The estimable Alan Jacobs (Snakes and Ladders) re-posts the following from Mark Movsesian (St. John’s Law School, New York):
Suppose, I asked [my] students, an observant Jew has a florist shop. One day, a customer, who is also Jewish, comes to the shop to say she’s getting married and would like the florist to do the wedding. “That’s wonderful,” the florist says. “Where will you get married?” The customer replies that the wedding will be at a local nondenominational church, because her fiancé is Christian, and she, the customer, isn’t very observant. The florist thinks about it and then says, “I’m so sorry, but I can’t do your wedding. It’s nothing personal; I’m sure your fiancé is a fine person, as are you. It’s just that as an observant Jew I don’t approve of interfaith weddings. For our community to survive, we must avoid intermarriage and assimilation. Please understand. There are many other florists who can do your wedding. I’ll even suggest some. But I can’t, in good conscience, participate, myself.” What result?
In posing this hypothetical, I was not so interested in how the case would come out under current law. Rather, in good law-school fashion, I was trying to show the students that these are complicated questions and that they need to consider both sides. Much to my surprise, the students were uniformly unsympathetic to the florist. There should be no right to decline services in this situation, they told me. The florist was not acting reasonably and in good faith. […]
Conservatives often assume that controversies like Masterpiece Cakeshop reflect changing sexual norms and an intolerance of resistance. That’s correct, in part; one definitely senses a “you-lost-get-over-it” sentiment on the other side. And yet, the students’ reaction to my hypothetical case suggests that something else is going on as well, that the dispute is not about sexuality as such. Rather, it’s about not allowing people to draw moral distinctions that exclude others and hurt their feelings, no matter what the justification. That’s what the florist was doing in my hypothetical case—and that, I think, was what bothered the students.
Jacobs titles this entry "no feelings may be hurt," and his conclusion is this:
A fascinating case study for people who tend to think these disputes are all about the sexual revolution. As it turns out, and as I have sometimes suggested, demand for the affirmation of sexual choices may simply be an example of a greater demand, that for the affirmation of all the self’s choices. The real principles here are (a) I am my own and (b) the purpose of society is to empower and affirm my claim that I am my own.
Movsesian and Jacobs are correct that these disputes are not primarily about "the sexual revolution". They are wrong, however, when they claim the real issue is either "hurt feelings" or "the affirmation of all the self's choices"; the former is explanation is unconvincing and the latter makes no sense given that the florist (in Movsesian's hypothetical) did not have his choices affirmed by the students.
In fact, what we have in this situation—and in the real-life situations after which it is modeled—is a conflict of seemingly legitimate but mutually exclusive claims: a customer claims the right to service from a public business and the proprietor of said business claims the right to refuse service for personal (in this case, religious) reasons. Both claims, taken separately, seem reasonable and defensible; what then ought we to do?
When rights, or alleged rights, collide, society has a mechanism for resolving the conflict. That mechanism is called "the law" and in America it has, since the 1960s, made it very clear that publicly operated businesses must serve the general public and that proprietors do not have the right to make invidious distinctions on the basis of race (the old Jim Crow laws), gender, sexual orientation, or religion. By that standard—which is the standard under which we currently operate—Movsesian's students were absolutely right to be "uniformly unsympathetic" to the florist, who was confusing his personal religious beliefs (interfaith weddings are wrong) with his responsibilities as the owner of a business licensed by the State to serve the public. The florist is entitled to his beliefs, but to the extent that they lead him to discriminate against certain customers, he cannot operate his business on that basis.1
Does a Catholic florist have to provide flowers for a same-sex wedding? How about for a Jewish wedding, or a Protestant wedding, or an interfaith wedding, or a pagan wedding, or a Wiccan wedding? How about for a wedding of two Catholics who are legally divorced but who remain married (in the Church's eyes) to other people? How about a wedding of two people who have been brazenly co-habiting for a decade? In all those cases, the Catholic qua Catholic may disapprove; but the Catholic qua proprietor of a publicly licensed business has to follow the law and treat all customers alike.
It is not, as some contentious critics claim, that a citizen has to leave her religious beliefs at home when entering the public square. It is that she has to acknowledge the existence of other beliefs that differ from and sometimes conflict with hers; and she must accept that there is therefore a demarcated realm in which law trumps belief. Otherwise, we would be left with a welter of irreconcilable claims and at the mercy of each other's "deeply held religious beliefs," arbitrary preferences, stubborn prejudices, or personal whims—with no way to distinguish among them as to their legitimacy. That's no way to run a public square; that's a recipe for discrimination, discord, and disaster.
http://blog.ayjay.org/no-feelings-may-be-hurt/
1 He could, for instance, close his shop on the Sabbath--as long as it was closed to all customers and not just to a select few.
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