In 1964, Congress passed a new Civil Rights Act that, among other things, banned discrimination on the basis of race, color, religion, and national origin in "public accommodations." Public accommodations are those entities, whether public or private in ownership, that are generally open to the public. Hotels, restaurants, retail stores, service stations, educational institutions, and recreation facilities are all examples of public accommodations, while private clubs and religious institutions are not.
The new law was squarely aimed at ending not only the official discrimination enforced by state laws mandating "separate but equal" (but in practice quite unequal) facilities for racial minorities, but ending the de facto segregation that prevented racial minorities from fully participating in the public commercial life that is part and parcel of our freedom.
Before the 1964 Act, it was perfectly legal for a hotel to refuse to rent rooms to blacks, or for a restaurant to refuse to serve them, as a policy of discrimination. Such policies made it difficult if not impossible for racial minorities to travel and to engage in the ordinary types of commerce that whites took--and take--for granted.
I am very much in favor of a general policy of freedom, whereby individuals are entitled to choose how they interact in our society, with whom, and on what terms. We ought not force people to do things they would prefer not to do, if it can reasonably be avoided. Some acts, like paying taxes, have to be compulsory, because if they were not compulsory, it would be impossible to carry out some of the necessary functions of the government. We might disagree about which functions of government are necessary and which are not, but I expect that everyone agrees that some government is necessary.
If nothing else, we need a government to enforce our rights and freedoms against those who would infringe them. Every game needs umpires.
If you look closely at our system of government as it relates to guardianship of our rights, you will begin to recognize that we often must make choices when rights are in conflict. In such situations, a rule of reason tends to apply; as a society, we choose to resolve conflicts of rights according to many factors, with fundamental fairness as our guiding principle. Some rights are more important than others, or are more clearly defined than others, or are more fundamental to the ordered liberty that makes our culture what it is than others.
When Congress passed the Civil Rights Act, it altered the general proposition that those who seek to serve the public in commercial settings have the right to refuse to serve any individual member of the public. An alteration of that proposition was necessary because the law as it stood before then made it impossible, or nearly so, for members of racial minorities to exercise their own rights. Americans have the right to travel. When a person travels, it is necessary to eat and to have shelter for the night. The inability to obtain those things easily makes the exercise of the right to travel practically impossible, or at least often painful and dangerous and expensive.
I think I have made it clear that I am very much opposed to racial bigotry. But my opposition is one of social pressure, not legal pressure. It should remain legal for a person to hold bigoted ideas, as repugnant as those ideas might be. If we cannot convince people to lay down their ignorance willingly, then so be it. The cure for ideas that you do not like is greater expression of ideas that you do like.
Still, there is a conflict of rights between the bigoted hotelier on one hand, and the black traveler on the other. One must give way to the other.
One of the growing pains our society has experienced in recent years is rooted in the sea change of opinion on homosexuality. I am proud to say that as Americans we have, by increasing majorities, come to recognize that greater recognition of the rights of homosexuals has not spelled doom for our society. It is good to know that our collective moral compass still points toward equality. We are unfortunately not unanimous in this view, and we probably never will be. We aren't even unanimous about racial discrimination. But most Americans want, more than anything, to live as they choose and to prosper, and we are content to allow others to do the same. Most Americans don't care for discrimination as a general rule.
There is a movement among the redder states to recast the conflict of rights, and the resolution that appears to be the most popular and the most constitutional at present, as an infringement of religious freedom. No doubt, for many Americans, religion is the most important influence informing their views of homosexuality. As I have written here and elsewhere, for reasons that are not clear to me, homosexuality receives highly disproportionate attentions from religious conservatives. The reality is that the Christian religion in particular contains precious little to say about homosexual orientation, preference, and practice, in comparison to topics that are relevant to everyone. A casual observer of the rhetoric of these people, who was otherwise unfamiliar with Christianity, might wonder if it was a cult centered on sex.
The tendency at present appears to be headed toward a nationwide recognition that consenting adults of the same sex have the right to have their marriage sanctioned and recognized by the government, on the same terms as different-sex couples. It will take some time to get there, but the Supreme Court has lit the pathway.
If homosexuals may marry, that means that the commercial wedding industry--the planners, the bakers, the officiants, the florists, the rental houses, and so forth--must grow to accommodate them. Because most of these people like money, they are more than happy to accommodate homosexual couples. Perhaps they are even eager. But there is a core of bigoted people who are no doubt sickened by the prospect of seeing too grooms atop a wedding cake. Perhaps these people are even sincere in their religious belief that homosexual marriage is wrong.
As a society, we can cajole them, we can boycott, we can do everything we can socially to convince them that their views are wrong. But can we compel them to act against those beliefs, by forcing them as public accommodations to serve the gay community they loathe?
To resolve this question, I have to clarify one small point. When it comes to religious institutions--specifically churches--the right to determine whether they will solemnize any particular marriage is essentially absolute in my view. Just as the local Catholic church can refuse to allow divorced people to marry in their facilities, they should be able, without explanation or legal action, to refuse to allow a marriage of homosexuals in their facilities.
But what about the baker who specializes in wedding cakes? That is a tougher question. I have to admit that my opinion on this point has not always been where it is today, because I have had a hard time telling a person that he must act.
But the reality is that the baker has chosen to engage in a commercial business that accommodates the public. Religious rights are important, but the baker does not bake out of religious conviction or imperative. I'm not aware of any religion that requires commercial baking as one of its tenets. The baker has chosen to enter a public market for his services. The people who are marrying are, by contrast, exercising a fundamental right of Americans. The baker must yield, and there is nothing wrong about requiring him to do so.
Arizona's legislature has passed a bill--and several other states are considering laws--that would elevate the baker's so-called religious rights over those of the marrying couple's, by enshrining in law the right to discriminate against homosexuals as a matter of religious conviction. I have my doubts about the constitutionality of such a bill. After all, the Fourteenth Amendment prohibits states from denying the equal protection of the laws to persons within its jurisdiction. This legislation creates a classification of persons and expressly authorizes discrimination against them. Such legislation does not lift up the rights of the religious. It uses religion as a prostitute for bigotry, and makes a mockery of it in the process.*
* - If you need some textual justification for why it's OK for a Christian baker to bake a wedding cake for a homosexual wedding, I suggest Matthew 15:21: "Render unto Caesar the things that are Caesar's, and to God the things that are God's." In that passage, Jesus is discussing the payment of Roman taxes by Jews. The Roman government of that time was multi-theistic and pagan in nature. If the payment of taxes to support such a government were sinful, Jesus's command would certainly be different. Baking a cake for a homosexual wedding no more endorses the solemnity of that wedding than the payment of taxes to Rome endorses the official religion of the Roman Empire.
Judging from the outcry against this legislation, I expect that the governor of Arizona will veto it. After all, even people who are willing to tolerate bigotry draw the line when it begins to cost them money, and all indications are that it will cost Arizona millions of dollars to indulge this bigotry. The people of Arizona deserve a government that guards their real rights, instead of ginning up fake justifications for justifying discrimination.**
** - I have no doubt that those who opposed the 1964 Civil Rights Act could have come up with some ridiculous religious justification for continuing discrimination. That does not make discrimination the exercise of a religious right.
But even more importantly, this legislation almost certainly represents the death throes of official discrimination against homosexuals. When the anti-gay movement had the majority of what must almost certainly have been an uninformed public, it could be satisfied with keeping gay marriage illegal. That movement is now on the run, and it is doing what it can, by any means necessary, to protect itself. We can expect more of this nonsense as time goes on. Fortunately all that is required is to keep batting it down.