Tuesday, June 21, 2011

The Baker-and-Florist Objection to the Pending NY Same-Sex Marriage Bill

By Mike Dorf

In my post yesterday, I noted that New York State Senate Republicans who are either on the fence or opposed to the pending bill to legalize same-sex marriage in the state have sought a broader religious exemption than the one in the current version of the bill. I said that I regarded this opposition as insincere because the existing exemption is quite broad. One commenter proposed that the critics ought to be challenged to come forward with  what they really want in the nature of changes to the bill. After doing a bit of research, I found that a number of objections have focused on the absence of protection for individuals--rather than religious organizations--who, on religious grounds, do not want to participate in same-sex marriages.  In particular, a number of people have raised the objection that religious bakers, florists, and other merchants and purveyors of services might not want to provide their services for same-sex weddings.

My first thought was: Really? But then I found that the argument had even been voiced by a respectable scholar (e.g., here), so I decided to take it seriously--even though I still suspected that the politicians who are making this point must really have some other object in mind (like killing the bill).  Upon thinking about the matter some more, I concluded that including an expanded exemption for religious florists, bakers, and the like would tarnish the bill in at least one small way.

New York law already limits the freedom of florists and bakers to discriminate. The Human Rights Law, as amended in 2003 by the Sexual Orientation Non-Discrimination Act (or SONDA), forbids, among other things, places of public accommodation--including most businesses, like bakeries and floral shops--from discriminating on the basis of sexual orientation. So suppose a same-sex couple about to enter a domestic partnership under New York City law wants to hold a commitment ceremony that in every outward respect looks like a wedding. Let's say they call it a "Weding." They go to a stationer for Weding invitations; they seek a Weding photographer; they go to a baker for a Weding cake; and they go to a florist for Weding flowers. As I read SONDA, each of these people would be in violation of the state Human Rights Law were he or she to refuse to provide goods or services to the couple. Although the Human Rights Act contains certain exceptions for religious organizations, it--like the proposed same-sex marriage bill--provides no exception for individuals or businesses.

Thus, the proposed broadened exception that Republican State Senators are now touting would actually weaken human rights protection for same-sex couples in New York State. Is there any possible justification for doing so? Why is it okay to override the wishes of a religiously-motivated businessperson who objects to providing services to a gay couple who want to celebrate their "weding" (i.e., their domestic partnership)--as current law does--but not okay to override the wishes or a religiously-motivated businessperson who objects to providing services to a gay couple who want to celebrate their state-recognized wedding--as proposed by the objecting Republican State Senators? Is there any religious commandment that permits provision of services in the one case but not the other? Indeed, so far as I am aware, there is no religion on Earth that makes it sinful to bake a cake or arrange flowers for a same-sex couple's ceremony, regardless of whether that ceremony is called a wedding, a weding, or anything else.

Now, it's possible I'm mistaken in my underlying assumption that SONDA would already bar the sort of discrimination I've described. I have been unable to find any relevant public accommodations cases under SONDA, so one could imagine that if the issue were to arise, a court would say that the businesspeople in my hypothetical example were not engaged in sexual orientation discrimination in violation of SONDA. A court might say that refusal to provide services for the celebration of a same-sex commitment ceremony is not discrimination against gay people. This strikes me as far-fetched but not demonstrably more preposterous than the other sorts of things that people say in defense of what looks to me like simple homophobia.

In any event, the absence (so far as I can tell) of relevant reported public accommodations cases suggests a different lesson to me.   SONDA has been on the books since 2003, and New York City has recognized domestic partnerships since 1997. In a city with over a quarter of a million gay residents, one would think that if these two legal provisions led to real friction, we would have seen substantial evidence of it by now. Apparently there was a conflict of this sort once, in Canada. But on the whole, this is simply a non-issue. One could almost certainly count on the petals of one wedding lily the number of New York florists, photographers, bakers, and others whose reaction to the legalization of same-sex marriage will be anything other than "thank goodness for the extra business."

Thus, after reflection, I have confirmed my initial reaction to the baker-and-florist objection.


tjchiang said...

While I completely agreed with your point in the last post that there are feedback effects between courts and legislatures, your post shows the dangers of conflating the two types of institutions. This post shows status quo bias in the extreme. You start with a presumption that the existing law (SONDA) is the baseline, and ask why the same logic should not be extended to the new law. In other words, you are applying standard legal analysis that a court would apply.

But in the legislative arena, there is no reason to assume that the principle reflected in the SONDA precedent is sacrosanct or even sound. There is no doctrine of stare decisis for legislatures. If the political bargain is to allow same sex marriage in exchange for weakening SONDA, and assuming that the new law cannot pass otherwise, I'd take it any day of the week. The politics of the situtation are that the new law could probably pass even without this compromise, but the point is that politics, not stare decisis or logic, is what counts in this process.

Michael C. Dorf said...

TJC: Either you misunderstood me, or I misunderstand you, or perhaps both. My claim is not that the state legislature is under some legal obligation to act with complete logical consistency--although the Constitution does require at least minimal rationality. But I do not claim that weakening SONDA would flunk the rational basis test or any other judicial test.

You're right that less is required in the way of consistency in the realm of politics but in fact politicians constantly accuse one another of inconsistency--presumably because they, like other humans, feel some obligation to act consistently from one moment to the next. Thus, it is a completely standard political argument to challenge someone to explain how he can support proposed legislation X without thereby disavowing legislation Y. The answer may well be that said politician also opposes Y. But then it may be worthwhile--in a political sense--to embarrass said politician into admitting that fact. And that's how I intended that part of my post.

On your last point, I think I share the view that it would be best to have same-sex marriage without changing SONDA, next best to have same-sex marriage with this change to SONDA, and worst of all to maintain the status quo. So I don't think we're disagreeing.

tjchiang said...

I understood you to be saying that because SONDA currently provides protection for same-sex couples against bakers and florists, this protection *should* not be weakened by the new law. And I understood the "should" here to be more than just your own policy preference, but a stronger kind that says doing it offends some objective principle. The claim is not that it is unconstitutional, but at the same time it is more than just a "here are my political preferences and that is that."

Now, if all you were saying is that your personal political preferences are for a "clean" same-sex marriage bill, then obviously there is nothing to respond to. But if you were making a stronger claim, my response is that I don't see how that claim can be supported merely because SONDA is existing law.

While we expect politicians to be consistent, and humans to be consistent, we don't expect legislatures to be consistent across time. In fact, we expect them to be inconsistent--that is what elections are for.

Michael C. Dorf said...

They don't need to be consistent across time, but when amending a law--and under the proposed change, the same-sex marriage law would amend the Human Rights Law--one strives for consistency in the resulting amended law. My question is: If the holdouts want to amend the Human Rights Law to allow bakers, florists, etc., to refuse to provide cakes, flowers, etc. for same-sex weddings why don't they also want to amend the law to give the bakers, florists, etc. the right to refuse to provide cakes, flowers, etc. for same-sex "wedings"?

So yes, there are two dimensions to what I'm saying: 1) SONDA is normatively justified; 2) Whatever you think of SONDA, the ad hoc nature of the proposed exception is sufficiently bizarre as to raise questions about the motives of those pushing it.

Now maybe there's a be-careful-what-you-wish-for quality to that point: Perhaps the holdouts will now demand the further change too. But I think the fact that "wedings" haven't been an issue until now shows that this whole objection is a show. Which isn't to say it won't get enacted--since enough of the relevant constituents may be taken in by the vague assertions of threats to religious freedom.

tjchiang said...

I see what you are saying now (I had treated the new law as if it would cover the "weding" as well). I agree with you about the likely motives of the people offering the amendment, but I don't think you need this analysis to get to there, and I'm think that analyzing a politician's motives is a useless exercise in most circumstances.

One response, though, and it probably falls in the be-careful-what-you-wish-for category. A major premise of the judicial case of supporters of SSM is that weddings and "wedings" are so incredibly different that civil unions are insufficient (of course, the opponents argue the other way). To say that weddings and "wedings" are so similar that inconsistent treatment between them is bizare undermines that argument to some extent.

michael a. livingston said...

The whole religious exemption thing, while politically unavoidable, strikes me as self-contradictory. Would we allow people an exemption to discriminate on the basis of race, or to violate other laws? You can't avoid concluding that this expresses some doubt about the wisdom of the original policy.

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