We seem to have moved into a new phase of the marriage equality movement. Gay couples will probably be able to marry nationwide by the end of this decade, perhaps even before Obama leaves office. The people arguing for public discrimination — that is, discrimination by the government — have repeatedly lost in court; there have been no anti-equality court decisions since the Supreme Court overturned DOMA section 3 in U.S. v. Windsor last summer.
Having lost the debate over public discrimination, opponents of equality have moved on — or retreated — to arguing for the right to private discrimination, couched as “religious liberty”: the right of bakers, photographers, florists, and so on, to refuse to provide services for same-sex weddings. First the opponents feared that churches would be forced to marry gay couples, but most of them soon realized this was ridiculous, since the First Amendment prevents the government from forcing churches to perform particular religious services. So they moved on from defending religious institutions to defending businesses owned by religious individuals.
That’s a murkier issue. Whether private businesses have the right to discriminate is something on which I haven’t completely made up my mind. My gut and my heart firmly oppose such discrimination; I don’t see why a private business has any more right to discriminate against gay couples than it has the right to discriminate against a particular race. If you choose to enter the public marketplace, you must play by public rules. Adults should know that they can’t always do what they want. It’s the price for being a member of society.
But part of me can see the other side. Photography and baking and flower arranging are not just business practices; they are also forms of artistic, personal expression, expressions of one’s selfhood. And if someone really, truly opposes gay weddings, should we make that person take part in such a wedding?
It would be a simple question if the only issue were liberty. The photographer’s liberty is at stake here; the gay couple’s is not. A photographer’s refusal to take pictures doesn’t affect the gay couple’s freedom to get married. It does affect the photographer’s freedom to choose clients. If liberty is the only issue, the photographer should be able to say no.
But liberty is not the only issue. Equality is important, too. Liberty and equality are both cherished American principles, but they often conflict. When it comes to race, we realize this. Few people except Rand Paul these days would publicly defend the freedom of businesses to deny service to blacks. We believe that people should be treated equally in marketplace.
Why do some of us, even some of us who are gay, struggle more with the right to deny service to gay couples? Is it internalized homophobia? Are we too used to walking on eggshells? Are we trying too hard to be magnanimous, generous, taking too much care not to offend others, even those who spent decades opposing our human rights?
All I know is, it’s a harder question than the simple one of whether we should be free to marry. But that doesn’t mean the question isn’t answerable.
It’s okay for a healthy democracy to discuss these things. In a way, it makes me happy, because it’s just another sign that we’ve already won.