//  5/10/17  //  Commentary

NB: This post contains some explicit languge

In last week’s New Yorker, Joshua Rothman wrote a fine profile of Rod Dreher, an Orthodox Christian author. In it, Rothman quoted Andrew Sullivan:

There is simply no way for an orthodox Catholic to embrace same-sex marriage. . . . The attempt to conflate that with homophobia is a sign of the unthinking nature of some liberal responses to religion. I really don’t think that florists who don’t want to contaminate themselves with a gay wedding should in any way be compelled to do so. I think any gay person that wants them to do that is being an asshole, to be honest—an intolerant asshole. 

This is the second time in the last few weeks that I’ve heard this argument from someone I consider thoughtful—why can’t gay couples just find some other florist? And recently the Trump Administration apparently considered, but decided against (for now), an order vastly expanding the capacity of federal employees and contractors to discriminate against LGBT people on the basis of religious objections. But Trump's decision to issue a narrower executive order doesn't mean the issue won't return.

So I want briefly, and inexpertly, to point out that Sullivan’s argument fundamentally misunderstands a core purpose of public-accommodations law.

The point isn’t that gay couples can’t get any flowers for their weddings. (Although I’m sure there are large swaths of the country where it’s very difficult to.) The point is that none of us should want to live in a world where we search through the phone book—or, more realistically, filter our Google results—for businesses that serve people like us. And that is especially true when “people like us” have suffered a long history of discrimination based on prejudice and stereotype—often at the hands of the government, as well as private parties, and often with no meaningful remedy or recourse. In that case, the denial of service evokes a painful, personal history of second class citizenship.

Let’s set aside for the moment debates about whether it’s fair to equate religious objections to serving same-sex couples with homophobia; whether anyone who objects is in fact sincerely motivated by religious belief rather than simple hate; or, indeed, whether florists “should”—in any sense of the word—be compelled to serve same-sex weddings. No matter your view on these questions, someone who sues to gain access to a public accommodation that doesn’t want to serve her solely because of her sexuality cannot sensibly be called an “asshole” for doing so.

And so, in the spirit of high-minded debate: Andrew Sullivan, you’re an asshole.

The Civil Rights Act of 1964 prohibits discrimination based on race (and other characteristics) in places of public accommodation, and the Americans with Disabilities Act mandates that public accommodations be reasonably accessible to people with disabilities.

In 1968, Anne Newman, a black woman, sued a barbecue restaurant called Piggy Park because it refused to serve her. (The previous week’s New Yorker would have enlightened Sullivan on the topic.) The owner of that restaurant, Maurice Bessinger, was the head of the National Association for the Preservation of White People. He claimed that serving black people violated his religious principles. Newman won. And rightly so.

Was Anne Newman being an asshole? There’s plenty of good barbecue in South Carolina. Why couldn’t she have gone to another restaurant? First Amendment law generally treats all sincere religious beliefs as equally protected, so if you credit Bessinger’s belief as sincere—and there’s no evidence that it wasn’t—you can’t say “oh well that’s different.” It’s not.

(You might be tempted to retort, “race isn’t the same as sexual orientation when it comes to anti-discrimination law.” Of course, if you say that, I wonder how you’d feel about sex, national origin, disability, and plenty of other protected traits. But in any event, when someone seeking access to public accommodation is met with a “religious freedom” objection, it’s not at all apparent to me why sexual orientation should be different than other protected traits. This sort of “gay exceptionalism” smacks of prejudice in its own right.)

Plaintiffs in public-accommodations cases don’t necessarily want to eat only in that restaurant or use only that caterer—they want to be able to eat in all restaurants and use all caterers just like everybody else. And the point is that they have the right to do these things. They—we all—have the statutory right (and in my view the moral one) not to see “gays not welcome” written on the window of a florist.    

In almost every public-accommodations case, the Sullivan Defense (as we’ll call it for now) would win if it were valid. Why can’t a wheelchair user just go to the accessible theater on the other side of town? Isn’t she being an asshole for insisting on this theater? Why can’t a Muslim family just go to the other diner, the one that serves people like them? What assholes they must be for thinking that they have the right to eat where they want.

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On this week's episode of Versus Trump, Charlie and Jason discuss a new lawsuit from California challenging new regulations regarding Title X, an important federal family planning program. Listen now!

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Versus Trump: Is The State Department Discriminating Against Same-Sex Marriages?

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On this week's episode of Versus Trump, Charlie, Jason, and Easha discuss a decision from a federal court in Los Angeles ordering the Trump Administration to grant citizenship to both children of a same-sex couple born abroad to one U.S. parent. Listen now!

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There are reasons to worry about whether certain liberal justices on the Supreme Court fully appreciate that we are at an inflection point in the history of the Religion Clause

Nelson Tebbe

Brooklyn Law School

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University of Virginia School of Law