyors. And aren't the religious freedoms of the purveyors part and parcel of their human rights?
Personally, I have no trouble at all representing gays. My faith teaches me to treat all people similarly. I am not to engage in homosexual activity, but I have no inclination to do so, so it's a mute point. Unlike some people, I don't judge people for their behavior unless and until it crosses the line into actual criminal activity that is designed to hurt or harm others. Homosexual behavior is personal, largely, and is either an inherent characteristic or something to which people gravitate. I've seen strong arguments for it being an inherent trait. That being the case, can I surmise that God didn't intend for it to happen that way? And if He did, then it must be acceptable to Him. I'm unworthy to judge one of His creations as inferior.
Even so, there are others who believe otherwise. I can't force them to accept my way of thinking. The First Amendment gives them the right to believe as they wish. I believe that right protects any manifestation it may take, including the right to decline to sell things to people whose lifestyles conflict with their religion.
Let the marketplace determine this. In a battle of competing constitutional freedoms, it should be a draw.
(c) 2014 The Truxton Spangler Chronicles
No comments:
Post a Comment