Beyond the blatant bigotry and ignorance of the more rabid supporters of Indiana's RFRA, there are some real, difficult and important issues to consider. These issues surround a host of hypothetical and real lawsuits where businesses refuse services, goods or accommodations to customers or clients for various reasons.
The preeminent case brought up in most of these debates (including Tuesday's excellent story in the Indianapolis Star) is the Washington state lawsuit, Arlene's Flowers v. Ferguson - where a local florist declined to make a flower arrangement for a long-time client's wedding because she did not believe the clients should get married. The wedding was between two men. Note that a key point in this case is that the florist was opposed to making a custom flower arrangement - it is unclear whether or not she was opposed to selling flowers.
So far, the Washington courts have ruled against the florist and have fined her for her refusal, but she is still appealing the case.
If you are like most people, then right now you see one of the sides of this dispute as clearly wrong and the other as clearly right. Before going any further, I ask you to imagine yourself in the shoes of whichever side you think is wrong. Try to be as sympathetic as you can be, making up as many details as you need to.
Imagine you just got engaged and you're excited to plan your wedding. There is a florist you've been going to for years, and you would love for her to design a flower arrangement. When you ask her, she says she won't - because she doesn't think you or people like you should have the right to get married. Her words open a wound that you thought had finally started to heal. It isn't like you are asking her to bear the rings. You are merely asking her to do something she does everyday of her life as her job. You believe that if someone opens a for-profit business to the public, then it is their duty to make that business available to all members of the public, regardless of personal beliefs.
-or-
Imagine you are a florist who owns a small flower shop. You believe we are suppose to live our lives according to a set of rules, and homosexuality is a major violation of those rules. This doesn't stop you from being friendly toward gay customers. It is just, in your heart, you believe what they do is a sin. When you find out that gay marriage has been legalized in your state, you are appalled. One day a long-time customer, who you know is gay, asks you to make an arrangement for his wedding. You tell him that you cannot because that would be condoning something that goes against your religious beliefs. The client is visibly upset, and later you find out he's sued you. After a very public trial, where many people you've never met say all sorts of hateful things about you, a court rules against you and fines you - all for refusing to participate in something you think is morally wrong.
At this point you may be thinking I've done a poor job creating sympathy for the side you agree with. You may be right, but if that is what you're thinking then you're missing the point of this exercise. The point is for you to ignore what you think is right and try to see this situation from the perspective of the side you think is wrong.
Once we have at least attempted to see the world from the other side, only then can we hope to look at the facts with dispassion.
And what are those facts?
1) Rules for when a business can or cannot refuse service to a customer very greatly from state to state.
2) According to federal laws, a refusal for service cannot be based on race, sex, age, religion, national origin or disability. Beyond that - in many states, counties and municipalities - refusal of service also cannot be based on sexual orientation or gender identity. These are protected classes.
3) If the refusal is not related to a protected class, a business can refuse service for any reason. However, if the refused customer can claim damages, they can still sue the business. Federal precedent has made it clear that such lawsuits can be successful if the refusal was arbitrary but will be unsuccessful if refusal was for a legitimate business interest.
4) The way in which a business is legally established can make a significant difference in the latitude they are given to refuse services. A corporation will generally receive less latitude than a partnership or sole proprietorship. Non-profit organizations are often exempt for anti-discrimination laws altogether.
Given these facts, what would be a pragmatic solution?
The complexity of this case rests on the fact that you have the freedom of speech and religion conflicting with civil rights. Many supporters of the florist point out that forcing her to make the flower arrangement is both a violation of her freedom to exercise religion and her freedom of speech. Do they have a point?
I make the following observations:
1) What does the florist do in the case of non-Christian weddings? Would she make flower arrangement for those? If so, how can she morally justify making a flower arrangement for a non-Christian wedding but not for a gay wedding? Aren't both outside of her understanding of Christianity?
2) What is the distinction between a business owner and an employee when it comes to being forced to do things that one finds immoral? I ask this because I know there are millions of employees in this country who routinely do things they believe are immoral for the sake of keeping their jobs - and I don't see Republicans trying to pass a bunch of laws to help them out. One might argue that they are not forced to do immoral things - that they could quit their jobs and do something more in line with their morality. But you could say the same thing about the florist. If she doesn't want to do arrangements for gay weddings (or for non-Christian weddings) then perhaps she should make it a policy not to do arrangements for any weddings.
3) Alternatively, if she really wants to make flower arrangements for straight Christian weddings but not for gay or non-Christian ones, then perhaps she should run her business as a non-profit. As I mentioned above, most non-profits are exempt from anti-discrimination laws.
4) My point is that the florist is not being forced by the government to do something that is against her morality. Rather, she is choosing to engage in a commercial enterprise where her morality comes into conflict with anti-discrimination laws. Furthermore, she has multiple lines of recourse - she could refuse all wedding arrangements or she could reorganize her business as a non-profit.
However...
5) I am sympathetic to the idea that she sees a custom arrangement of flowers for this particular event as an act of expression that condones something - whereas the mere sale of flowers or a stock arrangement would not. This brings up differences between commercial speech and non-commercial speech - which has a rich and controversial history (see more here).
Most people agree that a business shouldn't be able to refuse a customer based on that customer's religion. However, people are very divided on whether or not a business should be able to refuse to put a custom message on a product - based on the message's religious content - if custom messages are something they routinely do.
Several people have argued lucidly that messages on custom commercial work shouldn't be protected as free speech. See Tobin Grant's arguments here.
However, there is a particular hypothetical example that causes me to reject Grant's argument:
Imagine you are a baker who routinely puts custom messages such as, "Steve is the best dad!" on cakes. A member of the Westboro Baptist Church comes into your shop and asks for a cake that says, "Homosexuality is a sin".
If I was the baker, I would refuse.
Yet this example seems similar to one where a baker would refuse to write, "A Happy Marriage for Joe and David"
It also seems similar to the florist's predicament in Arlene's Flowers v. Ferguson.
Yes, there are differences in all these cases. It is unclear whether or not the baker could refuse on grounds that the message constitutes hate speech. Historically, Westboro Baptist speech far more incendiary than that of our example has been upheld as legal, protected speech (here).
So where exactly should one draw the line, and how could that line ever be successfully legislated or consistently interpreted?
I do not have an answer.
No comments:
Post a Comment