It's possible that somewhere there is a graduate student in religious studies who hasn't written a personally-inflected thinkpiece about Indiana's religious-freedom law. Now, I don't say it's likely, but it is possible.
This is a post arguing that given the specific split of public and private that we have, concerns about equality in the public space outweigh a business owner's objections. I am arguing this from the perspective of providers of services who object to serving gay people or gay weddings for religious reasons rather than those denied service.
I am taking this perspective because of Ross Douthat's opinion column in yesterday's Times that argues a tolerant society needs room for believers to draw lines for whom their businesses will and will not serve.
I'm arguing against him specifically because his is the most serious register of the religious providers' position that I can understand. Douthat has made a career of arguing for conservative causes that comes from a place of taking progressives seriously.
In that spirit, I want to respond to Douthat's own piece by taking the perspectives he presents seriously: particularly that religious commitment presents significant obstacles of conscience to dealing with LGBT people, that it is not simply "priggishness", "bigotry", or "superstition".
First, the article has a few problematic arguments interspersed in the general scheme that need addressing. Douthat claims laws like Indiana's could protect religious minorities subject to the pressures a majority would not understand.
Indeed, we do need to remind ourselves that an orthodox Jewish or Muslim person riding the subway, with its pressing crowds and trashy ads, is exposed to a pervasive and dominant culture antithetical to his moral life. And, there's no comparable situation in which this orthodox person is subjecting us to her community's norms of gender and space.
However, these religious-freedom laws are being written in the same states that have or want anti-sharīʿa measures, which assure us that a hypothetical Muslim Hobby Lobby could never discriminate like the real Christian Hobby Lobby does.
Douthat also claims it's only a few florists and bakers who want to refuse service to people, and then only if they're doing gay things like getting married to someone of the same sex, not as gay people. This hardly amounts codified, universal segregation.
On this last point, something doesn't have to be Alabama in '65 to count as wrong, and the polite consternation over Indiana is hardly the march in Selma.
But more to the point, it is clear that religious providers don't want to imply endorsement for gay marriage, which wedding-participation implies and merely serving gay people does not.
I don't really understand this claim, does serving at a wedding imply support for the couple against potentially objecting in-laws? Does it imply support for the couple's marriage qualifications? Some religions make these quite strict, and I doubt the caterers call the officiant to make sure.
To the main point: the objectors' distress is real, but I would argue that in the American framework of accommodation, they are on the wrong side of the public-private divide.
This divide comes from the 19th century. It is so integral to bourgeois society such that we moderns can't easily think beyond it.
In the mid-20th century, most rich countries reshaped the nature of the public realm through new understandings of their citizens' rights. In modern Europe and East Asia, people came to have rights to health care, education, and protection of their natural and cultural environment, and the state expanded to guarantee these.
The exception to this expansion, of course, was us, untouched by war. In our country, you don't have a right to life or to make a living.
In the US, the civil rights movement moved this divide slightly while keeping it intact. However, it did so in a peculiarly American way. Like FDR wanted employers to give people health insurance rather than the state, LBJ said luncheonette owners could no longer refuse people, and so it became businesses' legal responsibility to offer themselves.
What this American settlement does is it makes the private-public distinction a division between two sides of a potential contradiction. One is perfectly within her rights to never invite foreigners to dinner, but one cannot refuse to seat people at one's restaurant because she thinks they come from somewhere else.
And so, no state will force you to go as a guest to a gay wedding, but you're not properly in the wedding services business if you won't serve one.
My answer to the conservatives worried about the state having rights over their public accommodations is to do what they do best: privatize.
When public schools integrated, strong private and home school networks built up. When most colleges traded religious discrimination for socio-economic discrimination, robustly Christian alternatives created a new kind campus, one where confessional and moral pledges are a main part of the ethical life of the students and faculty.
Since many religious people feel that the whole of a wedding belongs within a church, it is not hard to imagine a private vendors' association or a network of church-affiliated clubs to host weddings without any outside stipulations on whom they must or must not serve.
I don't know if such a business would be sustainable, although membership gyms, college alumni clubs and the vendors who serve large churches are. But, our country's model of market maximalism does not provide someone a right to a profitable business in which her deeply-held beliefs are unchallenged.
If my "solution" to people's difficulties sounds forced, I think it is. That is because I think the public-private settlement of the Victorian era, slightly revised by civil rights, feminism and gay liberation, forces our thinking into these spaces defined by these conflicts. It is a situation of enforced intimacy, and one with goods Douthat registers, but that needs consideration for how its order became the dominant one, forsaking all others.
