Equal protection? Piece of cake!
March 4, 2014 4 Comments
Sugar Daze / Foter / CC BY-NC-ND
The week after Arizona governor Jan Brewer’s vetoed “anti-gay” bill SB 1062, The Atlantic ran this headline on its story feed: “How Religious-Freedom Laws Could Come Back to Hurt the Faithful.” Jonathan Merritt lays out a hypothetical turning of tables, where a Unitarian refuses service to a Baptist. Then he asks:
Would conservative Christians support this storeowner’s actions? Because if not, they better think long and hard about advocating for laws that allow public businesses to refuse goods and services to individuals anytime they believe the person’s behavior conflicts with their sincerely held convictions.
The moral lesson seems simple and airtight:
If you are able to discriminate against others on the basis of religious conviction, others must be allowed to do the same when you are on the other side of the counter.
But was the bill really about legally enshrining anti-gay discrimination? The actual text makes no reference to sexual orientation. Read the bill, it’s short. Neither does it say anything about discriminating against a customer on the basis of the customer’s religious belief.
It is very easy to imagine a criterion where a business owner may refuse service: when the requested service violates her conscience. This can happen when an artist is forced to render service to an event she personally finds unconscionable. Maybe she is a florist, photographer, or baker; these people have already been sued and boycotted for refusal of service.
Consider if a caterer, who is a strict vegan by conviction, were forced to serve meat to carnivores. That would be a clear violation of conscience, unjustified and wrong. Some would argue that she should not be in the catering business in the first place, but that’s illiberal and hard-hearted.
However, if the caterer were forced to provide a vegan meal to carnivores, that would pass muster according to the correct understanding of equal protection.
Refusal of service based on an immutable trait of the customer is one thing. But refusal of service based on the impact the service would have on the producer is one possible rational basis for the right to refuse service.
Why hasn’t the mainstream media picked up on this?
About Lewis W
Cogitating Duck 
I know my view on this kind of issue is unpopular, but here goes.
I firmly believe business should be permitted to discriminate against whoever they wish, for whatever reason they wish. Businesses ought to have the freedom to refuse service or arbitrarily set higher or lower prices at their pleasure.
This freedom applies to services rendered I mean, not cost of commodities. For example, I believe a salon ought to be permitted to charge an inflated fee for providing services for their male clients. I do not believe they ought to be permitted to charge an inflated price for nail polish, files, or other products. Another example, a violin teacher ought to be allowed to charge more for violin lessons for either boys or girls, but not for the cost of the violin or sheet music. And a grocery store should not be allowed to charge differently for milk, eggs, or bread, but could be permitted to charge differently for bringing your purchase to your car and loading it for you.
Though I believe businesses ought to be allowed to discriminate for services provided, that doesnt mean I’m endorsing discrimination as morally good per se. Freedom to run your business as you best see fit should be a right in virtue of it being yours. Issues like this work themselves out in the free market.
Remember Rosa Parks did not file a lawsuit, and neither did the college freshmen who were refused service at a Woolworth lunch counter. Businesses who practice discrimination are eventually shamed into equitable business practice.
If Christian businesses do not want to serve homosexuals or service same sex weddings, that’s their perogative. Me, I wouldnt service a same sex wedding or commitment ceremony, but I have no problem providing service to homosexuals.
John, I appreciate your comment. I’ll try to one up you on your unpopular view. I don’t think business has a right to discriminate for whatever reason they wish. I know you said “should be permitted.” Metaphysically, rights don’t exist. God by his grace only has provided circumstances such that we can thrive spiritually and materially on Earth. Looking back, we can see certain conditions serve the human, temporal good of material and spiritual flourishing. The right only comes in virtue that free trade and free speech do actually promote human flourishing. Conceivably, those conditions could change, but to me it would seem any such move would simply be tyranny, and grossly incompatible with human nature as it has always been.
I wonder what would happen if the Jack Chick Tract organization demanded that a hypothetical Dawkins-Harris Printing Company produce copies of tracts denying evolution and decrying atheism.
We need to leave each other space to be different. To print, or not to print, as conscience dictates. To bake or not to bake. To photograph or not to photograph.
To quote one of my least favourite people, in one of his more lucid moments: “The policy of letting a hundred flowers bloom and a hundred schools of thought contend is designed to promote the flourishing of the arts and the progress of science.”
I agree, JB. The crux of gay rights overreach is that political progressives have christened their private views as public, and insisted that businesses are wholly public things, subject to their private views of justice. Like critical race theory. All the more I am devoted to pointing out the gaps in logic that occur in theorizing and implementing those views. The academic departments, the opinion column, the courtroom, the legislature; we need hands on all fronts.