The New York Times has an op-ed arguing that bigots who own businesses should be allowed to refuse to sell LGBTQ customers the same products and services as other customers. Tish Harrison Warren, who writes a newsletter for the paper on “matters of faith in private life and public discourse,” (and who is a “rising star in Christian spiritual writing”) is discussing an upcoming Supreme Court case on whether a web designer who creates web pages for clients’ weddings has to serve all customers equally, or can refuse to to create wedding pages for LGBTQ people.
Warren says that the question the case raises is, “How committed are we to true pluralism?” While she believes that LGBTQ people should have certain legal rights, she thinks that “pluralism” means we must “[allow] religious people who adhere to historic teachings on sex and marriage to freely practice their faith.” That means that “government should not choose a side in these intrafaith debates” about the morality of same-sex marriage. Instead, “law-abiding people have a right to live according to their conscience,” which means the government should not “force” someone to express a message they have a religious objection to. So the religious web designer should have a legal right to say no to creating pages for same-sex weddings. To decree otherwise would be to infringe upon liberty of conscience.
A similar argument was made several years ago by the leal scholar (and prominent same-sex marriage opponent) Sherif Girgis in The Public Discourse. There, the issue was whether a Christian baker should have to bake cakes for gay weddings. Girgis said there was an unanswerable argument in the baker’s favor: the government cannot compel artistic expression, and “by forcing [the baker] to bake a same-sex wedding cake, [the state] forces him to (1) create First Amendment expression (2) carrying a message he rejects…this coercion serves no compelling governmental interest and is therefore unconstitutional.”
This argument, that it is force and coercion to require equal treatment of LGBTQ customers, seems very compelling to those who believe it. Warren thinks her stance is completely compatible with respect for LGBTQ rights and that she is simply an advocate for tolerance and “pluralism.” The argument’s weakness, however, is exposed the minute we begin to think seriously about analogous situations.
The obvious response to Harrison and Girgis is: what would they say about someone who opposed interracial weddings and refused to bake cakes or design websites for couples if the two partners were of different races? The racist could invoke all of the same principles: they have a deep-seated conviction, they do not want to be “coerced” into affirming respect for something they do not respect, and the government should not be in the business of deciding which beliefs are the correct ones. Girgis reminds us that the point of the First Amendment is “to shield those choices of [speech] content that in someone’s eyes are misguided, or even hurtful.” The racist baker will say that their speech falls precisely into that category.
The racist baker analogy can flummox those who defend the homophobic baker. When Jordan Peterson told comedian Jim Jefferies that “making” a baker bake cakes for same-sex weddings was a bad idea, Jeffries asked whether Peterson thought a racist baker should have to make cakes for Black couples. Peterson replied that they shouldn’t be forced to, but Jefferies pointed out that this is precisely what the Civil Rights Movement was pushing for: mandatory service to customers of all races. Peterson then concedes that the Civil Rights Movement was correct, at which point Jefferies asks how the demand for equal service for LGBTQ people is different. “Maybe it’s not different. Maybe I was wrong about that.”
Warren is not as humble and self-reflective as Peterson, however. She insists that it is different, and strongly objects to the view that “equates individuals or organizations who hold longstanding religious beliefs on sex and marriage with white supremacists.” Racists are different, she says, because their Christian theology was faulty, whereas homophobes are correct that Biblical teaching supports their worldview:
“In order to justify racial violence and oppression, white people in America and Europe essentially invented a novel theology, baptizing white supremacy. It was racism in search of an ethic. Sexual ethics, by contrast, are named and addressed in religious scriptures in specific terms. Unlike white supremacy, religious teaching regarding sex, including prohibitions on extramarital and premarital sex, pornography, lust and same-sex sexual activity have been part of the Christian faith from its earliest days. This is not an aberrant view rooted in bigotry but a sincere belief that flows from ancient texts and teaching shared by believers all over the world.”
Thus racist (religious) bigotry is aberrant but homophobic religious bigotry is more legitimate because, according to Warren, homophobia is much more deeply rooted in the Christian religious tradition and Biblical text.
This is not a very persuasive response, because it can be met with a very obvious objection: why does “history” determine which forms of bigotry are acceptable? A Christian’s homophobia is more legitimate because it is old? If I were to found a racist religion, it would not receive equal protection for its bigotry because Christians have held their particular preferred prejudices for longer? If my racist religion takes off, at what point does it become enough of a tradition to earn me an exemption from otherwise-applicable antidiscrimination laws? Gay people are out of luck because Warren says they have historically been feared and despised more than they are now?
Attempts to draw distinctions between banning anti-Black discrimination and anti-LGBTQ discrimination always end up in these kinds of unpersuasive places. (Girgis’ article does not directly address the “racist baker” comparison.) Unless you defend the superior legitimacy of homophobic prejudice over racial prejudice, it’s not clear why one deserves legal protection and the other does not. Of course, some on the right are consistent and simply believe that all discrimination should be legal. Many libertarians believe that the right of property-owners to decide what to do with their property is more important than the right of Black people to be given equal service. Rand Paul has attracted controversy for remarks suggesting that the 1964 Civil Rights Act, which forced private business owners to give equal service to Black customers, may have been an illegitimate intrusion on freedom of association. But even Paul won’t endorse getting rid of the ban on private racial discrimination in markets.
How would we respond to someone who said, though, that while they were personally opposed to discrimination, they didn’t think the government should force private business owners not to discriminate? One point, of course, is that putting this ostensibly liberty-loving principle into practice would have meant leaving large parts of the Jim Crow system in place in the American South. But it’s also worth noting how trivial the “coercion” supposedly involved in antidiscrimination laws actually is. For all the fuss made by the baker and web designer about how the government is forcing them to violate their religious beliefs, let’s think about what the law is actually doing when it requires equal service. All it is saying is that if you choose to enter a particular line of work, you are not allowed to pick and choose your customers on the basis of race, gender, or sexuality. Nobody is forced to start a career as a designer of wedding cakes or wedding websites, but if you do, there is a straightforward condition, which is that you have to give equal service. This condition exists because we believe the right of people not to be discriminated against on the basis of their race, gender, or sexuality is more important than the right of a bigot to practice their bigotry. (The rights of the customer are often left out of these conversations entirely, as if the issue is “business owner rights” versus “antidiscrimination” rights when it is better thought of as “business owner rights” versus “customer rights.”)
If you didn’t want to have to make web pages for LGBTQ weddings, there was a very easy way to avoid being “coerced”: don’t start a career as a designer of wedding pages. The condition of choosing such a career is nondiscrimination, and it’s not very difficult to abide by. Warren, in her piece, says that forcing the designer to serve all equally is like forcing a pro-choice poster artist to design posters for pro-life rallies, but it’s only the same if you collapse the distinction between discrimination against marginalized groups and other kinds of political speech. We all agree (with the exception of radical libertarians) that there is an acceptable category of coercion when it comes to enforcing the rights of people in historically discriminated-against groups to receive equal treatment in the marketplace. The question is whether “not serving a same-sex couple as a web designer” belongs in the same category as “not serving a Black couple” or in the same category as “declining to produce banners for the RNC if you’re a Democrat.” If you see homophobia as more legitimate than racism (as Warren does) then you might put it in the latter category, but those who find both equally abhorrent will easily distinguish between bigoted behavior in a marketplace and political speech.
It’s a little sad to see the liberal New York Times running a defense of legalized discrimination. One expects this stuff from the Wall Street Journal op-ed page. Fortunately the Times has added another article by the legal director of the ACLU explaining clearly why discrimination against marginalized customers is not a First Amendment right. But this argument that “freedom” means the right to deny equal service is far more persuasive than it should be, and you hear it coming even from those, like Warren, who insist they have Absolutely Nothing Against LGBTQ people. We need to be clear: mandating equal service is not secularist Stalinism, or an infringement of rights. It’s the enforcement of the basic right of all people to be treated fairly when they deal with public-facing businesses.
An expanded version of this argument appears in my forthcoming book Responding to the Right.