Equal protection? Piece of cake!

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?

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