I've been thinking about a little thought experiment, and I
thought I'd run it past this list to see whether people see it as helpful.
Imagine a state in which prostitution is legalized. A
prostitute offers her services to the general public (perhaps through a web
site, which as I understand it is not uncommon). She is generally not very
selective, because it's just business. But she doesn't like black people. A
black would-be customer feels understandably insulted by this, so he sues her
for discrimination in public accommodations. And the state law does cover all
businesses, bricks and mortar or not, that provide goods or services to the
general public. (That, after all, is the sort of law that covers bakers,
wedding photographers, and perhaps ministers who charge for their services.)
My inclination is that the prostitute should have an absolute
right to discriminate on any basis she wants, whether it's race, religion,
marital status, age, or whatever else. And that is true even though she
charges money, and generally provides her services to everyone. (I say "she"
and "he" in this example, but of course the same would apply regardless of the
sex or sexual orientation of the parties.) The choice of whom to have sex with
is a personal choice, even when done commercially, and no-one should have to
have sex with someone they don't want to have sex with - on pain of either
facing a fine or having to quit one's chosen line of business - no matter how
many for-pay partners they might have. Are people on this list with me so far?
Now the next step: I think that, while sexual conduct should
involve a right to choose for particular reasons having to do with bodily
autonomy, some other conduct should involve a similar right to choose for other
reasons. Religious autonomy, intellectual/expressive autonomy, and
personal/familial autonomy are examples of that. Forcing a member of the
clergy to perform a marriage he views as unholy, on pain of having to surrender
his livelihood (or even a major outside source of income) strikes me as wrong
in a way similar to forcing a prostitute to engage in a sexual transaction that
she views as repulsive (even if we don't at all share her judgment about the
repulsiveness). Naturally, the similarity is distinctly limited: but it is
present in the way important here, which is that people should remain
autonomous in their religious behavior as well as their sexual behavior.
I would say the same about, for instance, a freelance writer who
is willing to serve most customers, but who refuses to write press releases for
the Church of Scientology (notwithstanding a ban on religious discrimination in
public accommodations), or a singer who refuses to sing songs praising a
same-sex married couple, or a wedding photographer who refuses to create
photographs that portray as beautiful and sacred something she views as sinful.
Again, there should be a zone of intellectual/expressive autonomy in which
people should be free to choose what expressive works to create and what not to
create (and for whom), even if they do it for a living. And I would say the
same about certain zones of personal and family life, such as choosing whom to
rent a room in one's apartment (see the Ninth Circuit Roommates.com case) or
whom to hire as a nanny for one's children.
Naturally, I agree that people may have different views of where
that zone of autonomy and choice should end. Some might, for instance, say
that it applies to sexual autonomy but not religious, intellectual, or
family/housemate autonomy. Or some might say that it applies to some kinds of
intellectual autonomy (e.g., the writer and maybe the singer) but not others
(e.g., the photographer), because some forms of creation of speech are more
intellectually significant than others.
But if I'm right about the racist prostitute, then the one thing
that we can't say is that, just because one opens up a business in which one
generally serves all members of the public who are willing to pay, one is
necessarily subject to antidiscrimination law (even as to race discrimination).
And if I'm right that choices about engaging in religious ceremonies are as
significant - albeit significant in a different way - as choices about engaging
in sexual transactions, then the Coeur d'Alene City Attorney's position is
mistaken. Does that make sense?
Eugene
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