Whites Only, Heterosexuals Only: What's the Difference Again?

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Jackie Gardina

Professor, Vermont Law School

Recently, George Will, in his his oped piece in the Washington Post, took up the cause of Elane Photography, a New Mexico business owned by Elaine Huguenin and her husband. The Huguenins are being sued for refusing on religious grounds to photograph a commitment ceremony between two women. Will reduced the case to this simple question: does New Mexico have an interest in compelling "Huguenin to provide a service she finds repugnant and others would provide?" In short, can Elane Photography hang a "Heterosexuals Only" sign on its business? For Will the question is an unequivocal and stunningly easy yes.

But he doesn't stop there. Will not only concludes that Elane Photography should have the right to discriminate based on sexual orientation, he goes on to chastise the affected couple for bringing suit. Even more, he suggests that "perhaps advocates of gay rights should begin to restrain the bullies in their ranks." Or to put a historical spin on it: if there is a lunch counter willing to serve you, why try to sit at one that finds you repugnant? At least Will didn't suggest that the couple be arrested for challenging the Huguenins' policy as thousands of civil rights protesters were for seeking the desegregation of public accommodations. Separate but equal lives on.

I thought our country had had this conversation. There was a time in our not too distant past that we allowed businesses to hang signs on their doors that said "Whites Only," where businesses were free to refuse service to individuals based solely on the color of their skin. The Huguenins' assertion that their refusal is based on religious grounds is nothing new. As I noted in a previous post, the segregation of the races was long defended on religious grounds. The Supreme Court implicitly rejected such religious justifications in Loving v. Virginia when it declared miscegenation laws that prohibited interracial marriages unconstitutional. In its opinion the Court never acknowledged nor apparently gave credence to the trial court's overt religious justification for the miscegenation laws.

But history has a tendency to repeat itself, and here we are again. Mr. Will, along with many others, will surely challenge my comparison between sexual orientation and race on a number of grounds. Race is an immutable characteristic while discrimination based on sexual orientation is, according to Will, simply a "dispute based on sexual activities between people of the same sex." Under this premise, Ms. Huguenin is not discriminating against a person or group, she is rejecting on religious grounds a behavior she finds "repugnant." But that too is an old argument. The miscegenation laws declared unconstitutional in Loving were simply a veil for regulating sexual activity between the races. It wasn't marriage that made the white majority uncomfortable; it was the idea of interracial sexual activity. Indeed, many states criminalized such conduct just as many states criminalized sodomy until Lawrence v. Texas declared those laws unconstitutional too. Moreover, sexual orientation as an immutable characteristic is becoming increasingly accepted in the scientific literature and legal world. In Attorney General Holder's letter to Congress explaining why the Department of Justice would no longer defend DOMA, he cited to the "growing scientific consensus accepts that sexual orientation is a characteristic that is immutable."

Unfortunately, the Huguenins are not alone in their desire to refuse service to gay and lesbian couples. In 2012, the New Hamphire legislature debated a bill that would allow a business owner to opt out of providing wedding services, such as photography and catering, if doing so violated their religious beliefs. In Vermont, the Wildwood Inn discrimintaed when it refused to accommodate a wedding between a same-sex couple. In Colorado, a bakery refused to make a wedding cake for two men. And the list goes on.

These questions are not going away. Nor will a state or federal court decision end the debate. But nothing will change if gay and lesbian couples accept Will's admonishment to be satisfied with the status quo. Where would we be if John Lawrence and Tyron Garner plead guilty instead of challenging their arrest in Lawrence v. Texas? Where would we be if Mildred and Richard Loving and the gay and lesbian couples in Vermont and Massachusetts had willingly accepted that their states' marriage laws did not apply to them? Where would we be if Rosa Parks hadn't sat in the front of that bus or if black students hadn't sat at the lunch counter in Greensboro, North Carolina? Mr. Will may consider such people bullies, I consider them courageous.
 

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Let's get rid of all the protected groups and make the entire country a free for all.

I mean, why should I have to serve a believer who hates me, but that believer doesn't have to serve me?!

It's the believers and other groups that have the special rights, not us.

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Let's get rid of all the protected groups and make the entire country a free for all.

I mean, why should I have to serve a believer who hates me, but that believer doesn't have to serve me?!

It's the believers and other groups that have the special rights, not us.

The idea of "protected groups" is that it works by protecting the minorities not the majorities. 

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I personally feel that "protected groups" should only have such protections in some contexts. For instance, the government itself should not be allowed to discriminate, nor should public transportation entities, educational institutions or food stores. That said, a business owner has the right to refuse service to any person for any reason-- except the protected groups. One can deny service for being fat, having blonde hair, or not having hair at all, but not for being black or disabled.

We aren't forced to talk to people that we don't like, why should we be forced to transact business with them?

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Let's get rid of all the protected groups and make the entire country a free for all.

I mean, why should I have to serve a believer who hates me, but that believer doesn't have to serve me?!

It's the believers and other groups that have the special rights, not us.

Just so I'm clear.....you support the restaurant that kicked out Sarah Sanders this week?

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In theory, I do. 

I believe that "freedom of association" is an all or nothing deal.   

HOWEVER,  I am against any body (business, charity, college, college cafe, etc, etc, etc) that takes public money from any sort of bigotry.    If it's something that is funded by student tuition, then it is included in this restriction.   


When it comes to private businesses like YouTube, Facebook, Twitter and the like, I think that they should be more centrist and at the very least, much more honest about their bigotry.    Both sides of the political debate in Congress share my concerns of such mega companies having such massive influenece on politics around the world.   

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In theory, I do. 

I believe that "freedom of association" is an all or nothing deal.   

HOWEVER,  I am against any body (business, charity, college, college cafe, etc, etc, etc) that takes public money from any sort of bigotry.    If it's something that is funded by student tuition, then it is included in this restriction.   


When it comes to private businesses like YouTube, Facebook, Twitter and the like, I think that they should be more centrist and at the very least, much more honest about their bigotry.    Both sides of the political debate in Congress share my concerns of such mega companies having such massive influenece on politics around the world.   

We agree on something!

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We agree on a lot more than you realize, but your leftism blinds you from that. 

I hate news outlets telling lies, either for or against, about anyone.   I routinely defended (and still do) Obama from lies.