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Is Jim Crow Back?

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Daniel McInerny - published on 02/21/14 - updated on 06/07/17

A new bill has just passed the Arizona state senate that many believe is deeply discriminatory against gays. Is it?

Imagine you’re the owner of a photography studio. You’re also a staunch Christian and firm opponent of "gay marriage." But one day a gay couple comes into your shop and wants to hire you to take pictures of their wedding. Wedding photography is part of the bread-and-butter of your business, but you believe that participating in this kind of wedding would constitute a betrayal of your Christian beliefs. And you certainly don’t feel easy about making money off the event. 

If you were the photographer, what would you do? 

Refuse to photograph the wedding, and you might incur the penalty that Elane Huguenin did when she refused to photograph a lesbian’s couple "commitment ceremony" in New Mexico in 2006 (New Mexico does not allow gay marriage or gay civil unions). Protest the penalty, and you might even find, as Ms. Huguenin did, your state Supreme Court ruling against you, arguing that a photography studio is a "public accommodation" that must serve clients on an absolutely impartial basis. One of the New Mexico justices wrote in his concurring opinion:

"At its heart, this case teaches that at some point in our lives all of us must compromise, if only a little, to accommodate the contrasting values of others. A multicultural, pluralistic society, one of our nation’s strengths, demands no less. The Huguenins are free to…pray to the God of their choice… But there is a price, one that we all have to pay somewhere in our civic life."

Describing our society as multicultural and pluralistic might have been suitable in the 1950s. At present the better description is that of a wilderness of warring tribes which band together under loose alliances. This situation is the result of deep social fragmentation, at bottom a moral and spiritual crisis to which the legal system is not immune.

In such an environment, rights in general, and particularly rights of conscience, will be increasingly and ever more stridently invoked. When people of whatever cultural tribe believe their very way of life is under threat, the customary reaction is to man the defenses.

So should the owner of a photography studio be able to refuse service to those representing a way of life anitthetical to his own? Would the legal protection of such refusal mean a revival of a Jim Crow era of discrimination?  

Let’s make a distinction. A photography studio is not a "public accommodation" in the same way a utility company is. One provides what we might call a luxury or non-essential service (wedding photography), while the other provides services more essential to life and essential activity in such a society. I do not accept the moral legitimacy of homosexual behavior and so-called gay marriage, but I don’t recommend refusing water and electricity to those who believe the opposite. Why not? Because they are my fellow human beings and my fellow citizens, and the common good at both those levels demands that everyone enjoy all that is essential to life and what society normally affords citizens for daily living.

Luxury items are obviosuly not essential to daily living, but even here there are distinctions. A restaurant owner may not choose to refuse service to a lesbian couple who comes in for dinner, but he may feel very differently if the couple asks him to host the rehearsal dinner before their wedding. Just as a photographer may not refuse to take a portrait of a man he knows to be a practicing homosexual, but balk at photographing the man and his partner’s wedding. There’s a moral difference between serving someone a meal or taking his photograph, and co-operating with the celebration of an event to which one is morally opposed.

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Religious Freedom
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