They say that history is written by the victors. In the case of same-sex marriage legislation in Australia, it seems that the victors seek to write the future as well. Not content with the passage of SSM into law, advocates on both sides of the political aisle voted down a number of amendments that sought to protect the rights of dissenters from the new orthodoxy. For many of them, mere change of the marriage act was insufficient; complete public conformity now has to be enforced, underwritten by the imprimatur of the state. To be sure, some politicians who voted for Senator Dean Smith’s marriage bill unchanged claimed several substantive arguments in their defence. However, I cannot escape the feeling that for many parliamentary supporters of SSM, a desire for total victory was the primary driving force. That, and a sense of urgency induced by the approaching festive season, ensured that most of the proposed amendments received little more than cursory consideration.
As a consequence, only the most narrow of exemptions — touching directly on ministers of religion or religious institutions — remain in the bill. As for those who do not benefit from the protected sanctions of a recognized denomination, they may well find it difficult — perhaps exceedingly so — to preserve the integrity of their convictions in the face of demands to acquiesce. Photographers who decline to capture a same-sex wedding on film; a civil celebrant who does not wish to preside over a wedding ceremony centred around a same-sex couple; or a parent who does not want to expose her child to sex education that promotes a conception of marriage that contradicts her beliefs: in each case (and unless future amendments are accepted), the conscientious objector in question will have little recourse if they wish to retain the purity of their convictions. Since most opponents of SSM — or, to put it more positively, supporters of traditional marriage — are likely to oppose the change on religious grounds, any confrontation between the new regime and lingering dissent will raise burning questions concerning the legitimate scope of religious liberty in a secular society. If recent flashpoints in other countries are anything to go by, they’re likely to be rancorous affairs — deepening further the fissures that already exist between religious and secular, conservative and progressive.
Of course, for many advocates of SSM, both here and overseas, stringent limitations on a person’s ability to publicly express his or her (religious) convictions in this area is only just: true equality does not exist if even a few, lonely holdouts are permitted to maintain so-called “bigoted” attitudes beyond the citadels of their minds. This is certainly the case where commercial wedding vendors — specifically, those that directly contribute to the celebratory nature of a same-sex wedding — are concerned. Whether some Australian wedding operators may decline to provide services to same-sex nuptials remains to be seen; SSM was only legislated a month ago, and the first such ceremonies won’t be taking place until some time next month. However, the issue has been playing out in various locales across the United States, pitting religious conservatives against same-sex couples and their allies in state bureaucracies. As in so many things, US developments in this area could well be a harbinger of things to come here.
At any rate, whilst there may be a diversity of views on other questions, most SSM advocates (and even some opponents) are convinced that refusal to lend one’s creative talents to a same-sex wedding is manifestly unfair. For many of them, the alleged obviousness of their position means that it needs no discursive or articulated foundation. Still, some supportive politicians and commentators have tried to buttress it by proffering a series arguments that purport to demonstrate the illegitimacy of public opposition to SSM within the commercial space — particularly where it is inspired or driven by religious belief.
Three such approaches have recently caught my eye. All of them bear directly upon the issue of conflicting beliefs within the context of commercial transactions, and could be said to have implications for religious expression, conscience and intellectual liberty. Given the limits of space (which I have no doubt already pressed), I shall concentrate on only the first of the three arguments I have in mind. I’ve had reason to touch on these issues before, but recent events in the United States — where a dispute between Jack Phillips, a religious cake-shop owner, and a same-sex couple has made its way to the Supreme Court — mean that they still possess sharp currency. Despite claims that unwilling wedding vendors are likely to be a minor matter (and therefore of little significance), I incline to the view that if a political right is legitimate, it hardly matters how many people might be robbed of it by an overweening state. Furthermore, I think it important to answer advocates who would seek to ensure universal submission to the reality of SSM, and to expose the shallowness of their arguments. A Sisyphean task, perhaps, but necessary nonetheless.
Race and Same-Sex Marriage: a False Analogy
Here, I want to examine a depressingly common justification for refusing to allow a dissenting wedding vendor to refrain from contributing materially and artistically to a same-sex wedding ceremony. I say “depressingly”, because the argument’s ubiquity is matched only by adherents’ rather thoughtless devotion to it. Some proponents of SSM have asserted that a wedding vendor who declines to provide his or her services to a same-sex ceremony is akin to commercial operators of a previous era placing signs in their front windows signalling their refusal to serve people of a certain “race”. If this sounds like an exaggeration — a caricature of an opponent’s point of view — then here is the ALP’s Penny Wong, staking out her position in response to the tabling of Liberal Senator James Paterson’s rival SSM bill:
“I thought we had gone past the point in this country where we had signs that said ‘We don’t serve Jews, we don’t serve blacks'”.
Senator Wong is hardly alone in thinking this way. During parliamentary debate on SSM and related amendments, Wong’s colleague, Linda Burney, asserted an equivalence between wedding vendors who decline to service a same-sex wedding, and racist business operators. And what about The Australian’s Peter Van Onselen, who lazily conflates the two actions? Their views simply reflect a great swathe of public opinion.
Unfortunately, the argument itself is deeply — indeed, corrosively — fallacious. To be sure, there are some superficial similarities between the examples cited by those above: in both activities, a kind of discrimination is taking place. But it should also be noted that not all such forms should automatically be construed as unfair or illegitimate. Discrimination takes place all the time in a myriad of settings, and it is even seen as virtuous in certain contexts. For example, we do not fault an employer when he “discriminates” between the relative abilities of two candidates vying for a position at his firm. Quite the opposite: he is doing what is required of someone looking to enhance the profit-making capacity of his business. As such, there are times when a discriminatory outlook is not only warranted, but encouraged.
Wong, Burney, Van Onselen and their ilk are operating with a deeply confused understanding of what counts as unjust discrimination, illegitimately eliding real, invidious instances of discrimination with those that are only apparent. Refusing to serve someone based on their “race”, and declining to lend one’s creative talents to a same-sex wedding, are dis-analogous in a number of crucial respects. At base, it is the difference between prejudicial treatment grounded in a person’s innate features or characteristics, and distinctions made based on a desire to avoid complicity in an event, ceremony or process with which one disagrees. As Senator Paterson — who is himself a supporter of SSM — has pithily said, “It’s not about the person, it’s about the event”.
It’s worth exploring these differences in a little more depth. On the one hand, commercial discrimination against someone based on race or ethnicity is rightly viewed as unfair, because it is grounded in (a) innate characteristics of an individual (as opposed to an event distinguishable from said individual); and (b) consequent considerations that are irrelevant to the transaction in question. The provision of housing cannot be withheld from, say, Indigenous folk, because no rational relationship obtains between (in this case) Aboriginality and accommodation, and no rational distinction exists between an Indigenous man and a white person. Such actions attack the person qua person, and serve simply to undermine their position as an equal member of society. Some academics have theorised that this is part of a wider system of racial domination, by which the dominant group seeks to reinforce the inferior status of the subordinate group. As a manifestation of that system, refusal to accommodate certain individuals on the basis of race targets certain intrinsic features which — once more — have no material connection to the goods and services they wish to access. That is why they are (justly) seen as bigoted or prejudicial.
On the other hand, there is a rational relationship between a wedding ceremony (in this case, a same-sex wedding ceremony) and the provision of wedding-related services. To provide such services just is to make a contribution to a same-sex couple’s nuptials. Here, the question of the shape and nature of the marriage in question becomes supremely relevant, at least for those who hold to a traditionalist view of marriage. This does not centre on a person’s sexual orientation (in the way that a bigoted hotelier’s refusal to serve African-Americans is intrinsically about one’s racial identity). Rather, and as Senator Paterson noted, the source of the vendor’s objection is the possible contribution to, and participation in, a particular event. Those wedding vendors who object to lending their services to a same-sex wedding do so, not because they refuse to serve LGBT people, nor because they wish to communicate a message of dominance to a supposedly subordinate group, but because they do not wish to participate in a ceremony that contravenes their conception of marriage.
Religiously conservative business owners who have declined to render their services to a same-sex wedding have made this very point when hauled before state judiciaries. The separate experiences Baronelle Stuztman, a florist, and Jack Phillips (noted above) are instructive. Having been subject to legal sanction for their dissenting behaviour, both Ms Stutzman and Mr Phillips have stated clearly their willingness to serve gay couples for a variety of occasions. In fact, Ms Stutzman was sued by a gay couple she had willingly and cheerfully served for approximately a decade before running afoul of Washington State’s anti-discrimination statutes. However, she and Mr Phillips draw the line at making a material, artistic contribution to a same-sex wedding. In doing so, they are holding precisely to the distinction between persons and events that I have outlined. I’ve already written about Ms Stutzman, but it’s worth recalling the following words, since they can be applied to the issue more broadly (the brief excerpt within the quote comes from Ryan T. Anderson’s Public Discourse piece on this topic):
“In the case of Ms. Stutzman, her decision ‘did not spring from any convictions about people who identify as LGBT’, and had nothing to do with making distinctions based on a person’s sexual orientation; rather, it was rooted in what she believes to be the true shape of marriage”.
What proponents of the countervailing argument fail to realize is that there is actually a logical distinction between the sexual orientation of a person, and one’s definition of the institution of marriage. One may, for example, hold to a neutral — even positive — position on same-sex erotic relationships, even as they remain convinced that marriage is fundamentally a dyadic union of sexual complements. A quick thought experiment might help to make this distinction clearer. Imagine, if you will, a same-sex marriage composed of, say, two heterosexual women. Unlikely? Yes, but it is entirely conceivable.* Conversely, one may also imagine an opposite-sex marriage, composed of a gay man and a lesbian woman. It is therefore possible to separate the shape and nature of the event from the sexual identities of the participants involved. Assuming a religiously conservative cake-maker (for example) is consistent in his or her convictions, he or she will oppose the first union, but happily participate in the second. What these hypothetical examples do is dramatize the crucial difference between orientation (a feature of the person) and the structure of a marital relationship (an institution external to that person). That is why Ms Stutzman and Mr Phillips could, without a whit of inconsistency, serve LGBT people in a variety of contexts, and yet refuse to lend their artistic talents to a same-sex wedding.
By contrast, there is simply no parallel in the case of a business operator refusing to serve a customer because of the colour of their skin. Unlike the person-event distinction that obtains in the case of a same-sex couple wanting to marry, it is impossible to imagine a black person without reference to his or her ethnicity. Discrimination concerning race is inescapably grounded in certain, innate features of an individual; racially supremacist behaviour cannot be divorced from the prejudicial beliefs which underpin it, and is reducible those attitudes in a way that opposition to SSM (at least in some forms) isn’t. A distinction between neutral or positive regard and differential treatment — similar to the possibility that exists between one’s attitude towards homosexual relationships and a wedding vendor’s refusal to contribute to a same-sex wedding — is impossible where race is involved. A local publican’s turning away, say, an Indigenous man from his pub is simply the product of racial animus. The one is an expression of the other, such that in the absence of a personal attitude or belief concerning racial differences, a public display of racially-tinged discrimination would not — perhaps could not — exist.
The distinctions I have tried to highlight here are subtle, to be sure. But they are no less significant for all that. Sometimes, a fine-grained analysis is necessary, if only to expose the hollowness of an argument masquerading as self-evident truth. I remain convinced that this must be prosecuted, in order to make the case that it’s still possible for reasonable people to disagree. Of course, I fear that however strong my position is (and some may think it very weak indeed), it is likely to fall on a multitude of deaf ears — ears which belong to people who are already convinced that a Baronelle Stutzman and a proud segregationist dwell on the same moral plane. Indeed, the ease with which some progressives conflate the two leaves me doubtful about the prospects of détente or rapprochement on this issue.
As commentators like Rod Dreher and Ross Douthat have observed, if the analogy examined here continues to gain acceptance, then dissenting photographers, bakers, etc. will likely suffer the same kind of ostracism that Jim Crow advocates (quite rightly) experience in the US. It will mean that those who dare to object to the new orthodoxy will likely see their views de-legitimised before they have been given a fair hearing. After all, would we be willing to sympathetically enter into the emotional and intellectual world of a person who thinks that African-Americans are inferior to whites, and that their economic and social subjection is simply part of the natural order of things? Would we be willing to sincerely consider their point of view with any degree of openness?
This phenomenon goes well beyond commercial wedding vendors. As Douthat notes, positions on SSM that were taken by left-leaning politicians just a few years ago are now condemned as the “purest atavism”. The experiences of unwilling wedding operators may therefore prove to be a barometer of things to come, both here and overseas: the alleged parallels I’ve examined are now frequently deployed at a more general level to tar all opponents of SSM, regardless of whether they are in a position to refuse participation in a same-sex wedding.** If the analogy between race and SSM does hold (socially, if not logically), then there’s no real reason to restrict its application to those operating in the commercial wedding sector. Needless to say, none of this bodes well for the future of religious and intellectual liberty.
* Legally speaking, I mean. This is not to say that a same-sex marriage is metaphysically possible.
** As an aside, I remember speaking with a colleague just after Ireland voted to legalize SSM in 2015. I distinctly recall him saying that in time, opposition to SSM (broadly conceived) will be viewed in the same way we now see racist beliefs. He himself is a supporter of SSM, and he didn’t sound overly concerned by such a possibility. In fact, he seemed to think that it represented the natural extension of our culture’s current journey of progress. I doubt very much that the opinion was either original or unique to him.