Since same-sex marriage became legal in Pennsylvania, most wedding-industry businesses have been welcoming to their new customers. Nevertheless, here in Northeast Pennsylvania, several stories of discrimination have fowled our local news. W.W. Bridal Boutique in Bloomsburg, Cake Pros Bakery in Schuylkill Haven and the Inne of the Abingtons in North Abington Township, Lackawanna County have all refused to serve gay couples in the name of Jesus. Currently, no Pennsylvania law prohibits this discrimination. The ACLU is fighting to change this, but why is it a legal issue to begin with?
The Right to Refuse to Do Business
Businesses have always had the right to refuse to serve certain customers. A bartender can deny yet another drink to a clearly intoxicated patron. Restaurants can enforce neutral dress codes – as long as they are applied equally to all; if the sign says you need a shirt with a collar, shoes or a jacket and tie, and you aren’t dressed appropriately, you can be turned away. Gun shops can deny customers when they feel uncomfortable selling lethal weapons to them. Anyone who is behaving in a way that is threatening to others or that causes damage to any business can be asked or forced to leave.
All of these situations, however, involve behavior that either directly impacts the operation of the business or which the proprietor fears could lead to unlawful activity after the customer leaves (– e.g. driving while intoxicated or shooting someone.
Same-sex couples trying to purchase a wedding gown, cake or to rent a facility for a reception do not meet these standards. They are being denied service for who they are and not what they are doing. Marrying someone of the same sex in Pennsylvania is not against the law, and there is no evidence suggesting that anyone believed the actions of these same-sex couples was anything but appropriate.
Religion-based Discrimination Against People with Disabilities
As a blind person using a service dog, I am aware of more and more instances lately involving Muslim cab drivers, restaurant owners and motel franchise owner-operators who are refusing accommodation to people with disabilities using service dogs. Muslims traditionally believe that dogs are unclean, and their religious conviction, the right to which I assume the religious-freedom crowd values Constitutionally as much as they value the rights of Christian wedding-industry business owners, are being used to justify violating the Americans with Disabilities Act (ADA).
The results of this exercise of religious freedom is further marginalizing a population which is already experiencing a 70% unemployment rate. Otherwise able-bodied blind adults of working age have the unhappy distinction of being the minority group with the greatest disparity between education, talent and skill on the one hand and actual employment on the other.
“Sorry, Boss, I’d have been here on time, but ten cabbies passed me by because of my guide dog,” may be true, but it also may be the reason you get fired or that you didn’t get the job to begin with.
ADA Violations – not What You Might Think
Oh, but Americans with disabilities have remedies under the ADA. I filed a complaint with DOJ in June of 2013, when we were thrown out of a motel room that we had already paid for and occupied, because I use a guide dog. I was told that it could take 90 days till I heard anything. Nine months later, I had to write to my US Senator.
We are still in the Mediation process, in which (if there’s a settlement) no one admits to guilt. The actual people who threw us out are, we are told (no one has the authority to verify this) no longer working for the company. Training of the motel personnel (again we must take the respondent’s word on this) consists of reading a section of a manual about service dogs – a section which the employees in question didn’t think applied to them, because their religious conviction was that dogs should be excluded from a “no pets” facility.
Individual Rights vs. the Public Good
Freedom must be tempered to some extent for the public good. The old saw about not yelling “Fire!” in a crowded theater is the gold standard for the appropriateness of limiting freedom of speech. If the sweet lady at the bakery gets on TV because she refuses to bake a cake for a same-sex couple who are renewing their wedding vows (within the law in Pennsylvania), one predictable result akin to the injuries during the stampede in the theater, is that there is a sense of legitimacy for acts of intolerance ranging from playground bullying to the assault of openly gay adults.
Discrimination plants the seeds of intolerance, and the atmosphere of intolerance spreads beyond the gay community to other minorities. Some people, including Christians, believe that a child with a disability is a punishment from God. Such beliefs foster all sorts of discrimination. People with disabilities are not immune to bullying, harassment and assault, a fact which apparently surprises some Americans to the point of disbelief – more evidence of the extent of the marginalization.
Taking a Stand & How the Courts See It
In my naive concept of what American freedom means, it seems to me that when you decide to open your business to the public, you are expected to be welcoming to the whole public as we are in that moment of time. If you can’t in good conscience serve customers who are abiding by the law, then perhaps it is time to take a real stand and close your business entirely.
No one is forced to go into business, and dealing with the public is often cited as one reason many don’t. For the sake of the common good, those who do should accept the public as we are. Refusing to do business with someone should be restricted to situations where a person’s immediate behavior is out-of-line with what is normally expected. Baking a cake for a same-sex couple’s legal wedding may be distasteful to a Christian baker, but their religious freedom still allows them to hold their hateful beliefs and to do what they can to change the law.
Fortunately, the courts usually place a higher value on preserving equality than in giving one person the right to express their prejudices. LegalZoom provides information and services for new businesses. In their September, 2007 article The Right to Refuse Service: Can a Business Refuse Service to Someone Because of Appearance, Odor or Attitude? Leanne Phillips concludes:
Like many issues involving constitutional law, the law against discrimination in public accommodations is in a constant state of change. Some argue that anti-discrimination laws in matters of public accommodations create a conflict between the ideal of equality and individual rights. Does the guaranteed right to public access mean the business owner’s private right to exclude is violated? For the most part, courts have decided that the constitutional interest in providing equal access to public accommodations outweighs the individual liberties involved.
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Discrimination: the Slippery Slope
If we allow some Christian bakers, who attribute to Jesus the words and prejudices of St. Paul and the Old Testament while ignoring His admonishment to “Judge not and be not judged,” to use their interpretation of their religion to justify acts of discrimination and unkindness, what about others who feel that tattoos and body-piercings are acts of desecration of the body and contrary to their beliefs? What if a business owner doesn’t believe that God wants him to serve a convicted criminal, someone he thinks is a drug user or someone he just doesn’t like? What off-the-wall opinion would be out of bounds? Exercising religious beliefs in a way which casts an air of exclusion over the public landscape isn’t good for business, community, democracy or faith.
I can’t help but marveling at the rationale behind the whole “In the end I have to answer to God” thing. It’s like they’re expecting that, after they die, they will hear, “Hey, I’m really disappointed in you. You were kind, nonjudgmental and made an effort to treat all of my children with dignity and respect. We just can’t have that sort of thing.”