In my last diary I wrote that the crux of legitimate disagreement with respect to private discrimination, be it against LGBT or any other category of people, is that those who would seek or claim a "right" to discriminate may not regard private discrimination as being harmful to an individual being discriminated against. Whether the justification or permission for such discrimination is grounded in property rights or "religious beliefs," or both, what must also be included is that either (1) the discriminatory treatment is not harmful at all to the person subjected to such treatment, or (2) the harm inflicted upon the person who wishes to discriminate by virtue of his not being permitted to do so (or his being compelled to act in a non-discriminatory fashion) is greater than and therefore outweighs any harm suffered by the "target" or "victim" of discrimination.
Let's take this hypothetical again:
Nathan Lane and RuPaul walk into Ted Nugent's Bridal Boutique and Firearms Emporium. They walk past the Uzis and Glock 9's over to the cake section, where they pick out a tastefully-decorated vanilla-frosted orange marzipan cake with Crème de Menthe and lime zest. They walk up to the register and Nathan says to Ted, "Yes, hello, I'd like to purchase the vanilla-frosted orange marzipan cake with Crème de Menthe and lime zest that's sitting on the shelf over there." Ted says, "I'm sorry; your sexual orientation and associated lifestyle offends me, because of my sincerely-held religious belief that it is sinful and wrong. Moreover, I believe that you intend to purchase the vanilla-frosted orange marzipan cake with Crème de Menthe and lime zest for use in connection with a same-sex marriage ceremony and/or celebration, wheareas such events are also offensive to me and inconsistent with my sincerely-held religious beliefs. Therefore, I will not sell you the vanilla-frosted orange marzipan cake with Crème de Menthe and lime zest, and I ask that you please leave my Bridal Boutique and Firearms Emporium at this time and not return at any time in the future, as your presence on these premises is offensive to, and incompatible with, my sincerely-held religious beliefs. Thank you, and have a pleasant day."
Last time, we discussed whether Nathan and Ru had been mistreated by Ted and suffered any harm as a result of this treatment. Today let's alter the hypothetical a bit; let's say that Ted would like to deny Nathan and Ru the vanilla-frosted orange marzipan cake with Crème de Menthe and lime zest, in deference to his sincerely-held religious beliefs, but there is a law in Ted's state saying that he can't do that. Well, not that he
can't do that, but that he runs the risk of being sued by Nathan and Ru for a civil-rights violation if he does. So, rather than take that risk, Ted simply replies, "That will be $39.95, please." Nathan hands over $40 in cash; Ted hands him a nickel in change, boxes up the vanilla-frosted orange marzipan cake with Crème de Menthe and lime zest, hands the box to Ru, and Nathan and Ru leave Ted's Bridal Boutique and Firearms Emporium together.
Has Ted suffered any actual harm in this scenario? Follow me below the vanilla-frosted orange marzipan symbol for further discussion.
It's important to understand that not all businesses are alike, even though all businesses and business transactions are contractual in nature. What we are talking about here are public accommodations like retail shops, restaurants and hotels, whose doors are open to the general public, that don't require an appointment or other sort of special individualized permission to enter the premises during business hours. These businesses are not professional contractors, viz., they're not soliciting offers for commercial contracts, like a doctor's office or an ad agency. Their very existence constitutes an offer, viz., a free, open, universal, unconditional offer to the general public of goods and services for sale at retail. Not all businesses make the same kind of free, open, general, universal, unconditional offer. Retail shops like Ted's Bridal Boutique and Firearms Emporium do; they are not soliciting offers to buy, they're making an open, unconditional, universal offer to sell.
By entering that particular establishment and selecting goods and services, which presupposes an ability and a willingness to pay for them, the customer accepts that offer, and an implied contract is formed (offer, acceptance and consideration). The premise behind civil rights in the private-business context is that everyone has the right to accept that same open, unconditional, universal offer on the same terms as everyone else. In the original hypothetical, the "harm" to Nathan and Ru was Ted's breach of that implied contract, with the result that Nathan and Ru inter alia have to expend additional time, effort and financial resources to find a comparable offer to contract for comparable goods. Ted's breach of contract (or, if you prefer, withdrawal of the offer) may have been justifiable and permissible, but Nathan and Ru were still objectively and materially harmed by it.
In the revised hypothetical, Ted's breach/withdrawal is not justifiable or permissible, or at least he understands that it is not, so he has honored the terms of the contract and fulfilled his legal duties thereunder. Nathan and Ru also fulfilled their contractual duties, accepted the offer, provided adequate consideration, and got their vanilla-frosted orange marzipan cake with Crème de Menthe and lime zest ... but now Ted is the one who has suffered harm.
But how, exactly?
We have to accept the sincerity of Ted's religious beliefs; both the beliefs themselves and the fact that Ted sincerely holds those beliefs. We can't start requiring people to verify or falsify their beliefs or the degree of sincerity with which they hold them. As such we have to accept as a given that Ted has been compelled, whether by law or by his own conscience, to do something which his religious beliefs tell him he may not, should not, or must not do.
If it is simply said that the "harm" Ted has suffered is that he had to "go against" his "religious beliefs," what does "go against" actually mean? Does it matter whether the "religious belief" in question is that "Homosexuality Is a Sin," that "Gay Marriage Is Wrong," or that "Thou Shalt Not Sell a Vanilla-Frosted Orange Marzipan Cake with Crème de Menthe and Lime Zest to a Gay Person, to a Gay Couple, or to Anyone Who Might Serve Such Cake At or in Connection With a Gay Wedding"? Again, this doesn't help answer the question about the nature of the harm, because the definition or nature of the "belief" itself is beside the point. Whether a person is compelled to act or forbidden from acting by his religious "beliefs" is entirely subjective anyway; meaning, it's entirely up to him.
The question of whether Ted has been harmed, and if so what is the nature of that harm, is also not dependent on whether Ted was, or felt, compelled by law to sell the vanilla-frosted orange marzipan cake with Crème de Menthe and lime zest to Nathan and Ru, or whether he did so for other reasons. Even if we agree that he would not have done so but for the risk of civil litigation, the question still remains as to whether and how the sale actually harmed Ted.
Ted certainly has not suffered any financial or material harm as a result of the sale itself. The cake was freely, openly and unconditionally offered to anyone who might come in to buy it, and Nathan and Ru paid the full retail price for it. Everyone honored and fulfilled the terms of the retail contract, as discussed above. Might Ted suffer harm as a result of, e.g., someone seeing Nathan and Ru walk out with the cake and saying to himself, "I ain't doin' no bidness with no dude what sellin' cakes to no queers," and instead of purchasing his next AR-15 from Ted he goes to Sarah Palin's Gun Shop and Taxidermy in the next town over? Maybe, but (1) it would be impossible to prove, (2) Ted doesn't have any rights to a particular sale until someone comes in and accepts his offer, so this hypothetical customer (who may not exist at all) is not breaching any contract with Ted and Nathan/Ru are not interfering with an existing contract or any existing contractual rights that Ted has; (3) businesses like Ted's take this sort of risk all the time, including but not limited to (4) the risk that the same thing could happen if he refuses to sell to Nathan and Ru. So, whatever harm Ted has suffered is not contractual in nature, and thus not material in the legal sense of the word.
I and others have written ad nauseam about the fact that neither the sale itself nor any anti-discrimination law, real or imagined, need have any effect whatsoever on Ted's actual religious beliefs. Beliefs are thoughts, not actions or practices; there is no objective reason why selling a vanilla-frosted orange marzipan cake with Crème de Menthe and lime zest to a gay person or a gay couple would compel or require Ted to stop believing that homosexuality is a sin, to stop believing that gay marriage is wrong, or even to stop believing that the sale at retail of a vanilla-frosted orange marzipan cake with Crème de Menthe and lime zest to a gay person or a gay couple is forbidden by his religion. So Ted's beliefs are still intact, whether he has been or feels he has been compelled to "go against" them or not. (And again, whether or not withdrawing a retail offer or breaching a commercial contract constitutes "religious practice" or the "exercise" of "religious beliefs" is a separate and unrelated question.)
Does the sale, or Ted's agreeing to make the sale, undermine the "belief" itself, in the abstract? Meaning, does the fact that Ted made the sale (regardless of why) have the potential to make Ted re-examine, re-evaluate, and eventually change, disregard or dismiss his religious "beliefs" about homosexuality, gay people, gay marriage, and so forth? Maybe, but like the existence and nature of the belief itself in the first instance, that's entirely up to Ted. If that does happen, it's attributable to Ted's conscience, and as such it would be hard to consider it "harm" inflicted upon Ted by Nathan and Ru, let alone by any anti-discrimination law.
Does the sale, or Ted's agreeing to make the sale, undermine the "belief" itself in the even-more-abstract, at the societal level? Meaning, do such sales generally, irrespective of whether they are made in deference to civil anti-discrimination statutes, have the potential to cause anyone and everyone who might have religious "beliefs" about homosexuality to re-examine, re-evaluate, and eventually change, disregard or dismiss those beliefs? Again, maybe, but again, as a matter of individual conscience. Ted certainly doesn't have any "right" to ensure that anyone else, let alone all of society, believes as he does, thus this cannot constitute harm inflicted upon Ted by Nathan and Ru, nor by any civil rights law.
So what's left? How else might Ted have been harmed by this retail transaction?
Of course, the transaction probably makes Ted feel bad. Ted believes, i.e. he thinks and feels, that he has done something wrong, that he has "violated" or "gone against" his "religious beliefs" or his "religious conscience." He feels uncomfortable with the fact that gay men bought his vanilla-frosted orange marzipan cake with Crème de Menthe and lime zest, that gay men will be eating his vanilla-frosted orange marzipan cake with Crème de Menthe and lime zest, and that gay men may be serving his vanilla-frosted orange marzipan cake with Crème de Menthe and lime zest at a gay wedding. He believes, thinks and feels that these facts, and his own actions in not withdrawing the offer and not breaching the retail contract, constitute an endorsement of homosexuality, which he believes is a sin, and/or of same-sex marriage, which he believes is wrong. He feels like he made the vanilla-frosted orange marzipan cake with Crème de Menthe and lime zest for them, which he believes he never would have done had he known that gay men would buy it, eat it, or serve it at a gay wedding.
Do these thoughts and feelings constitute actual harm?
If they do, does this harm outweigh the actual harm inflicted upon Nathan and Ru in the original hypothetical?
None of this is to say, imply or insinuate that Ted has not suffered actual harm in the revised hypothetical. The purpose here is to identify, describe and articulate the precise nature of that harm, before assessing its magnitude.
So, discuss.
