I think that the politics of the moment, and the conversations we have been having (including the reference to Jim Oleske's provocative article about religious objections to inter-racial marriage compared to religious objections to same sex marriage, *Interracial and Same-Sex Marriages: Similar Religious Objections, Very Different Responses* http://ssrn.com/abstract=2400100, call for a burrowing into the question of what constitutes anti-gay bigotry and how it can be distinguished from "sincere religious objections" to same sex intimacy. The history of racial prejudice in the U.S. suggests, and Jim's article shows, a deep structure of religious support and justification for segregation (and for slavery before that). Of course, many racial bigots did NOT rely on religious justifications (I grew up in upstate NY, surrounded by bigots who never mentioned religion in their racial attitudes). But some did so rely, and we now look back on them and say -- what? Their religion was insincere? Their religion was culturally determined by geography and Jim Crow culture? (Contrary to what has been written here, Jim Crow laws required segregation in government facilities, like public schools, but Jim Crow culture, NOT laws, kept lunch counters, hotels, restaurants, department stores, etc., segregated. The public accommodations title of the Civil Rights Act of 1964 may have pre-empted applications of trespass law, but it did not pre-empt state law requiring segregation in these private facilities.) All religions, in the social practices they prescribe, are culturally determined to some extent. So I think the lesson of the 1960's is that the commitment to Civil Rights meant we became legally indifferent to whether racism was based on sincere religious objections or not. Ollie from Ollie's BBQ had to serve people of color or "get out of the restaurant business," whether or not his desire to exclude had sincere religious components.
So what is now different about the LGBT rights movement? Some merchants who want to refuse to serve have sincere religious objections; some just have hostility or discomfort (homophobia, if they are really afraid of the interaction; but surely, many racists had or have Negrophobia.) Should we try, with our very limited tools, to protect the sincere religious objectors but not protect the "phobes"? What will we do with sincere religious objectors who are also "phobes"? (I strongly suspect that a mixture of religion and phobia are operating within many objectors; their phobia is buried inside a religious justification, but maybe that's true for only some, not all.) Or do we give up this (to me, futile) attempt to use law as a instrument to sort the sincere objectors from the bigots and phobes, and say, rather simply -- we can't possibly make those distinctions, and in the end we don't care about them. Your refusal to serve some classes of people hurts them (stigma, insult, indignity, and sometimes material harm). Legitimating that refusal to serve in the wedding industry legitimates it elsewhere; equality is indivisible. So we are going to treat you like we treated Ollie -- we can't know if your refusal to serve is sincerely religious, homophobic, or some inseparable mixture. Whatever it is, get over it or "get out of the business." The attempts to treat the current situation as different from the racial question -- geographic concerns about the Old South; slavery makes race sui generis -- seem to me deeply unpersuasive. But I would be eager to hear answers to the questions I pose above about separating religion from phobia/bigotry, whether it is do-able, and why it is worth the doing, in light of the mistakes and harms that such a process will invite. -- Ira C. Lupu F. Elwood & Eleanor Davis Professor of Law, Emeritus George Washington University Law School 2000 H St., NW Washington, DC 20052 (202)994-7053 Co-author (with Professor Robert Tuttle) of "Secular Government, Religious People" (forthcoming, summer 2014, Wm. B. Eerdmans Pub. Co.) My SSRN papers are here: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg
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