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On a trip to Georgia, I enter a restaurant with my partner, who is male. “Sorry,” the maître-d’ says, “we don’t serve homosexuals.”
According to the law being debated in Georgia — quite similar to the one just vetoed by Arizona Gov. Jan Brewer — this would be perfectly legal. That law — like others rejected by legislators in South Dakota, Kansas, Idaho, and Tennessee — is the latest salvo in a long campaign to redefine “religious liberty” to include the liberty to discriminate against other people.
The campaign targets women as well as LGBTs. Next month, the United States Supreme Court will determine whether corporations have consciences, and if so, whether they can opt out of laws on the basis of them. This will immediately affect millions of women who want contraception covered by their insurance (as is, say, Viagra). But it will also impact millions more who corporations may wish not to serve or employ — like me and my partner.
When a woman takes a birth control pill, is there really shared moral responsibility between the woman and her employer who enabled an insurance company to pay for it?
On the face of it, these controversies are about a basic conflict between two sets of rights: the right to practice one’s religion (which may involve discriminating against some people) and the right to be free from discrimination.
But in fact, this whole frame is mistaken. What it misses is the moral incoherence of the “religious liberty” position.
Is it ethically, philosophically, or even logically the case that providing an option as part of an insurance plan is the same as exercising that option? Is it the same as providing contraception? When a woman takes a birth control pill, is there really shared moral responsibility between the woman and her employer who enabled an insurance company to pay for it?
Or take the example of the restaurant in Georgia. Is it true that serving a gay couple dinner is tantamount to accepting homosexuality? Am I approving of the “lifestyle choices” of everyone who visits my restaurant? Gun owners? Pet owners? Feminists? Is that what operating a business means?
Of course not. But it’s a difficult question to adjudicate. Courts justifiably fear to tread into the activity of adjudicating the reasonableness of religious views. Not only is doing so a violation of the First Amendment, but it is not at all clear how such adjudication should proceed.
At the same time, we’re not at square one, either. Supreme Court precedent has long recognized that just because someone asserts a religious belief does not mean that courts will accept it. Usually, this issue arises in the case of new religious movements (the scholarly term for “cults”), whose members have asserted all kinds of wacky religious requirements: eating only natural foods; sleeping on special linens in prison. Occasionally, they have been extended to mainstream religions, though usually only when someone says their religion forbids them from paying taxes.
Here, though, no court need reach the question of whether it is reasonable to disapprove of homosexuality or contraception. The question is whether it is reasonable to move from that disapproval to the conclusions that Hobby Lobby and the “religious liberty” movement assert. We do not question the former — but we do question the latter.
If a hotel puts me up for the night, I may have sex with my partner, practice voodoo, or injure myself with the hairdryer. None of these actions are the hotel’s responsibility.
First, there is the simple matter that businesses are not individuals. Courts, and common sense, have long affirmed Jesus’s admonition to render unto Caesar what is Caesar’s and unto God what is God’s (Matthew 22:21). When a business opens its doors, it is participating in a marketplace, and that marketplace has rules. Obeying those rules is not the same as taking moral responsibility for everything that doing so entails.
Second, it is simply not the case, logically speaking, that providing insurance coverage is taking moral responsibility for how it is used. Would Hobby Lobby be liable if an employee overdosed on painkillers, paid for by its insurance plan? Obviously not. Then likewise here: they cannot assert a religious liberty claim for an action someone else decides to take.
So, too, if a hotel puts me up for the night, I may have sex with my partner, practice voodoo, or injure myself with the hairdryer. None of these actions are the hotel’s responsibility, and thus none may be asserted as a reason to refuse me service.
There is no causal nexus between a business — even a sole proprietorship — obeying commercial laws and the businesses owner’s moral culpability. It may be distasteful for a conservative evangelical to decorate a gay wedding cake, but it is not immoral.
Admittedly, this syllogistic reasoning treads close to the border of evaluating religious beliefs. But it does not transgress it. And it tracks more closely how most Americans view these issues.
In 1960, the owner of that Woolworth’s lunch counter may well have believed that he was religiously and morally forbidden from serving African Americans. But he was wrong. And courts were right to use the force of law against him.
Note: The opinions expressed in this essay belong to the author.