The sticky issue in these cases is separating identity from behavior. That came up in the lower courts in the Colorado bakery case that’s now before the Supreme Court as well. Antidiscrimination statutes protect people based on identity, whether they belong to a certain class specified (race, religion, in some states sexual orientation). You can’t refuse to serve someone at your business because they’re Christian or Jewish or Muslim. You can refuse to serve them if they walk in and start berating you and your customers that you’re going to hell if you don’t repent. Question: What happens when someone’s behavior is tied up in their identity? As far as I’m aware, not a single Christian business owner in any antidiscrimination case having to do with gay weddings has flatly refused to serve gay customers because they’re gay. What they object to is being involved in a gay wedding, as Christianity reserves marriage for heterosexual couples. Is the Christian baker who refuses to bake the cake refusing service because of the gay couple’s identity or because of their behavior in choosing to marry and demanding the business’s participation?
Well, both, of course. The Colorado Court of Appeals, in ruling against the baker, noted that SCOTUS has found that certain types of behavior are so tied up in identity that you can’t separate the two. Obviously gay marriage is a matter exclusively for gay people. Refuse to cater a gay wedding and you’re carving out an exception to serving gay customers, specific or not. Now watch the clip below and try to separate identity from behavior. On the one hand, the business owner is apparently offended by the leaflets that the customers were handing out, not the mere fact that the customers are Christians. You can see the leaflet here; it shows rainbow-colored hands dripping with the blood of aborted babies and talks about “pride” rainbows as a symbol of God’s mercy holding back His wrath. You could analogize that to my hypothetical of a religious customer berating the business owner. But according to the write-up at the last link, the customers … weren’t handing out the leaflets inside the coffee shop. “None of us had dropped anything in the store,” said one. They had been handing them out outside and then came into the shop to have coffee. They didn’t say anything to the business owner, they didn’t ask him to participate in anything related to their beliefs, as a gay couple does when ordering a wedding cake from the baker. The owner simply didn’t like the leaflet they were handing out, which is filled with Christian proselytizing against gays and abortion, and wanted them out of his shop. Does that violate Seattle’s antidiscrimination law guaranteeing service in public accommodations regardless of religion or “creed”?
An obvious solution would be to let both the Christian baker and the gay coffee-shop owner deny service but antidiscrimination laws make that more or less impossible. A single rule for everyone will need to be hammered out. Good luck, Anthony Kennedy. Oh, and fair warning — the business owner here gets plenty profane in expressing his displeasure to the Christian group. If you’re watching at work, be careful.