Even before legalisation, a backlash against gay marriage

Some American law professors have predicted that if the United States Supreme Court rules that there is a constitutional right to same-sex marriage (often called “gay marriage”), such a decision is unlikely to spark a political backlash. Writing in the Los Angeles Times, Harvard Law Professor Michael Klarman concludes:

The likeliest scenario, in the event of a pro-equality ruling, is immediate, strident criticism from some quarters, followed by same-sex couples marrying in states where they previously could not. Very little will change in the day-to-day lives of opponents, and the issue will quickly fade in significance.

Klarman is famous for his scholarship on the backlash to Brown v Board of Education, the Supreme Court ruling that declared racial segregation in public schools to be unconstitutional. This academic focus may have caused him to miss how opponents of same-sex marriage already are claiming that they are negatively affected by it, even in places where such marriages have no legal status.

A case frequently cited by opponents as an example of how same-sex marriage will reduce people’s rights is that of Elane Photography, a wedding photography business in the US state of New Mexico, which offers its services to the general public. This company refused to photograph a wedding solely because the ceremony would be for a same-sex couple, and justified the refusal on the basis of the photographers’ religious beliefs regarding same-sex marriage.

The lesbians who were turned away by Elane Photography complained to the state Human Rights Commission, which fined the business several thousands of dollars for violating New Mexico’s anti-discrimination law. Although New Mexico does not currently recognise same-sex marriages, its anti-discrimination law protects people from being discriminated against on the basis of their race, marital status, religion, color, sex, handicap, sexual orientation or national origin when they go to any establishment that provides or offers its goods or services to the general public.

The photography studio’s case was recently heard by New Mexico’s highest court, and eventually may be appealed to the US Supreme Court. Elane Photography claims that forcing it to photograph a ceremony that it does not believe should take place is a form of compelled speech, which violates its free speech rights.

Creative discrimination

Elane Photography argues that because photography is an expressive and artistic endeavour, requiring a photography business to serve all people equally would violate its First Amendment freedom of expression, because it would be forced to depict a same-sex couple’s commitment. Yet almost any service relating to a wedding could be deemed in some way to be creative.

Decorators, disc jockeys, dressmakers – every vendor who helps to make a wedding unique works with the couple to express their love on that special day. That Elane Photography’s proposed exception to anti-discrimination law could go far beyond photographers was recently exemplified by a bakery that cited the First Amendment after refusing to make a cake for a same-sex couple. The bakery is now being investigated for discrimination by the state’s Department of Justice.

A service’s being creative or expressive does not exempt it from government regulation. A baker might find her best expression of St Patrick’s Day to be cupcakes filled with various Irish alcohols, but she still could not serve them to children too young to drink liquor. The government regulates businesses in many respects, including in their discrimination against customers. And being discriminated against when you are buying services for your wedding is no less hurtful and derogatory than being discriminated against at any other time.

“… when you suddenly find your tongue twisted and your speech stammering as you seek to explain to your six year old daughter why she can’t go to the public amusement park that has just been advertised on television, and see tears welling up in her eyes when she is told that Funtown is closed to colored children…”

– Martin Luther King Jr, “Letter from a Birmingham Jail“

Public accommodation

Under most American states’ laws, “A ‘place of public accommodation’ means any establishment which caters to or offers goods or services or facilities to, or solicits patronage from, the general public.” Religious sites such as churches, synagogues and temples often agree to host weddings, but they are not “public accommodations”. They may charge a fee to cover utilities, cleanup, etc, but their involvement generally is premised on the couple’s wedding being a religious ceremony that accords with the tenets of the particular church’s beliefs.

A Greek Orthodox church, for example, can require that both members of the couple be baptised in the faith before the church agrees to host their wedding. In contrast, if a florist demanded that patrons be baptised before buying his flowers, this would be illegal religious discrimination.

While instances of churches discriminating gets news coverage, they do not get investigated by the government because they are not illegal. If their faith so dictates, churches can discriminate for reasons that would be illegal for a business to do so.

Similarly, an individual’s home is not a public accommodation because it is not open to the general public, instead only to the people whom the individual wishes to invite. One may be absolutely discriminatory in the choice of guests.

In contrast, American law says that when someone enters a business, she has the civil right to be treated like everyone else, regardless of her race, religion, sex, or sexual orientation. If she acts in a way that the business would not tolerate in anyone – for example, by talking on her cellphone – the business still retains its right to refuse service without being illegally discriminatory.

People who disagree with same-sex marriage have the right to refuse to have gay people in their homes. Churches who disagree with same-sex marriage have the right to refuse to have gay people in their churches. But once a business opens its doors to the general public, it legally cannot make gay Americans unwelcome – including those who express their love for each other through a ceremony with flowers, cake and photography.

Nonetheless, proponents of same-sex marriage should not ignore how its legalisation will affect all of us. Not only will wedding vendors be required not to discriminate in the provision of services, but employers will be required not to discriminate in recognising employees’ spouses. For example, any company function to which husbands and wives of employees have been invited must now include same-sex spouses to avoid discrimination.

These may seem like minor annoyances compared to the disadvantages suffered by gay and lesbian couples unable to marry, but they loom large in the rhetoric of same-sex marriage opponents.

Just as religious groups and individuals are fighting the health care reform law’s requirement to pay for employees’ birth control, fifty years after the birth control pill came into widespread use, the same groups and individuals are likely to keep fighting any requirement that they recognise same-sex marriage, even years after such marriages become legal. This backlash against the freedom to marry, in the name of a First Amendment freedom to discriminate, is already occurring. Klarman and other supporters of same-sex marriage should not ignore it.

Pallavi Guniganti is a graduate of the Columbia University School of Law and of King’s College London, a New York lawyer, and a recent Legal Fellow at the American Civil Liberties Union of Delaware.

Follow her on Twitter: @PGunigantiAT