NEW YORK (RNS) I’m not supposed to like this idea.
It was put forward by a conservative Christian pastor who says that “Faithful American Christians are increasingly under attack across the country by the gay lobby.” And it’s a proposal for Christian-owned small businesses who don’t want to serve people like me: gay people, especially ones who are out, loud, and proud.
And yet, I’m for it.
The proposal comes from the Rev. C.J. Conner, author of "Jesus and the Culture Wars: Reclaiming the Lord's Prayer," and a Lutheran pastor in Dodge City, Kan. It is elegantly simple. In places where businesses can’t say “no gays allowed” -- places like Indiana, after last week’s remarkable backtrack by Gov. Mike Pence -- Conner suggests that florists, photographers, bakers, and others who might be called upon to be part of a same-sex wedding state clearly that they will only provide their services in connection with specific houses of worship. In his case, “Bible-believing churches,” as he defines them.
Those houses of worship, in turn, are protected by the Constitution. They can turn away gays, Jews, interracial couples, interfaith couples -- basically, whoever they want -- because unlike flower shops, churches are religious institutions, and are covered by the First Amendment.
Why do I like this idea?
First, Conner’s workaround (I’d call it a compromise, actually) enables small, expressive businesses, which are often run by a single individual, to maintain their religious scruples in a way that doesn’t smack of discrimination. It’s far better than the overly broad “religious freedom” laws still under consideration in a dozen states. And it’s better than the chaos we have now.
Second, despite Conner’s prediction that “the gay lobby expands its agenda to target Christians and houses of worship directly,” I don’t know a single LGBT activist who wants to compel a church, synagogue, mosque or other religious institution to solemnize anything at all. The battle we are fighting is about businesses in the public square, not churches.
Most importantly, that battle is about public values, not private conscience. Remember, businesses that say “no gays allowed” cause two kinds of harm. First, they deny their services to people who would like to make use of them. The second, and far more grievous harm, is the public statement they are making: that this kind of discrimination is publicly acceptable, that I can look you in the eye and say “No, I won’t serve your kind.”
Conner’s proposal solves the second problem. The florists aren’t saying “no gays allowed” -- they’re saying “only conservative Christian weddings affiliated with (fill in the name of the church here) allowed.” That’s fine. No group is being singled out, no discriminatory message is being sent, and, indeed, the photographer is probably losing some business by taking this principled stand. Which I fully respect.
It’s also a lot better than saying “no weddings of any kind,” which many businesses have recently done in response to the controversy. No one wants individual artists to have to go out of business. We in the LGBT community just don’t want them to be able to discriminate against us, to continue to marginalize us, to stigmatize us, and to drive our youngest, most vulnerable members to take their own lives in staggering numbers.
Now, I do have a few important reservations.
First, Conner’s workaround should only be available to the kinds of businesses we’ve been discussing: small, expressive arts shops. It should not be available to large corporations or hospitals, and should not cover employment benefits, adoption or family services, or any kind of medical treatment, including pharmacies.
It’s one thing for wedding-related services to limit themselves to weddings performed in a certain place and in a certain way. It’s quite another for one’s marital status to be used as a filter in all walks of life. The physician who refuses to treat the child of a same-sex couple is violating not only the Hippocratic oath, but also the rules of fair play. That is unacceptable.
Second, the workaround must be sincere. If service providers are found to be selectively enforcing their policy, they should be held liable, just like any other fraudulent business. The policy must not be a smokescreen for the same old discrimination. If a business is promising exclusivity, they must deliver it.
Finally, this doesn’t mean the LGBT community is going away. On the contrary, Conner’s policy returns the moral battle to where it should be: within communities of faith.
Public accommodations laws are no place to have a theological discussion. Rather, as we’ve seen across the country in conservative Christian communities, sexual diversity is a profound moral issue. It belongs in church. Christians shouldn’t be debating constitutional law; they should be reflecting on their faith, and I'd recommend they listen to the voices of faithful LGBT Christians like Justin Lee, Matthew Vines, Jeff Chu, and Tonyia Rawls, and allies like C.S. Pearce and Richard Cizik. That is the real conversation we should be having, and it should happen church by church, pastor by pastor, without the shrill voices of politics.
So, that’s why I like this law, despite its unfriendly source. The bakers can obey their consciences, the big players obey the law, and the public square remains free of discrimination. Best of all, the debate can refocus on the issues that really matter, rather than the ones that raise money for advocacy groups.
Of course, Conner doesn’t have to persuade me -- it’s his allies who are pushing this fight, groups like Alliance Defending Freedom, Family Research Council, and the Becket Fund. So, Rev. Conner, you’ve got me on board. Now what about those who claim to speak in your name?
(Jay Michaelson is a columnist for The Daily Beast and author of the 2013 report “Redefining Religious Liberty: The Covert Campaign Against Civil Rights.”)
KRE/AMB END MICHAELSON