Gay Rights and the Race Analogy

by John Corvino,

Now that same-sex couples can marry in all 50 states, controversies are erupting over clerks who don’t want to issue same-sex marriage licenses, bakers who don’t want to bake cakes for same-sex weddings, photographers who don’t want to take our pictures and so on.

“It’s simple,” one friend opined, echoing a common refrain. “If you own a business that’s open to the public, then you must serve all comers.”

I very much hope he’s wrong.

This friend is a psychotherapist in private practice, and so I asked whether he should be allowed to decline a client whom he deemed not a good fit. He acknowledged that he might “recommend” a different therapist but never stated whether he should be allowed to refuse outright. Instead, he pulled out a familiar trump card: “Well, should a racist restaurant owner be allowed to refuse service to blacks?”

This response is too quick. Although the race analogy can be illuminating, as I’ve argued before, it can also be a lazy way of avoiding hard questions.

Consider a very different case: Suppose I’m a photographer who can’t stand children. You want me to take pictures at your child’s birthday party — there will be games and clowns and other things I find annoying — and I decline.

No serious person would suggest that the law ought to penalize me for age discrimination — but why? Before answering, consider two more cases:

Case 2: I’m a photographer who disapproves of homosexuality; the mere thought makes me uncomfortable. You try to hire me for your lesbian wedding; I decline.

Case 3: I’m a photographer who disapproves of miscegenation; the mere thought makes me uncomfortable. You try to hire me for your interracial wedding; I decline.

Now, is the lesbian wedding case more like the birthday party case or the interracial wedding case?

One might argue that the lesbian wedding case is more like the interracial wedding case because both involve moral disapproval, as opposed to mere dislike. But if anything, that weakens the case for legal interference: We generally weigh conscience more heavily than mere discomfort when assessing people’s liberty interests. Besides, those wishing to punish me in that case surely wouldn’t be appeased if I had said: “Look, I have no moral problem with homosexuality; I just think it’s weird and icky. Like clowns.”

Nor can one assimilate the lesbian wedding case to the interracial wedding case, and distinguish it from the birthday party case, by a “born this way” argument. Put aside debates about the etiology of sexual orientation or the social constructedness of race. Clearly, age is entirely a function of when one was born, and thus outside voluntary control. In other words, the birthday party case hinges on an involuntary characteristic just as much as the interracial wedding case does. So that won’t help.

Maybe the difference is that the wedding cases both touch deeply on issues of identity in ways that the birthday party case does not. That answer seems partly right. But surely children’s “childness” is a significant part of their identity, too, just like my middle-agedness.

The best hope for grouping the cases in a way that makes sense of our intuitions is based on historical and political factors: Children have not been systematically, unjustly excluded from important institutions and services in the way that, say, racial minorities have. (We have good reasons for keeping children out of bars, not to mention marriage.) My refusal to take their photographs does not form part of a larger pattern of disenfranchisement — and also does not carry with it the same sting of exclusion.

In those respects, the lesbian couple — who may not even have been free to marry in their home state until very recently — is more similar to the interracial couple than to the children.

But “more similar to” does not mean “the same as.” When civil rights laws were passed, discrimination against blacks was pervasive, state-sponsored and socially intractable. Pervasive, meaning that there weren’t scores of other photographers clamoring for their business. State-sponsored, meaning that segregation was not merely permitted but in fact legally enforced, even in basic public accommodations and services. Socially intractable, meaning that without higher-level legal intervention, the situation was unlikely to improve. To treat the lesbian couple’s situation as identical — and thus as obviously deserving of the same legal remedy — is to minimize our racist past and exaggerate L.G.B.T.-rights opponents’ current strength.

The present debate is too often dominated by hasty generalizations and false inferences, on both sides. The left slides too easily from “similar” to “the same.” The right correctly counters “No, not the same,” but then jumps to the false conclusion “Not at all similar.” Where both sides go wrong is in treating analogies as if they were identities. If we want to apply the lessons of history to the current controversy — as we should — we need to take seriously both the similarities and the differences.

We also need to pay attention to various distinctions. There’s a big difference between private business owners and public employees, such as city clerks’ issuing marriage licenses (including the Kentucky clerk whose case has been in the news this past week). There are differences between various kinds of providers: an independent artistic photographer, for example, versus a mall portrait-studio employee whose job is to line people up and press a button (“Say cheese!”). And there’s a difference between being denied a portrait or a cake and being denied, say, an apartment or a job.

There are differences, too, between various communities. Currently, the jurisdictions most likely to prohibit sexual-orientation discrimination are those where such laws seem least needed; cities where rainbow banners far outnumber Confederate flags. But what about places where being openly gay is literally unsafe? There it’s much harder to rely on market forces and social pressure for ensuring equality.

How pervasive or intractable does discrimination need to be before we should invoke the long arm of the law to solve it? I don’t have a simple formula for answering that question. I’m wary of those who do.

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