I traveled to Ashland, Ore., recently to give two speeches. After one of them, a man approached me to say that while he mostly agreed with what I had said during my talk, he took issue with one part: He didn’t understand why the owner of a business, in this case, a bakery, should have to serve LGBTQ people. After all, they could just go somewhere else, right?
This question, which, by the way, usually comes from people who don’t have to worry about being denied services anywhere, surfaces often enough that it deserves an answer. And anyone looking for one should start with a column in today’s Washington Post by Ria Tabacco Mar, an American Civil Liberties Union attorney who is representing Charlie Craig and David Mullins in Masterpiece Cakeshop v. Colorado Civil Rights Commission currently pending before the Supreme Court.
Mar, who is married to a woman, points out that, despite the progress our country has made in securing LGBTQ rights in recent years, folks in this community still feel the need to be invisible sometimes.
She writes about how simple actions undertaken by an opposite-sex couple, such as showing affection to your partner in a public place, can be difficult for a same-sex couple. She notes that when she’s out alone with her child and someone assumes she has a husband at home, she has to make a choice: explain that her partner is a woman or just let it go. (Paul Smith, a professor at Georgetown Law School who argued the landmark LGBTQ rights Lawrence v. Texas case, made similar points in a recent blog post.)
Now project that onto a larger screen: Prior to the Supreme Court’s ruling upholding marriage equality, I knew same-sex couples who hired lawyers to help them own homes together and provide for one another in the case of sickness or death. It wasn’t easy to craft these arrangements; it took time and money.
Some people could respond to that by saying, “Well, they could do it, right? They could get those benefits if they really wanted them.” But that’s cold and unsatisfying. The fact is, same-sex couples had to jump through several hoops and spend lots of money to secure the same rights, privileges and benefits that my wife and I acquired as soon as we said, “I do,” and signed a piece of paper. Our nation’s shared value of equal treatment, as well as simple decency, required us to level the playing field.
Yes, some same-sex couples in Rowan County, Ky., could have driven to another county to get a marriage license (although others might have lacked the means to do this), because County Clerk Kim Davis refused to issue licenses to them due to her religious beliefs – but they shouldn’t have to. And yes, Amanda Abramovich and Samantha Brookover, a same-sex couple in Gilmer County, W. Va., whom AU represented in a federal lawsuit last year, were eventually given a marriage license, after being insulted and preached to by a county official – but they shouldn’t have had to put up with that.
These cases present serious dignity harms, which aren’t nullified by the fact that a shop across town might be willing to serve a same-sex couple. (And, of course, in the case of government agencies, there is nowhere else to go.) As Mar notes, “Laws against discrimination can’t protect us from violence, but they can protect us from going about our daily lives in fear of being turned away from stores, banks and hotels simply because of who we are.”
She's right. Being told, “Your kind isn’t welcome here, so go somewhere else,” only adds to the pain and sting of being treated like you are a lesser person who should just remain invisible.
Religious Right groups have worked hard to make the owner of the Colorado bakery that turned away Craig and Mullins into a victim of persecution and a hero. He is neither. He’s simply a person who wants to take an entire segment of our population and treat them poorly because of his narrow interpretation of a religious book.
The baker is a practitioner of discrimination, plain and simple, and there’s nothing heroic about that. We’ve worked too hard to eradicate discrimination in America to give it new life under the guise of “religious freedom.”