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.