Frame Game

The Case for Anti-Gay Discrimination

Opponents of same-sex marriage want a broader right to discriminate against gay couples.

An anti-gay protester at the Supreme Court, Oct. 6, 2010.

Photo by Kimihiro Hoshino/AFP/Getty Images

Opponents of same-sex marriage are asking for federal protection. They say their beliefs are rational and should be respected, by law, under the principle of freedom of conscience. They’ve built their case around photographers, florists, and other entrepreneurs who don’t want to participate in same-sex weddings. But the protection these advocates seek is much broader. It would guarantee the right of any citizen to withhold any service that might countenance a same-sex relationship.

What they’re defending, in other words, isn’t a position on the definition of marriage. It’s a position against open homosexuality. It’s anti-gay.

The difference becomes clear when you read the opponents’ arguments and their legislation. On Monday two intellectual leaders of the resistance, Ryan Anderson and Robert George, published an essay defending their ideas. In it they use the word “marriage” 56 times, implying that the debate is only about whether same-sex relationships must be acknowledged as marriages. In reality, however, they go further:

For years, a central argument of those in favor of same-sex marriage has been that all Americans should be free to live as they choose. But does that freedom require the government to coerce people, against their consciences, into participating in or facilitating celebrations of same-sex relationships? In a growing number of incidents, the redefinition of marriage and state policies adding sexual orientation and gender identity (SOGI) to the lists of protected classes under non-discrimination statutes have led to the intolerance and intimidation of citizens who believe that marriage unites a man and a woman and that sexual relations are properly reserved for marriage. 

Notice the language. Participating in or facilitating celebrations of same-sex relationships. Sexual relations are properly reserved for marriage.

That language wouldn’t just protect a photographer’s right not to participate in a same-sex wedding. It would protect his right to refuse to photograph a same-sex couple at all. Any picture of the couple expressing romantic love could be construed as celebration. And when you pair a heterosexual definition of marriage with rejection of unmarried sexual relations, you create a no-win situation for gay couples. They can’t get married, and because they’re unmarried, they can’t have a sexual relationship. A photographer, by this logic, can refuse to take any picture of them as a couple.

Five paragraphs later, the authors reinforce this point:

While Americans are free to live as they choose, no one should be compelled against conscience to facilitate a same-sex sexual bond. Opposing such sexual partnerships on conscientious moral grounds is not the equivalent of racism. 

Bond. Partnership. That’s clear license to withhold commercial services from any same-sex couple, regardless of whether they’re getting married.

Click the link in the passage quoted above (“growing number of incidents”), and you’ll be taken from the essay to a Heritage Foundation briefing paper by Anderson and another colleague, posted four weeks ago. The paper uses the same language:

Policy should prohibit the government from discriminating against any individual or group, whether nonprofit or for-profit, based on their beliefs that marriage is the union of a man and woman or that sexual relations are reserved for marriage. The government should be prohibited from discriminating against such groups or individuals in tax policy, employment, licensing, accreditation, or contracting. …

In a nation founded on religious freedom, government should not attempt to coerce any citizen, association, or business into celebrating same-sex relationships.

Again, that’s a no-win policy for same-sex partners. A photographer can refuse to take a picture marking the one-year anniversary of their relationship. A hotel can refuse to let them share a room, on the grounds that gays can’t marry and that “sexual relations are reserved for marriage.”

The briefing paper calls for passage of the Marriage and Religious Freedom Act, introduced in the House and Senate late last year. More than 100 House members are co-sponsoring the House bill; 17 senators are co-sponsoring the Senate bill. Here’s the House version:

The Federal Government shall not take an adverse action against a person, on the basis that such person acts in accordance with a religious belief that marriage is or should be recognized as the union of one man and one woman, or that sexual relations are properly reserved to such a marriage.

And here’s the Senate version:

Notwithstanding any other law to the contrary, the Federal Government shall not take an adverse action against a person, wholly or partially on the basis that such person acts in accordance with a religious belief that marriage is or should be recognized as the union of one man and one woman, or that sexual relations are properly reserved to such a marriage.

Both versions include the crucial clause: or that sexual relations are properly reserved to such a marriage. The phrase “such a marriage” conveys that a hotel can refuse to let even a legally married gay couple share a room, because their marriage is the wrong kind of marriage.

Refusing services for a gay relationship or partnership is fundamentally different from refusing services for a gay marriage. First, it lacks the rational basis that George and Anderson presented in their book, What Is Marriage? The book articulates a theory of marriage based on procreation and complementarity. I’ve defended this argument as rational, though flawed. But the argument doesn’t cover nonmarital same-sex relationships. Why is it rational to oppose such relationships? Why is refusal to photograph a same-sex couple more defensible than refusal to photograph an interracial couple?

Second, rejection of same-sex relationships seems, on its face, inhumane. Unless you think most homosexuals can be converted to heterosexuality—and even among conservative Christians, that belief is dwindling fast—you’re asking gay people, in effect, never to express or receive romantic love. Can you imagine being sentenced to a lifetime of such desolation? For an involuntary, immutable characteristic?

I’ve defended people such as George and Anderson against casual analogies between same-sex marriage and interracial marriage. But that defense applies only if your concern is the definition of marriage. If you want to argue that marriage is historically procreative, and that for this reason a same-sex relationship can’t be a “marriage,” I’m willing to listen. But you’d better explain how you’re going to let gay people live decent lives and receive the honors and benefits we bestow for lifetime commitments. Peter Berkowitz, a fellow at the Hoover Institution, passes that test in his recent essay on this question. “Arguments against gay marriage,” he writes, don’t “preclude the recognition of civil unions that recognize the dignity of gay couples” and guarantee joint property rights.

If, however, your position is that same-sex couples should be categorically ineligible for such honors and benefits, or that any expression of same-sex love is immoral, then I’m hard-pressed to understand, in light of the general immutability of sexual orientation, how your view is rationally defensible. And I don’t see why you should be legally entitled to refuse services based on homosexuality, any more than you could based on race.