It won’t surprise the reader to learn that I adhere to a religious tradition, which holds that: (1) Sex outside of marriage is wrong, and (2) marriage between a man and a woman is ordained of God. As a legal matter, the First Amendment protects religious freedom, while the Fourteenth Amendment prohibits discrimination.
Religious convictions notwithstanding, if a same-sex couple asked me to provide services to celebrate their union, I would probably agree to do so: nothing in my religious tradition mandates that I force people to accept my paradigm, and I’m too practical to lose business in such a case.
That said, I understand the objection of those who believe that doing business in such a case would violate their religious conscience, and I support the right of business owners to refuse such business for that reason.
On the other hand, I would still allow couples refused such business to sue. However, I would require that the couple prove that their reasonable efforts to obtain a similar service at a similar price were unsuccessful.
Further, I would limit recovery to the difference between what the refusing business owner would have charged them and what the accepting business owner did charge them (along with such related expenses as travel). The couple refused business is free to seek a willing provider, while an unwilling provider’s right of conscience still is respected.
The battle-lines are clearly marked. One side cheers, “Fourteenth-Amendment Equal Protection!” while the other cheers, “First-Amendment Free Exercise of religion!” But I don’t believe any other solution than the one I have proposed would adequately protect such free exercise.
If the Fourteenth Amendment is interpreted to mandate that a business owner provide service even when doing so violates his religious conscience, then that renders First-Amendment supposed protection of free exercise moot.
To argue otherwise is essentially to say, in my view, that one’s “free” exercise of religion is limited to within the walls of his church on his holy day. As messy as it is to try to suss out religion’s proper role in public life, I don’t think that’s what those who crafted the First Amendment had in mind.
To borrow and slightly alter an old axiom, “A man forced to do business against his will, is of the same opinion, still.”
To those who argue that such a solution is like a step back to the segregation and discrimination of the Jim Crow south, I would say that isolated, nonsystemic, discrimination in fact is different than the formerly widespread, systemic, legal discrimination that the Fourteenth Amendment now prohibits.
It’s worth remembering, too, that however one feels about government and marriage, marriage was a religious institution for centuries before the government ever got involved. And theoretically, it’s possible to confer most all of marriage’s benefits upon a couple without marrying them.
One need not be a bigot, or to hate anyone, or to want to tear up the U.S. Constitution, to favor traditional marriage. Before one removes a fence, one would do well to ponder why it was erected in the first place.
Ken K. Gourdin is a certified paralegal. His opinions are his own, and do not constitute legal advice.