A friend of mine recently asked my opinion on a story about a Christian couple who were sued for refusing to serve a same-sex couple in Oregan. The original article provided for comment is here. The article seemed subtly one-sided to me in that it questioned the legitimacy of the decision without providing supporting arguments. I don’t resent journalists having an opinion on the stories they cover, but do feel they should at least present both sides of the argument.
In the case of the CBN article, they fail to mention the “Oregon Equality Act of 2007” which states, “Oregonians may not be denied service based on sexual orientation or gender identity. The law provides an exemption for religious organizations and schools, but does not allow private businesses to discriminate based on sexual orientation.” They also implied a violation of the couples right’s with regards to freedom of speech with, ” The official then ordered the owners of Sweet Cakes by Melissa not to speak publicly about their conscientous decision to follow their religious beliefs by not baking any cakes for same-sex weddings.” In fact, the couple were only prevent from claiming they won’t serve gays (because not serving people on the basis of sexual orientation is illegal in Oregan), NOT from sharing their opinion. This article covers the same story with a slightly different slant.
In that context, the interpretation is actually quite simple – break the law, pay the fine.
But that was merely a bit of detective work, and hardly the opinion I was asked for. Even if an interpretation of this story is simplified by law, there is a wider issue worth discussing. Certainly we South Africans are familiar with stories of discrimination on the basis of race and sexual orientation. Laws are not intrinsically good or bad, and offer no moral explanations.
Right of admission reserved
In theory, I support the ‘right of admission reserved’ for non-essential services. That is to say, every person has a right to access education, medical services, legal services, and so forth. Beyond that, I feel that businesses and institutions should be able to serve who they like – economics and public opinion will determine the success of their decisions. Such institutions exist today, albeit according to rules that seem haphazard – clubs for over and under 23’s, gay bars, black and Jewish business councils, insurance companies for women, various clubs, religious institutions, and much more. Some of them restrict membership outright based on…something…while others merely discourage attendance by anything other than their target group.
While unity is a good thing and the ability of different types of people to get along is to be admired, there is a place – I believe – for focus groups. They always say that healthy married couples should take the time to do things apart, so probably it’s the same for society. Making it illegal to discriminate / distinguish between people for the purposes of membership has an overall negative effect on the entrepreneurial potential of society.
I think that refusing to serve people based on race or sexual orientation is a distasteful expression of that particular principle, but one sometimes has to take the good with the bad. The distasteful flip side to making all forms of discrimination illegal is the implication for freedom of speech, entrepreneurship and punitive legal ugliness (such as suing a bar for refusing me access on ladies night, to use a completely arbitrary example).
Granting businesses the right to serve who they like would not, of course, grant them protection from criticism of their decision, which would also limit some of the more abhorrent variations. Barring people below (or above) a certain age from certain social events is a form of discrimination unlikely to attract much criticism, but refusing to host gay weddings at a Cape Town wedding venue will certainly wreak havoc with your business and supply chain both.
Come to think of it, nobody has mentioned why a gay couple would want to eat a cake baked by someone who considers them an abomination unto the lord. If nothing else, allowing businesses their right to choose who to serve (and to advertise that preference) significantly decreases my risk of ingesting unwanted elements (even as a straight person attending a gay wedding). I know, I know – it’s about the principle. That was only a half-serious thought.
On the other hand…
It’s been said that, “in theory, theory is the same as practice, but in practice, it is not so.” In the same way, the ‘right of admission reserved’ principle doesn’t always work out in practice. Certainly, in areas where bigotry has a monopoly, it may well be necessary for anti-discrimination legislation such as exists in Oregon to break the monopoly. For economics and public opinion to successfully determine the success of discriminatory policies in a realistic space of time requires a level playing field.
As has been pointed out in the original location, it also doesn’t work on a small scale where the available services are limited. You could counter-argue (as I jokingly did) that that isn’t much different from when those services aren’t available at all, but when the only cake shop in the town you’ve been born in won’t serve you, that’s rough. The “you don’t have to go there if you don’t like it” doesn’t really hold when you start there in the first place.
Affirmative action is another form of bigotry-monopoly-breaking legislation. While there are many criticisms that may be levelled at it’s application in the South African context, it is based on a sound principle. That is, that the South African business market was not (and is not) a level playing field. All else being equal (which it’s not), people are more likely to hire people who are similar to them than they are to hire people who aren’t. So if the majority of influential people are white males (which they still are), those white males are more likely to other hire white males, unless you introduce a counter-incentive.
Similarly, if the majority of people in a specific location are bigots, they will tend to remain bigoted (by making people they don’t like feel unwelcome until they go away) unless you provide sufficient incentive to break that monopoly.
Finally, the definition of non-essential services (which may not discriminate) might be difficult to determine. Employment can be reasonably argued to be an essential service, but then you have the irony that business have to hire guy people but not serve them.
Irony – we’re ALL a unique snowflake
The world is more interesting with uniqueness. One “solution” to our differences is to stir everything up to the point where there there are no real differences – same religion, same colour, same philosophies. The solution I prefer is to have a situation where differences exist and are safe from one another. That involves allowing a great deal of freedom in terms of what you’re allowed to believe, but creating some restrictions on the way in which you’re allowed to act on those beliefs. Have your white straight pride parade, if you like. But rot in jail if you burn down a black church.
But that may be idealistic, at least the way the world works currently.