Now that same sex marriage is legal across the United States, gay and lesbian weddings are happening regularly. Unfortunately, despite growing acceptance of gay marriage nationwide, there are bumps in the road to the land of wedded bliss for many same-sex couples, as some states have passed laws making it legal to discriminate against them as they plan their weddings.
Laws allowing discrimination
Florida has a law going into effect in July 1, 2016, allowing clergy to refuse to marry same-sex couples. A Mississippi law permits businesses and clergy to refuse their services to gay and lesbian couples. A similar bill is pending in Missouri. Oklahoma and Texas clergy can also refuse to perform same-sex weddings. In fact, more than a dozen states have enacted or are considering so-called religious liberty statutes that would permit discrimination against LGBT persons.
Proponents of these laws say that clergy should not be forced to perform acts that violate their religious principles and that business owners should not have to provide their services for a celebration they are morally or religiously opposed to.
Federal law prohibits discrimination in public accommodations and employment for protected classes of people. But while race, color, sex, religion, disabilities, and national origin are all protected classes under US law, sexual orientation is not. Thus there is no current federal law that prohibits discrimination against same-sex couples. That leaves individual state laws to deal with the issue of discrimination in public accommodations when it comes to LBGT people. Twenty-one states have enacted laws that prohibit discrimination based on sexual orientation.
What the courts say
Refusals of service have popped up across the country, and many likely go unreported. But others proceed through the legal system, such as the denial by Masterpiece Cakeshop, a Colorado bakery, to provide a cake for a same sex wedding. The court in that case ruled that this refusal was a violation of the state public accommodations law, which prohibits the refusal of services because of sexual orientation. A similar case occurred in Oregon, where that bakery was fined for its refusal.
The right to refuse service
Businesses do have the right to refuse service to people, but they have to do so with a clear policy that is not based on discrimination against protected classes. For example, a bakery can have a policy not to make cakes with derogatory language on them. So a customer who wanted a cake adorned with four-letter vulgarities could be denied service, even if he or she is a member of a protected class, because the discrimination is not based on the customer’s protected-class status.
However, a bakery owner who refuses service to someone because the customer is gay is discriminating based on sexual orientation, even if that refusal stems from the business owner’s personal religious beliefs. Whether this would be permissible or not would depend on the local or state laws.
What it all means
And so gay couple who want to marry are faced with this: in 21 states, gay and lesbian couples cannot be discriminated against by clergy or businesses. In the other states there is currently no protection. And in a handful of states, such discrimination is fully legalized. How to navigate this patchwork system?
Some people say, “Well you don’t want a pastor to officiate your wedding if he doesn’t support gay marriage,” or “You wouldn’t want a cake made by someone who thinks your marriage is sinful,” or “Who would want flowers arranged by a florist who finds your life repulsive?” And those sentiments are probably true. But now that same-sex marriage is the law of the land, it may be time to consider extending federal anti-discrimination protection to gay and lesbian couples, and simplifying the process for everyone.