When Colorado baker Jack Phillips refused on religious grounds to bake a wedding cake for a gay couple, he soon found himself knocked to ground by the strong arm of the state. A Colorado judge evoked anti-discrimination law and ordered Phillips never again to refuse a gay couple, or he would face jail time. Phillips, an Evangelical Christian, believes that with his art as a baker he is participating in the wedding ceremony, and that participating in such ceremonies is against God's will.
This is not the only such case that has come up since same-sex marriages began gaining recognition from our state governments. Religious Americans, usually conservative Christians, are finding themselves on the wrong side of the law. All an offended gay couple need do is file a complaint of discrimination, and the Christian faithful will either be forced to recognize the new marriage or face fines or even jail time. Thus the entirely novel phenomenon of gay marriages, something never before seen over millennia of Western history, is easily winning out against Christians who cannot, on grounds of faith, acknowledge such marriages as possible. In the new America created by "marriage equality", the Christian wedding photographer unwilling to shoot a lesbian wedding apparently has no choice but to smile and shoot.
A recent bill proposed in Kansas, which would have given religious citizens the right to refuse services to gays and lesbians, was an attempt to protect religious liberty under fire. The legislation was too broad and extreme in its framing, however, and is not likely to pass.
Personally, I would like to see balance on this issue. I think, besides, that balance is possible and hopefully will win in the long run.
In my view, civil libertarians are right to insist that services being offered to the public must be offered to all the public--that a businessperson's belief that homosexuality is sinful does not give him or her the right to refuse to serve gay customers. The extremist bill up for vote in Kansas deserves to fail. Passing it would enshrine discrimination against LGBT people across the board: even government employees would feasibly be able to deny service to gays or lesbians on religious grounds. This is clearly not the right way to go.
That the Kansas legislature didn't get it right this time does not mean, however, that the issue of religious liberty has been settled. Far from it. The First Amendment demands protection of Christians and others who have religious convictions relevant to marriage. How can such believers be protected?
One place we may draw the line here is where it comes to personal statement of belief--there where one's very words force one to take a side in the marriage debate. An example might illustrate what I mean.
Say a gay man staying as a guest at a hotel is on his way out to get coffee. On his way out he asks the desk person to pass an item on to his husband, who is still in the room, and says further that he will be back in an hour. The husband in question comes down from the room a couple minutes later and as he's leaving the desk worker calls out to him: "Sir, excuse me. Your partner asked me to pass this to you. He said to tell you he'd be back in an hour."
"Oh," the man replies as he steps up to the desk. "That's not my 'partner', as you say, it's my husband. We told you as much when we checked in."
"He asked me to pass this to you, sir," the desk worker repeats.
"Please say, 'Your husband asked me to pass this to you.' Please just say that sentence, okay?"
"Uh," the desk person replies. "I'm sorry, but my religion doesn't allow me to consider you married. I will just refer to you as partners. No offense meant, sir."
What will happen next? Most likely the angry guest will call for the manager, complain that the desk worker has insulted him--"I thought this was a 5-star hotel", etc., etc.--and the upshot will be that the desk worker will get a dressing down on the spot and most likely be fired, probably that very day.
I would like to see laws protecting that hotel desk worker from being fired for his religious beliefs. I think a balanced and fair approach here is possible. In my view, a hotel should not have the right to turn away a gay couple, but this does not mean that an employee on the job can be compelled to acknowledge gay or lesbian couples as married. We must find a middle course to steer here, a legal compromise that protects both sides on what is, after all, a deeply contested and so far uncharted cultural territory.
Thus my bottom line: Any individual at work must certainly serve gay and lesbian couples, but need not actually say they are married while doing so.
As for the dissenting wedding photographer, she must accept the job to photograph a same-sex wedding, but must also have the right to point out to the marrying couple that during the photographs she will not refer to the individuals as husband or wife or spouse, but as partner. Her religion dictates as much. If the couple in question then wants to employ this particular wedding photographer, that's their business, but on the day of the shoot they should be ready to hear things like: "Okay, let's get a shot of you and your partner standing in this doorway."
This is how America may solve this conflict equitably, protecting the rights of both sides. People should never be denied service, as such denial is discrimination. Likewise, people should never be forced to say "married" when they don't believe so, as such a compulsion infringes on religious liberty.
A slightly updated version of this article, taking into account similar legislative proposals in Arizona, was posted at Daily Kos on 02/23. It was followed by a nearly useless discussion thread, which ended in me again getting "timed out" (read: censored) from the site. For other posts on this issue, see Same-Sex Marriage: Is there any such thing?
Update 04/19/15: I've since substantially rethought some of the issues raised in this post. See: Gay Marriage and the Bigotry of American Liberals E.M.