So, having noted in our previous two posts that in a pluralistic society which values religious/speech freedom as well as civil rights against undue discrimination, and having suggested the foundational principle of distinguishing between “High Personal Involvement” and “Low Personal Involvement” as a guide for when such rights come into conflict (as they do in the current LGBT Civil Rights vs. Religious Freedom debate in our culture), we are now in a better position to suggest a practical solution to the seeming impasse between the two sides.
It involves moving the debate away from nebulous and overly-broad concepts of “civil rights” and “religious freedom” altogether! Such concepts are useful for firing up one’s particular “side” emotionally and getting people to vote based on fear or moral conviction…but not much else when it comes to the question of LGBT civil rights and traditional marriage proponents’ religious freedoms. Appealing to these two terms (“civil rights” and “freedom”) over and against one another in the gay marriage debate is like trying to do surgery with a sledge hammer.
Instead, we would suggest that when it comes to government legislation on this issue, the focus should be moved to the nature of the actual goods/services being sought by the consumer.
What we mean by this is simple:
- Any good or service which inherently consists of a speech-act, religious message, or creative artistry (for the sake of ease, we will refer to these types of goods/services as “Communicative” ones) should be protected under the First Amendment and exempt from civil rights legislation, should a business owner choose to discriminate in how they make it available to consumers.
- Any good or service which is not inherently Communicative, and is thus speech-neutral in and of itself, would fall under Civil Rights legislative protection, and business owners would not be free to discriminate in regards to it.
So, for example, Communicative goods or services would include things like:
- religious goods or services
- artistic creations (things made for the purpose of aesthetics or commemoration)
- celebratory events
- visual arts
- graphic design
- or anything else which involves a person’s creative faculty, speech, or personal involvement.
Non-Communicative goods or services would be basically everything that does not intrinsically involve communicating a message or participating in celebratory, religious, or ethical events. It would include things like:
- Regular food (as opposed to celebratory culinary creations or religious meals such as Eucharist/wine/Matzoh/etc.)
- Regular housing (as opposed to religious communes, retreat centers, etc.)
- utilities (electricity, water, gas, communications, etc.)
- Regular clothing (as opposed to religious vestments, artistic fashion, celebratory garb, etc.)
- Maintenance goods and services (mechanical, home, lawn, agricultural, technological, etc.)
- shipping and transport
- self-service technologies (printing, graphic design, web design, etc.)
- raw materials
- Internet access and web-hosting
- or anything else that does not inherently communicate a message or involve a person’s creative faculty or personal involvement in communicating a message.
Non-Communicative goods could even include items which may have been previously created as Communicative, but which are now for public sale in a storefront marketplace setting. For example, artwork or decorative pieces sold generically on the shelves of a bakery or photography studio.
Okay, but what would this look like in actual practice?
Well, consider a Christian or Muslim bakery which does not make wedding cakes for same-sex weddings. Such businesses would not be required to create a cake or any other decorative item specifically for the celebration of a type of marriage that they have strong religious objection to. This is because the creation of such a celebratory/decorative cake (especially if it contained writing such as “Congratulations Sue and Eileen!” or any other message for that specific same-sex wedding) would be a Communicative service. The cake would serve no other purpose than to celebrate and commemorate a custom that the baker finds objectionable.
However, the Christian or Muslim baker who did not support same-sex marriage would be required to sell any cake or item on their shelves to anyone who walked in their door or ordered from their website. This is because the sale of something already created and available for public purchase is NOT an inherently Communicative service. Thus they would not be allowed to discriminate against LGBT (or any other) persons themselves, regardless of what they believed about the person’s lifestyle or actions. This protects the civil rights of the LGBT (and any other) community, while also upholding the religious/speech freedoms of the businessowner. No one side’s view would be able to totally trump the other’s.
Likewise, to use another example from recent news, the mechanic in Indiana who said he would not work on the cars of any LGBT persons would NOT be protected by religious freedom claims because fixing an automobile is not inherently Communicative. It is speech-neutral by nature and involves no personal involvement in something of a Communicative or celebratory nature. The same would apply for any doctor who refused to treat patients because of their sexual orientation or parental situation. Such people would not be able to hide behind “religious freedom” laws because their goods/services were not of a Communicative (and thus protected) nature.
So, a photographer would be free to refuse to shoot a same-sex wedding for whatever their personal reasons (because photography, as art, is inherently Communicative and because weddings, as cultural celebrations, are inherently Communicative). But a photography store could not refuse to rent or sell equipment to someone who wanted to shoot a same-sex wedding (because renting or selling photography equipment is not inherently Communicative). There are many more examples that could be used to illustrate this basic distinction, and no doubt courts would probably have to weigh in on those that were more ambiguous. But the overall distinction is fairly self-explanatory and quite reasonable.
This distinction between Communicative and non-Communicative goods and services would also alleviate the genuine concerns LGBT advocates have about widespread discrimination taking place in areas where traditional views on sexual relationships are prevalent. Restaurants, gas stations and any other public business would not be able to refuse public service to LGBT couples. Their housing rights would be protected under Civil Rights legislation. So the fear of a return to Jim Crow-like conditions where gay families were turned away from hotels or not allowed to eat in restaurants or use the same public facilities as heterosexuals would not take place. The core goal of Civil Rights legislation—widespread discrimination against a class of society—would be upheld completely.
However, the religious freedom and First Amendment rights of those business owners who reject the morality of LGBT sexual ethics would also be protected because they would not be legally required to advocate, celebrate or condone through their Communicative goods or services something they strongly object to. A family bakery wouldn’t lose their life savings simply because they did not want to create a decorative cake to celebrate a type of wedding they do not agree with. They could simply refer the couple to another of the MANY bakeries in the area which would gladly accept their business and allow community to decide whether or not they want to continue doing business with the bakery that refused to create the decoration. This would uphold the genuine rights of everyone involved to a degree that is beyond reasonable.
Of course there would undoubtedly be cases in which the lines between Communicative and non-Communicative goods or services might be somewhat blurry. But this is a regular feature many types of law involving intellectual property, copyright, claims of libel or defamation…so it is not unreasonable to suggest that courts could rule on a case-by-case basis if the legal conceptual framework of Communicative vs. non-Communicative is first put in place.
And such a distinction is not beyond the ability of our courts to determine to a fair degree if the foundational principle of High/Low Personal Involvement is used to guide them in exceptional cases.
We suggest that this simple distinction between goods or services which are Communicative and those which are not, if it were used in crafting legislation, would eliminate the VAST majority of conflicts between LGBT and Traditionalist advocates…as well as many other cases where religious freedom and civil rights rub up against one another.
It would maintain the most rights for the most people, and would allow us as a pluralistic society to coexist legally with those who do not share our particular ethics, religious convictions or philosophical worldview.
Of course it would not satisfy those on both sides who seek full capitulation of everyone else to their way of thinking. Such individuals would continue to demonize those with whom they disagree as either “bigots” or “perverts” (or any number of similar slurs often found in current rhetoric).
But from a legal perspective, the vast majority of Americans who reside somewhere between the extremes of the culture warriors would have both their Civil Rights as well as their Religious Freedoms protected from coercion and abuse.
In other words, it would uphold the most good for the most people…which should be the goal of all good legislation, should it not?