Reference no: EM132736962

Since the U.S. Supreme Court's 2015 decision in Obergefell v. Hodges, legal same-sex marriage is the law of the land.

Many people are still unhappy about the decision and some fear that in complying with the law they will be forced to violate their sincere religious beliefs. You've no doubt heard of cases in which, for example, courts have held that refusing to bake a wedding cake for a same-sex couple is unconstitutional discrimination

A fact that many have missed about the bakery or photography cases is that these cases are not about federal law, and are in fact unrelated to the question of whether same-sex marriage is or is not legal. These cases are based on state laws adopted by state legislatures that establish sexual orientation as a protected class. So in those states it's illegal to discriminate against same-sex couples just as it's illegal to discriminate against African-Americans or women or disabled persons. In Texas it's not illegal to discriminate against same-sex couples because sexual orientation has not been added to the list of those protected from discrimination. So a Texas bakery can refuse service to a same-sex couple with impunity.

Texas's argument is that the Obergefell decision mandated that the state perform same-sex marriages but did not explicitly mandate that states offer the same benefits to married same-sex couples that are offered to married opposite-sex couples. Texas officials (the governor, lt. governor and attorney general) believe that discriminating -- treating same-sex couples differently from opposite-sex couples -- should be the state's choice.

The basic anti-discrimination principle in the Civil Rights Act is that "public accommodations" (such as restaurants, theaters, hotels, etc.) cannot discriminate against members of protected classes of people. A restaurant, for example, cannot refuse to serve African-Americans or women, even if they have a sincerely held belief that African-Americans or women are undesirable. Some people's sincerely held religious beliefs long included the belief that African-Americans were cursed by God (the biblical "mark of Cain") and thus discrimination against them is ordained, or at least approved of, by God. That belief was an important element of the supreme court case Newman v. Piggie Park (1968). If someone's sincere religious belief mandates that they discriminate against African-Americans and courts have said that's not OK, should sincere religious beliefs be the basis for discrimination against other groups of people, like homosexuals? [From the Piggie Park decision: "The free exercise of one's beliefs, as distinguished from the absolute right to a belief, is subject to regulation when religious acts require accommodation to a society. Undoubtedly, [the restaurant owner] has a constitutional right to espouse the religious beliefs of his own choosing; however, he does not have the absolute right to exercise and practice such beliefs in utter disregard of the clear constitutional rights of other citizens." Remember, we're talking about laws that have to apply to everyone. No particular set of religious beliefs can bind everyone else, as we separate church and state in America.

Anti-discrimination laws generally have exemptions for religious institutions. So churches may refuse to host gay weddings if they choose. For-profit wedding chapels are not similarly protected (here's one story from a conservative perspective and a liberal perspective) as they are generally considered to be public accommodations.

Some have asserted that the logic of forcing a baker who objects on religious grounds to baking a wedding cake for a gay marriage is the same as forcing an African-American baker to bake a cake for a KKK wedding or a Jew to bake a cake for a Nazi wedding. That's not actually an accurate analogy. The KKK is not a protected class, because adhering to a political philosophy is not an immutable characteristic of a person. Neither is the Nazi party. Any baker, black or white, can therefore refuse to bake a cake for a KKK wedding, or any Jew for a Nazi wedding, without being accused of legal discrimination.

Question

So, what do you think? Should any business owner, or even any government official, be empowered to deny service to same-sex couples on the basis of their sincerely-held religious beliefs?