Today the US Supreme Court refused to hear an anti-gay discrimination case. A New Mexico photographer named Elaine Huguenin said she took pictures of "traditional" weddings, but she refused to take photos of a ceremony between two women because it would violate her religious beliefs. Huguenin was charged with violating New Mexico's antdiscrimination law, which says that businesses open to the general public can't pick and choose which customers they serve based on their sexual orientation. She lost in New Mexico and appealed.
Getting rejected by the Supremes today means the lower court's ruling stands: Elane Photography has to serve gay people, too. But Andrew Sullivan, a gay conservat-ish, recently said that if he were refused service, he would just shop somewhere else:
Readers know I have sympathy for those—like evangelical florists, say—who feel that catering a same-sex wedding violates their conscience. I don’t like the idea of forcing those people to do something that truly offends them; if I were planning my own wedding again and found that a florist really had issues, I’d find one who didn’t.
Sullivan said this debate rests on an important distinction: Are these religious florists, photographers, and bakers who discriminate against gay clients trying to protect their religious liberty or are they expressing anti-gay animus? That's a fun question to bat around, but it's also an unanswerable question—there's no dowsing rod that locates superstition but steers away from bigotry, so we'll never know if it's liberty or animus at play. Moreover, it doesn't matter what their excuse is. Sullivan kept beating his drum in a follow-up post that accused me of "going with animus" in response to an Arizona bill that would allow discrimination. Sullivan's kinda right: I do think many right-wing business owners are using the gospel as a shield to defend their bigotry ("animus" isn't a strong enough word). But my piece was actually written before the Arizona bill, about a case in Washington State, and also about how these lawsuits protect victims who can't just go somewhere else:
Activists and lawmakers hustled their butts for more than a decade to include sexual orientation in our state's antidiscrimination statute. We went to the mat to pass gay marriage. What's the point of those victories if we're willing to give up what we've just won? Who are those laws for if we turn our backs on the people being refused service? We didn't pass those laws as feel-good keepsakes for gay-ol' Seattle, where we don't need 'em. Those laws are essential for the gays toughing it out in the hateful hinterlands. Failing to sue would set a precedent that the antidiscrimination law—which Senator Cal Anderson fought his entire career to pass, it bears mentioning—isn't worth shit because the gays are too fucking cowardly to enforce it.
Antidiscrimination laws aren't written just for smart, educated white gays like Sullivan—or people of color, immigrants, people of unusual faiths, etc.—who have enough spending money to pick their purveyor and live in cities where there are plenty alternative businesses to choose from. Antidiscrimination laws are written for everyone: including people of little means, people who live in obscure locations, and people who have few shopping alternatives. Victims of discrimination can't always just "find" a different business that will serve them. And they really won't have alternatives if the progressive left doesn't stay vigilant with lawsuits, because failing to enforce antidiscrimination laws effectively condones discrimination, which will result in more businesses discriminating with impunity.
"[L]et’s do all we can not to force the issue," Sullivan says. "If we decide that our only response to discrimination is a lawsuit, we gays are ratcheting up a culture war we would do better to leave alone."
It's not that I completely disagree with Sullivan—the cost of these lawsuits may indeed be "ratcheting up a culture war"—but that's a worthwhile price to pay.
The left is winning the culture war. Amidst these lawsuits and the attention they attract, states are steadily passing gay marriage, often because a judge orders the state to do it with a blisteringly pro-gay ruling. In fact, a judge is the ideal person to make these decisions. Gay marriage and other human rights shouldn't be subject to a vote of public opinion, and likewise, anti-gay-discrimination laws shouldn't be put up to a test of public opinion; they shouldn't be subject to the results of a focus group or a poll or a marketing agency, but a test of constitutional fairness and of state law. That requires a lawsuit, even if it requires ratcheting up a culture war—a war we continue to win in opinion polls and in court.
The courts are not acting with animus. They are, slowly but steadily, just doing what's right. And that requires putting lawsuits in front of them regardless of the reason for the discrimination—was it religious liberty or animus?—because we'll never know and it doesn't matter.