Before we begin, allow me to clear up one common misconception for those of you who aren’t regular readers of the site and just followed a link here because of the awful, offensive title. Most of you in the latter category always seem to assume that I’m opposed to gay marriage because I have no problem with – and actually support – the RFRA laws currently under discussion. If you take a moment to check with our commenters you will be quickly disabused of this notion, as they will immediately tell you I’m one of those big ole’ RINOs who doesn’t fit the mold. (For the record, I don’t “support” gay marriage any more than I “support” traditional marriage. I support my marriage. The rest of you are on your own. I simply don’t feel that the government – at any level – holds claim to the power to demand a license from or charge a tax on two consenting adults for the privilege of getting married.)
By the same token, I also don’t believe that the government has any place forcing private citizens – even if they be business owners or shopkeepers – to take part in activities which violate their fundamental religious beliefs which are assured by the constitution. But as counterintuitive as it may seem, that particular objection isn’t the subject of this article either. The argument over whether a baker, a florist, a photographer or any other business person should be forced to participate in a same sex wedding should not rest on their religious rights and beliefs.
You see, the act of refusing to deliver goods or services which are innately offensive to the vendor is not an act of discrimination because one can not discriminate against an activity.
The basis for this argument has been undermined by an activist media and courts that bend to political cowardice, but there are some matters of common sense which scream for recognition in this debate. The first thing to establish here is that any entity capable of actual discrimination, be it an individual, a business or a government, can only discriminate against people under our current definition of the word. By the same token, religious freedom is an actual constitutional concept. That’s why I find it so offensive when I see repeated headlines which include the phrase “religious freedom” (in scare quotes, obviously mocking the idea) while tossing out the word discrimination in definitive form. It should be obvious that the use of scare quotes should be reversed in these instances, but the narrative journalism initiative of the month has managed to turn the situation on its head.
If you find a vendor who is refusing to do business in any form with LGBT customers – presumably because of their sexual orientation – they are engaging in discrimination and are already violating established law. The same would be said if they turned away all black customers or all women or Jews or members of any other demographic clan you care to name. But if the baker is happy to make any non-marital treats for gay couples… if the photographer is eager to collect a fee to take photos of the gay family’s reunion… if the florist is ready, willing and able to deliver a wreath to the funeral of the gay customer’s parent… they are not discriminating. They are objecting to a specific situation, activity or request which offends them, be it on religious grounds or otherwise.
There are countless photos swamping the internet which do not cross the line into pornography but are still offensive to the sensibilities of many people. If a man goes to a photographer and request a session wearing a “banana hammock” and the photographer demurs, will anyone rush to ensure the government forces her to accept the commission? Obviously it’s a legal photograph which might be taken by any number of other vendors. I already brought up the not-hypothetical scenario of the Hitler cake. It doesn’t require membership in the Jewish faith to be offended by a confectionary salute to Adolf. But will the baker be forced to deliver it? If a florist is asked to create a bouquet in the form of the male physique for a bachelorette party, (which believe it or not is an option) can she not refuse on any grounds she chooses?
This progression in the media, now spreading to the courts, is insanity. Apparently a private business can refuse all manner of services unless it threatens the flag which a politically correct faction has planted on some hill. In that unhappy event, the power of the government must be brought to bear upon them.
This is not to say that such a refusal will come without any cost to the vendor. If they are an employee of a business which endorses such services they may need to seek another job. If they are the owner of the business and are offended by too many requests, the invisible hand of the market may shove them out of contention. But those are the natural forces which occur in a free society such as ours. They are not the onerous thumb of the government on the scales of civil society.
When Mike Pence decided to modify the RFRA to ensure that no business would “discriminate” against LGBT persons, he essentially caved in to the forces of narrative media machine and turned the law into little more than lip service which protects nobody. The more we allow a politically powerful minority which is favored by the media to cow both elected representatives and justices on our courts, the less control we have over our own lives. And worst of all, we will continue to dilute and poison the definition of actual discrimination until it becomes a laughing stock.