The uproar over religious freedom bills in Indiana and Arkansas that could have permitted businesses to deny wedding services to same-sex couples shows to what extent gay equality has become a mainstream value in much of America.
The backlash was massive, forcing the conservative governors of both states to ask for changes to ensure that the measures did not offer a defense to complaints of discrimination based on sexual orientation.
For critics, the legislation evoked the shameful past of “whites only” stores and restaurants.
Nonetheless, proponents raise valid and difficult questions about the tension between freedom of conscience and equality of access.
While the issue is often portrayed in terms of refusal to serve gays, the bakers, florists, photographers and other business owners at the center of this controversy stress that they have no problem serving gay customers for any occasion other than a same-sex wedding.
What’s at stake, they say, is the right to refuse their support to an idea that goes against their religious beliefs.
This concern may seem trivial to those who don’t share those beliefs and find them backward at best and bigoted at worst.
Yet surely we can imagine situations in which a business owner’s or independent professional’s philosophical objections to selling services for a particular occasion would be understandable.
If a photographer cannot refuse to work at a same-sex wedding, conservatives ask, can she also be forced to work at the banquet of a white supremacist group?
Granted, such analogies are not only inflammatory but also legally shaky; political ideology is not protected under discrimination law.
But here’s a more likely scenario: Let’s say an evangelical Christian couple wants a wedding cake with the biblical quote “Wives, submit to your husbands” on it.
If the baker refuses, finding the sentiment offensive, the couple might have a successful complaint of religious bias.
It’s safe to say that most of the people who are outraged by a Christian baker’s refusal to supply a cake for a same-sex wedding would be far more sympathetic to the conscientious feminist baker.
Of course, allowing a conscience exemption to anti-discrimination law could have far-reaching consequences.
Can a traditionalist religious employer refuse to hire married women, citing a faith-based view that wives shouldn’t work, or refuse to promote an atheist to a management position? Can a committed pacifist refuse to hire veterans?
Given this conundrum, we should expect more culture wars for years to come.
The outpouring of both condemnation and support for pizzeria owners who said they would not send pizzas to a same-sex wedding shows there are strong feelings on both sides.
Even many commentators who support same-sex marriage, such as Atlantic magazine columnist Conor Friedersdorf, believe that the drive to punish small business owners with traditional beliefs is intolerant and authoritarian.
One radical solution would be the classical libertarian view that private businesses should be able to refuse employment or service to anyone for any reason — as they could before the 1964 Civil Rights Act.
Yet today, the principle that discrimination is against the law is so deeply entrenched that repealing such protections across the board would be unthinkable.
But perhaps such a solution could be considered on a small scale: family-run businesses with, say, fewer than a dozen employees could get an exemption from anti-discrimination laws of all kinds.
If it were tried, perhaps we would soon see that the sky isn’t falling — especially because, given powerful cultural support for equality in modern America, social disapproval would be an effective curb on bigotry.
Cathy Young is a regular contributor to Reason magazine and Real Clear Politics.