http://www.nytimes.com/2014/03/02/opini … ef=opinion
Douthat is honest; he acknowledges that gay marriage is going to eventually be legal nationwide, the only question being "the timing of the final victory — and for the defeated to find out what settlement the victors will impose."
What does he mean by the "settlements"? He offers two possibilities. One is whether "the unwilling photographer or caterer would be treated like the proprietor of a segregated lunch counter, and face fines or lose his business — which is the intent of recent legal actions against a wedding photographer in New Mexico, a florist in Washington State, and a baker in Colorado."
The other possibility, the one Douthat claims Andrew Sullivan shares: "...religious conservatives would essentially be left to promote their view of wedlock within their own institutions, as a kind of dissenting subculture emphasizing gender differences and procreation, while the wider culture declares that love and commitment are enough to make a marriage. And where conflicts arise — in a case where, say, a Mormon caterer or a Catholic photographer objected to working at a same-sex wedding — gay rights supporters would heed the advice of gay marriage’s intellectual progenitor, Andrew Sullivan, and let the dissenters opt out 'in the name of their freedom — and ours.' "
I want to first point out something I am guilty of. In defending same-sex marriage, I have often used the defense that "it won't have any impact on you at all." I concede now that this is probably not going to be the case. The law doesn't allow discrimination of protected classes, and gay people will soon be part of the protected (whether it be indirectly re-interpreting current law or passing a new law). I concede a lack of imagination on my part. Homosexuality would also need to be included as part of sex-education, which certain conservative parents would obviously object to. Gay marriage doesn't necessarily have to affect conservatives (say a school that offers two different types of sex ed and a state that allows discrimination based on sexual orientation).
The next question is whether there is some kind of nebulous "religious liberty" that could justify a business discriminating against homosexual patrons or parents insisting on a separate sex-ed curriculum. The question all hinges on what exactly is meant by "religious liberty," which cannot be defined as a person being allowed in any circumstance to practice their religion.
To me, religious liberty cannot extend beyond one's own individual life or small group of like-minded supporters. If your actions require collective action with people who don't share your religion, then your religious beliefs don't get special protection (based on the establishment clause restricting laws based on religion). So, an ultra conservative Muslim who doesn't think women should show any part of their bodies but their faces and hands should not be allowed to discriminate against women who don't dress the way he wants them to. He has entered the public square, and thus has to play by the collective rules (laws) that cannot be based on religion (establishment clause), which only justify a business turning someone away who is a disturbance or doesn't pay their tab. The same justification would go for the sex-ed curriculum. Parents who object can homeschool or send their kids to a private school.
There are two ways I see of getting around this. The first is to change the establishment clause of the first amendment so that laws can be based on religion. Then, there would be no argument except whether including religion in policy would be wise, vs. now where it shouldn't legally be considered at all. The second option is to find a reason that a business owner should be able to discriminate based on their religious beliefs, but for a secular purpose (libertarian justifications probably would come in here).
But most people are not libertarians. The libertarian position is more consistent within itself (though it would allow a business to discriminate for any reason, whether that be if a patron is a race, gender, religion an owner doesn't like). Conservatives are not libertarians, and if they try to be, they become absurdly inconsistent. Many conservatives do believe that businesses should not be able to discriminate against a person for race or religion, whether in hiring or providing a service. They just make a special case because of a particular prejudice against homosexuals and try to cloak it in religious liberty, which, as I have shown, is no justification for discrimination against patrons one doesn't agree with. Mormons who believed African Americans were cursed by God could use their religion to justify discrimination and then claim "religious liberty," which most conservatives wouldn't accept.
So, to summarize my two arguments. The first is that religious liberty cannot be a justification for action when one engages in the public sphere. Religious people can make their own rules WITHIN their communities (as long as those rules don't include actions like child sacrifice), but if they want to do business with the outer community, their religion can't be a basis for their policies. The second argument is that conservatives who use the "religious liberty" argument are being inconsistent and opportunistic and should remedy that inconsistency by opposing laws that allow businesses to discriminate against patrons for being gay.
On a side note, I want to offer a quick argument in favor of gay marriage.
1. The first amendment establishment clause prohibits laws that's sole justification is some religion.
2. Laws prohibiting gay marriage derive their sole justification from some religion.
3. Therefore, the first amendment establishment clause prohibits laws prohibiting gay marriage.
What say you?
