NEWS BLOG (WSAU) There are lots of policy issues surrounding the Arizona bill that sits on Governor Jan Brewer’s desk surrounding gay rights and the bakers and photographers who might be forced to provide services at same-sex weddings. The Arizona law is overly broad. It also ignores a reasonable compromise.
It’s not uncommon for different rights to be in conflict. A defendant entitled to a fair trial. The news media is entitled to freedom of the press. Those rights can be in conflict (Sam Sheppard, OJ Simpson). The test for whose rights take precedence is a balancing act of greater consequences and easier accommodations. In other words, who has the easier ‘work around’? In my fair-trial conflict, it’s the press that needs to be accommodating. Sketch artists instead of cameras; daily wrap-up reporting instead live streaming video are all reasonable compromises.
So in the case of a fundamentalist Christian baker who doesn’t want to bake a gay-wedding cake, who had the easier 'work around'? It’s the same-sex couple. They can go to other bakeries that don’t have a religious objection. (The case of the photographer who doesn’t want to shoot a gay wedding is strange. What couple would entrust their wedding pictures to someone who doesn’t want to do the job?)
It’s wrong to handle these cases as licensing issues. Too many of the rules for licenses are determined by bureaucrats who aren’t elected and aren’t accountable. It’s debatable if a photographer should even need a license… a condition of getting one should not be whether or not you’d refuse to photograph events that you morally object to. These should be matters of law, not part of a professional code.
So the question for the law is the balancing of religious rights against public accommodation rights. One is enshrined in the Constitution. The other isn’t. Violating your religious beliefs is absolute. Bending makes you untrue to your faith. And to insist that someone go against their religion to accommodate you is bad form in polite society.
Here’s the compromise. When someone is operating as an individual, they should be able to evoke a moral objection on religious grounds. When they’re operating as part of a corporation, they should not. If photographer Jim Smith doesn’t want to take pictures at a gay wedding because he’s a devout Catholic, that should be his right. But if Smith Worldwide Photography, Inc. is approached by a gay couple, they don’t have grounds to turn them away. The corporation doesn’t have a religion. In fact, it has many shareholders who are likely to have different religions. Corporate stock can change hands over time, so the religious make-up of the ownership is constantly changing. And corporations are chartered under the laws of individual states. Those states can have laws that govern when a business and or can’t refuse to do business with someone else.
That’s a good compromise. It also works for situations that haven’t arisen in Arizona yet. Suppose Jim and Bob have just been married, and are planning to spend the night in the bridal suite. If they’re staying at the Hilton, what happens in the privacy of their room is no one’s business. But what if their wedding night is to be spent at a small bed & breakfast run by a fundamentalist Christian family? I think the family has a right to object on religious grounds. The newly-wedded couple loses nothing by spending the night somewhere else.
Gay couples do have rights. People also have religious rights. When they clash, it’s the religious rights that should be accommodated.