Should it be legal to refuse service to gay people?
The question sounds simple. But it isn’t. Consider two scenarios. In the first, you’re a restaurant manager. Two women come in holding hands and kissing. They ask to be seated. You tell them, as politely as possible, that you don’t serve people who engage in homosexual behavior.
In the second scenario, you’re still the restaurant manager. But this time, the couple doesn’t ask to be seated. Instead, they tell you they’re going to be married in a few months. They’d like you to cater the wedding. You reply, as politely as possible, that you only cater “traditional” weddings.
Are the two scenarios equivalent? Most of my friends think they are. I don’t. But at the moment, my opinion doesn’t matter. The person whose opinion matters is Mike Pence, the Republican governor of Indiana. Pence recently signed a religious freedom law that has triggered a national firestorm. His supporters say the law protects their right to withhold services for same-sex weddings. His opponents say the law protects the right to discriminate against gay people in general. Pence seems incapable of articulating the difference.
For the past three days, Pence has struggled to answer both versions of the question. On Sunday, he gave a disastrous interview to George Stephanopoulos on ABC’s This Week. Pence was pilloried, rightly, for refusing to answer yes-or-no questions. But nobody seems to have noticed how the questions morphed during the interview. Here they are, verbatim:
1) Eric Miller of Advance America wrote that [the bill] “will protect those who oppose gay marriage.” He put up this example. He said: “Christian bakers, florists and photographers should not be punished for refusing to participate in a homosexual marriage.” So this is a yes or no question: Is Advance America right when they say a florist in Indiana can now refuse to serve a gay couple without fear of punishment?
2) Yes or no: If a florist in Indiana refuses to serve a gay couple at their wedding, is that legal now in Indiana?
3) One of your supporters who was talking about the bill right there. [He] said it would protect a Christian florist … against any kind of punishment. Is that true or not?
4) Does that mean that Christians who want to refuse service or people of any other faith who want to refuse service to gays and lesbians, that it’s now legal in the state of Indiana?
5) Do you think it should be legal in the state of Indiana to discriminate against gays or lesbians?
6) Yes or no: Should it be legal to discriminate against gays and lesbians?
Notice how the question changed. It began as a wedding scenario and evolved into a general question about discrimination. Pence ducked the wedding versions. Not until the end, when Stephanopoulos framed it as discrimination in general, did Pence finally say, “Hoosiers don’t believe in discrimination.”
On Tuesday, in a Wall Street Journal op-ed, Pence tried to explain himself. He wrote: “If I saw a restaurant owner refuse to serve a gay couple, I wouldn’t eat there anymore. As governor of Indiana, if I were presented a bill that legalized discrimination against any person or group, I would veto it.” This seemed to be an attempt to clarify that Pence wouldn’t tolerate refusal of services to gay people generally.
In an interview Tuesday morning on Fox and Friends, Pence repeated that he wouldn’t eat at a restaurant that refused service to gay couples. But he struggled when he was asked the more important question:
Q: Governor, would you take it one step further and support a law that would make it illegal to discriminate based on someone’s sexual orientation?
A: Well, let me say that’s not been my position. It’s not been the position of the state of Indiana. But if the Legislature brought that up, they can certainly have that debate.
Pence’s answer seemed hard to square with his earlier comments. If it’s wrong to discriminate against gay people, why shouldn’t the law prohibit such discrimination? But notice how much wiggle room he gave himself. That’s not been my position. They can certainly have that debate. This is how a politician talks when he’s deliberately leaving himself the option of switching sides. Pence isn’t prepared to follow his own logic and make anti-gay discrimination illegal. But he isn’t prepared to rule out that decision, either.
On Tuesday afternoon, Pence fielded questions at a press conference. He came with a mantra: The religious freedom law he signed “does not give businesses a right to deny services to anyone,” including “gay and lesbian couples.” He also declared: “No one should be harassed or mistreated because of who they are, who they love, or what they believe.” But again, Pence ducked when he was asked about adding sexual orientation to the state’s anti-discrimination laws. “I’ve never supported that, and it’s not on my agenda,” he said. “But it’s a completely separate question.” When reporters asked him whether he would sign or veto a bill that made this change to the discrimination laws, he ignored the question.
The most interesting part of the press conference came at the very end. Someone asked: “Do you personally believe that Christian businesses that have deeply held beliefs about marriage should be compelled to supply services—whether it’s photography, flowers, baking, across the board—to gay and lesbian couples?” Pence gave his boilerplate answer: “This law does not give a license to discriminate, it does not give a license to deny services.” But the interrogator persisted: “Do you think that business that have deeply held beliefs, Christian beliefs, that are right, good-thinking people of America and Indiana, should have to supply services to gay and lesbian weddings?”
Pence was pinned. He looked down, searching for an answer. Here’s what he came up with:
I don’t support discrimination against anyone. The question that you pose, though … We’re dealing here in a free society with always a careful balancing of interests. And the facts and circumstances of each case determine the outcome. What this legislation does … is provide a framework for determining whether or not government action puts a substantial burden on a person’s religious liberty. Now it is counterbalanced against whether there is a compelling interest. … And what courts have found, without exception over the last 20-plus years, is that the state has a compelling interest in combating discrimination. And I support that interpretation.
The questioner pressed for a more direct answer, but Pence turned away. A minute later, he ended the press conference.
What is Pence thinking? What is he going to do? What should he do?
Here’s my assessment, based on his comments over the course of his career, but especially during the past three days. Pence is a moral traditionalist. He doesn’t believe that any same-sex relationship should be recognized by the state as a marriage. He wants to protect the right of private citizens to refuse to participate in same-sex weddings. That includes refusing to sell goods or services.
His sympathies don’t extend, however, to refusing goods or services to gay people in other contexts. He feels that barring two gay men from a restaurant is ugly in a way that refusing to cater their wedding isn’t.
He understands, intellectually, that if it’s wrong to bar those men from the restaurant—in the same way it would be wrong to bar them if they were black or Jewish—then the logical conclusion would be to add sexual orientation to Indiana’s nondiscrimination laws.
But he’s afraid. He has seen the torrent of recent court rulings that struck down laws against gay marriage, based on the broader premise of equality. He’s afraid that if Indiana makes discrimination on the basis of sexual orientation illegal, that law will be used to compel Christian traditionalists, against their consciences, to provide services to same-sex weddings.
And he’s not alone. According to the most recent Gallup polls, 89 percent of Americans think homosexuals should have “equal rights in terms of job opportunities,” 77 percent think partners of gay employees should have health insurance and other employee benefits, 70 percent think gays should be allowed to serve openly in the military, and 67 percent think federal hate crime laws should “include crimes committed against people because they are gay or lesbian.” But only 55 percent think same-sex marriages “should be recognized as valid, with the same rights as traditional marriages.” One of every three Americans, including Pence, is somewhere between that 55th and 89th percentile. These people believe that same-sex marriage is morally objectionable in a way that homosexuality, per se, isn’t.
Do they have a case? Is there a rational argument against same-sex marriage that doesn’t justify discrimination against homosexuality or homosexual behavior? I think there is, though I disagree with it. But I am not the governor of Indiana. Mike Pence is. And if he thinks there’s a case to be made, he ought to drop the talking points, come out of his closet, and make it.