• Twitter
  • Facebook
News-Sentinel.com Your Town. Your Voice.
Opening Arguments

The right to refuse

If you're a wedding photographer in New Mexico and refused to take pictures at a gay wedding, too bad for you -- you've just violated your state's human rights act. So says the state Supreme Court, which cited the need to compromise in a multicultural, pluralistic society "to accommodate the contrasting value of others." This strikes me as an evenhanded response:

When you’re talking about services provided by the government, there’s no question in cases like this. The government can’t refuse to grant a drivers license or a fishing license or what have you to somebody just because they are Jewish or black or gay or female, etc. Everyone pays for the government and everyone is entitled to equal treatment and availability of services offered. Simple enough. But what of the private sector?

When you raise the specter of “reserving the right to refuse service” in private enterprise, one of the first images evoked is the famous Whites Only Lunch Counter. Now, if you are one of the hardest of the hard core, Big L Libertarians, you’ll claim that this is still too great of an intrusion of government control on private enterprise. The argument goes that the owner will prosper or suffer as a result of the policy as the market dictates. Black diners clearly need to eat, so other competition will rise to fill that vacuum. And in the extreme case, enough people will be angered by the policy that the restricted lunch counter will be driven out of business. It’s the Invisible Hand in action.. it either high fives your or smacks you down.

But still, that image makes many, many people feel extremely uncomfortable. Maybe the government has to step in. But if they do, the policy seems to be rather selectively enforced, doesn’t it? How about when Hooters refuses to serve anyone who is a Mayor who is a serial sexually inappropriate actor? How do eateries refuse service to people with no shirt or no shoes if it’s not illegal to go barefoot or without a top? (For men, at least.) For a less silly example, how about when many cemeteries refused to bury the body of the Boston Marathon bomber? Funeral homes tend to frequently be smaller, family run operations just like photography studios, often run out of people’s homes. Could they be sued for refusing service? If so, I never heard of anyone suggesting it. But in this case, because the photographer turned down the job for a gay wedding, they have now lost in court at every level and will pay for it in cash.

Freedom and equality are uneasy allies, no? You can't advance one without diminishing the other. Your right to equal treatment reduces my freedom to associate with whomever I want to. My right to withhold service based on my conditions might reduce your ability to receive that service. We're always adjusting the line.