Governor Jan Brewer of Arizona, by vetoing a bill allowing a religious exemption to merchants to provide services that would violate their religious convictions, has restored a moment of sanity into a dangerous strategy orchestrated primarily with those opposed to gay rights, including gay marriage. No doubt, economic pressures and threats of boycotts from outside Arizona, played a role in swaying the governor’s mind. But this is only a momentary relief in what is a very dangerous initiative to exploit religious freedom where it does not belong.
When it comes to the freedom the United States more than any country on the globe bends over backwards to ensure that religious conscience is respected. Indeed, behaviors that would be illegal if undertaken on the basis of secular rationales enjoy a religious exemption if enacted for religious reasons. I am thinking of laws that, for example, permit Amish children to end their education at 14, and allow practitioners of Santeria to engage in animal sacrifice. Some of these carve outs are pernicious, such as giving a pass to parents who reject medical intervention for their children on religious grounds (think Christian Science) even if it leads to chronic impairment or death of the children so neglected. Opting out of vaccinating their children is a related example with highly destructive individual and public consequences. Some progressives may see specific religious exceptions as positive. I am thinking here of military conscientious objection. Others may be relatively harmless.
But the employment of religious motives to deny services in the marketplace to members of the public is of a different order. In the first place, it violates the principles that govern public accommodations that was a major political and social victory of the civil rights era. Such values have been ingrained in American life for half a century, and when it comes to race are no longer in debate. The public market is simply subject to different rules, and this is as it should be. Secondly, allowing merchants to provide services to whom they choose based on their individual religious criteria, opens the door wide for social anarchy. And needless to say is a powerful refuge for bigotry.
The United States is a religion-making machine and there are hundreds, if not thousands, of religions in America, each subject to their own personal interpretation. Our commitment to religious freedom requires that the government take a hands-off approach to assessing which beliefs are legitimate (or legitimately religious) or not. And this is as it should be.
Gay marriage is the flash point for the Arizona showdown, though Arizona is not the only state with such laws in the making. In my view it is correct to allow religious officiants to refuse to perform gay marriage if doing so violates their religious doctrine. Religious freedom emphatically requires this lest we have established governmental dominion over religion. I believe few debate this. But the current conflict centers around those entrepreneurs who provide services ancillary to weddings, such as bakers, florists, photographers, perhaps caterers, services that do not have theological content.
As an Ethical Culture leader, a humanist and atheist I have officiated at over 500 weddings. I would suspect, given that wide-ranging experience, there must have been at least few florists or wedding planners, who, if they knew beforehand of my own religious orientation, would have wanted to have no part in the wedding.
For the sake of discussion, enabling such weddings may violate the religious convictions of the merchants. But so may the conscience of a conservative Christian hardware store owner selling a ratchet to a Jew, or a Muslim cab driver providing service to an unescorted woman.
Again, here the rules of the market much hold sway. If a merchant is permitted to serve the public, then he or she cannot discriminate for any reason as to which sector of the public he chooses to service and from which he will withhold his services. In a religious diverse and pluralistic society, public norms, which require accessibility to all must trump private proclivities, religious or otherwise.
Weddings are personal affairs, which raise the issue into higher relief. As implied, the law must require the objecting baker, photographer or florist to provides services, even when doing so violates sincerely held religious convictions (Let’s presume, for the sake of argument, that they are sincere, and not a mask for crude bigotry).
But, in the real world, we can assume that the sensitivity surrounding the wedding event would cause the marrying couple to want to avoid the unpleasantness of having to coerce a reluctant merchant from involvement in what should be a happy affair, if he or she, did not want to do so.
The legal rights of the couple must have the last word. But as in so many areas affecting entrenched differences in human affairs, negotiation and dialogue in practical terms need to be employed to resolve unpleasant disputes. I know from serving on an ethics committee at a local hospital that the law permits patients on respirators for whom additional care would be futile, to have the respirator turned off, if the patient so wills it. Someone needs to found to turn the switch to allow the patient to die, and this duty usually falls upon nurses. On occasion, the appointed employee refuses on personal religious or principled grounds to what is ordered, though such passive euthanasia in accordance with the law and the will of the patient. In such cases, the response of the hospital is usually not to coerce compliance, but to find another staff member for whom the deed presents no problems.
Though not to excuse bigotry, by analogy, if the marrying couple comes across a service provider who refuses to participate in the spirit of the occasion, in most cases they can usually find one who will.