The right to say no


It is unfair to accuse someone who refuses to work at a same-sex wedding of homophobia.

Alarmed by a serious potential loss of revenue through threatened economic boycotts by tourists and companies, Arizona Governor Jan Brewer vetoed a bill last week that would have permitted business owners to refuse services to customers based on their religious beliefs.

Many are no doubt relieved that the bill was vetoed.  And it arguably was too broad and ripe for abuse.  But in the case of offering services for gay marriages, which seemed to be the sticking point for many critics, numerous other states, not to mention Canada, have experienced or are experiencing the same ambivalence.

In Canada, Saskatchewan's Court of Appeal ruled that marriage commissioners hired after the legalization of gay marriage in 2004 could not refuse to officiate over gay marriages, even if it ran counter to their religious beliefs, while the rights of those hired before 2004 to refuse were effectively grandfathered.  This was a reasonable response.  But government and private enterprise are different animals.  Where there is no choice in applying for a service, there cannot be a choice when providing it.

In the U.S., most of the controversy has arisen over the rights of individuals running small businesses to refuse to sell their services to gay couples, specifically with regard to weddings.  Their refusals have generally been ascribed to homophobia.  This is unfair.  If homophobia were the issue, the owners would not sell services to gays, period.  Yet, typically, the owners will sell cakes or photographic services or flowers to anyone under all conditions apart from single-sex weddings.  The idea of contributing to what they perceive as a desecration of the sanctity of marriage sticks in their conscience's craw.

For example, in one Colorado case, a judge recently ruled that deeply religious bakery owner Jack Phillips had discriminated against a gay couple when he refused to bake them a wedding cake.  The judge wrote that even though normally a citizen should have the right to deal with whomever he wants, in this case the court had to take into account "the cost to society and the hurt caused to persons who are denied service simply because of who they are."  (My emphasis.)

But because of his Christian beliefs, this bakery owner also refuses to sell Halloween-themed treats (and so would an Orthodox Jewish baker, as both believe Halloween to be pagan in character).  Should we therefore assume that Mr. Phillips, who doubtless happily sells unthemed or other-themed cupcakes to children every other day of the year, hates children?  It is clear in both cases that his refusal has nothing to do with "who they are," and everything to do with strongly held religious principles.

Their refusals have generally been ascribed to homophobia.  This is unfair.  If homophobia were the issue, the owners would not sell services to gays, period.

In New Mexico, photographers Jonathan and Elaine Huguenin argued they shouldn't be forced to create images that tell "a positive and approving story" about a ceremony they feel is inappropriate.  The state Supreme Court rejected that claim.  But their argument is logically sound.  It would not be sound if they refused to photograph an interracial wedding, because no religion forbids interracial marriage.  On the other hand, it would be sound if they refused to photograph interfaith marriages.  It isn't about "who they are" in that case either; it's about what marriage is for, and the optimal conditions under which a religious community thrives.

And on the third hand (although I am against human rights tribunals in general), I believe a British Columbia tribunal was morally right in siding with a gay couple who were refused a room at a Grand Forks Bed and Breakfast because of the owner's strict Christian beliefs regarding homosexuality.  An innkeeper rents rooms.  Any innkeeper who inquired into the marital status of his guests — one assumes this innkeeper also frowns on fornication and adultery — would not be open for long.  In this case it is fair to assume that it is homophobia — "who they are" by nature — guiding his rejection, very far from the case of those who refuse services to gay weddings alone.  This man is in the wrong business.

Where there is a market choice, the right to refuse one's own services for reasons of conscience, whether or not the state or the majority of citizens approves of the thinking behind that decision, should always be privileged over the state's right to enforce compliance.  The Arizona law allowed the refusal of any service on religious grounds, which was overly broad and could have been abused in situations far removed from a same-sex wedding.  But it is better on balance that some citizens feel offended some of the time than that all citizens feel potentially unfree all of the time.




Barbara Kay "The right to say no." National Post, (Canada) 5 March, 2014.

Reprinted with permission of the author, Barbara Kay, and the National Post.


Barbara Kay is a Montreal-based writer. She has been a Comment page columnist (Wednesdays) in the National Post since September, 2003. She may be reached here.

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