udging by the latest skirmishes in the battle over gay marriage, perhaps everyone could use a refresher course on the meaning of "tolerance."
The locus of the debate has shifted to the wedding industry itself. Until recently, the industry didn't need to concern itself over heterodox forms of the ceremony and celebration, but the passage of same-sex marriage laws (or judicial rulings imposing them) have put the focus on commercial enterprises such as bakers, florists, and photographers. Do these merchants have the right to refuse service in order to avoid participating in an event that might violate their religious beliefs?
In Colorado, at least, the answer is no. A judge in Denver ruled in December that Masterpiece Cakeshop and its owner, Jack Phillips, had illegally discriminated against Charlie Craig and David Mullins, who wanted a wedding cake for their nuptials. Phillips, a Christian, refused to participate in the event, but he won't have that option in the future. No damages were assessed in the case, but Judge Robert Spencer informed Phillips that he could not refuse service on the basis of his religious beliefs if it meant discriminating against gays. Phillips, for his part, says he'll close his business before being forced to participate in a same-sex wedding.
Left unspoken is why anyone would want a baker for their wedding who didn't want to participate — or a florist for that matter, or a photographer. Weddings are traumatic enough for all concerned without deliberately boosting the tension levels to a Spinal Tap-esque 11. Leaving the issue of religious belief aside for a moment, Phillips cannot possibly be the only baker in Denver capable of producing a wedding cake. Why not take Phillips at his word, tolerate his religious beliefs, and find a baker with more enthusiasm for the event?
Instead, the happy couple decided to add a lawsuit to their celebrations, and a business owner had to hire an attorney only to find out that he can't decide the limits of his religious expression in the flour-and-sugar market. Phillips isn't alone, either; there have been several such cases around the country over the past year. Wedding-cake activism forced the state of Oregon to open a civil rights investigation of Aaron Klein, after the Gresham baker refused to participate in a gay wedding. Oregon law prohibits discrimination based on gender identity and orientation in public accommodation. This kind of legislation broke down barriers to ethnic minorities and women, but didn't usually force merchants to participate in events that their religious beliefs bar.
That's the key issue here. Most people, including faithful Christians, would and should object to refusing service to gays and lesbians simply on the basis of their orientation and lifestyle. But there is a difference between baking a birthday cake and baking a wedding cake, or photographing a birthday party and a wedding. The latter involves participation in an event that very clearly cuts across the religious beliefs of a great number of Americans, and hardly seems unreasonable for a demurral on that basis.
However, the backlash has produced its own brand of intolerance in Arizona. Responding to the arguable infringement of religious beliefs, the Arizona legislature passed a bill, SB 1062, that would broaden the defense against civil rights actions on First Amendment grounds of free religious practice — but it arguably goes so far as to allow any sort of religious objection to trump any claim of discrimination. (A similar bill is also making its way through the Georgia legislature.)
How bad is the bill? It's bad enough that both Republican senators from Arizona, John McCain and Jeff Flake, are urging Gov. Jan Brewer (R) to issue a veto. The Arizona Chamber of Commerce wants a veto, too, since the group fears it would damage tourism by putting out a Not Welcome mat at the state's door. Even one of the bill's original legislative sponsors, state Sen. Bob Worsley (R), has called for a veto. "I have not been comfortable with this for some time," Worsely told the Associated Press in explaining his reversal. "I think laws are on the books that we need and have now seen the ramifications of my vote. I feel very bad and it was a mistake."
Legislate in haste, repent at leisure.
The passage of the bill has stoked hyperbolic and amusing commentary on all sides, including debates over whether Jesus would have baked a cake for a gay person. All of this misses the point by a mile, which is the need for tolerance. The religious beliefs of these vendors can and should be assumed to be sincerely held, and under the law the government is required to assume that about religious beliefs. Wedding cakes and photographers are not exactly scarce commodities, nor are they an overriding state interest in the same sense that housing might be in discrimination claims. Both sides have used the legal and legislative systems like sledgehammers, and states have been too eager to impose forced participation rather than foster tolerance and let adults figure out their options.
Tolerance does not mean acceptance or participation. It means allowing people to make their own choices about what they choose to do, and to respect the ability of their fellow citizens to do the same as long as it does no injury to them. What this contretemps shows is that America is getting a lot more intolerant the more "tolerant" we become.
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