Identity Versus Behavior: What’s the Legal Difference?
As the Supreme Court prepares to take up one of the persistent “I won’t bake a cake for ‘those people’” cases, a friend asked me to explain the difference between a merchant who refused to do business with a Neo-Nazi group and one who refused to serve gays or Jews.
It’s an important distinction, but not an immediately intuitive one.
Civil rights laws were initially a response to businesses that refused to serve African-Americans–many of the proprietors claimed that their religious beliefs prohibited “mixing” the races (much as those refusing service to LGBTQ folks today base that refusal on religious teachings). Those civil rights measures–later expanded to protect other groups– were based upon an important principle that undergirds our legal system.
Our system is based upon the premise that your right to be treated like everyone else depends upon your behavior, not your identity.
As a result of that important distinction, I can post a sign saying “No shirt, no shoes, no service.” I cannot post a sign saying “No blacks, no Jews.” I can “discriminate” between customers behaving properly, and those who are disruptive, are unwilling to pay, or are otherwise exhibiting behaviors that I believe are harmful to my ability to ply my trade.
I cannot discriminate based upon my customers’ race, religion, or–in states that have inclusive civil rights law–sexual orientation or gender identity.
The confusion between a merchant’s unwillingness to have her business associated with the KKK, for example, and unwillingness to serve LGBTQ customers is reminiscent of arguments raised when Indiana was (unsuccessfully) trying to add “four words and a comma”(sexual orientation, gender identity) to Indiana’s civil rights law, which still does not include protections for gays or transgender individuals.
During those arguments, opponents of the added protections asserted that “forcing” a business to serve gay customers would be indistinguishable from forcing a baker to make a cake with a swastika or forcing Muslim or Kosher butchers to sell pork.
That comparison, however, is fatally flawed.
If I go into a menswear shop and ask for a dress, am I being discriminated against when I’m informed the store doesn’t sell women’s clothes? Of course not.
Civil rights protections don’t require the baker who doesn’t bake swastika cakes, or the butcher who never sells pork to add those items to their inventory. Civil rights laws do keep the baker from refusing to sell the cakes he does make to “certain people.”
The kosher butcher doesn’t have to carry pork, but he can’t refuse to sell his kosher chickens and beef to Muslim or Christian customers, again, so long as those customers can pay and are abiding by the generally applicable rules of the shop.
The distinction may not be immediately obvious, but it’s important. The essence of civil rights is the principle that you can be denied service for your chosen behaviors, not for your identity.
I hope that helps…
- Colorado Court: Anti-Gay Bakery Broke the Law by Refusing Service
- Colorado Civil Rights Commission Rules Against Bakery In Appeal of Discrimination Charges
- Anti-Gay Colorado Baker Defends Position – Would Discriminate Against Pagans As Well
- Colorado: Anti-Gay Bakery Loses Discrimination Appeal
- Supreme Court To Hear Case About LGBTQ Non-Discrimination Laws
- DOJ Files SCOTUS Brief Defending LGBTQ Discrimination