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10/22/2014

Just going to another vendor isn't always easy, isn't good basis for sound policy

by Jeremy Hooper

Every time another one of these deliberately propagandized situations involving a baker or florist or other public accommodation operator who wishes to discriminate against same-sex couples comes into light, people on both sides (but mainly on the anti-gay side) start asking why those couples can't simply move on to the next business. People ask why anyone would want to work with a vendor who doesn't wish to service them. "There are many pro-gay fish in the commercial sea," goes the gist of the thinking.

On the surface, I get that. I've been through a wedding myself, and I know that I would not have wanted to spend those intense planning months working with someone who did not "approve" of me and my intended. I suspect that most people feel this way, and that most gay couples will not patronize a business that is known to be hostile to gay rights, even if the law compels these businesses to fairly service LGBT people (which it inevitably will). Most of the time these situations will play out pretty easily, with an anti-gay vendor pretending to be too busy to take the work or the same-sex couple making a more informed choice from the get-go.

But that is not the proper outlook when it comes to policy. The burden cannot and should not be on the taxpaying citizen who did nothing other than falling in love while gay. If civil marriage for gay couples is legal, on equal state and federal footing with straight couples (which it inevitably will be, everywhere), then business owners who run for-profit public accommodations will have to accommodate. The public. That is the only logical course forward.

Which brings me back to the whole "why can't you just go somewhere else?" point. In some cases—a lot of cases, even—this might be a perfectly adequate suggestion. The gay couple might have just stumbled into a random bakery, one of the many in the town where they reside. If their only attachment to the business and its wares is geographical ease or pure coincidence, then they very well good leave the anti-gay business with only their mild embarrassment to show for their patronage, and then head over to the cool, awesome, right-side-of-history baker who will cater the whole wedding for free as a testament to her commitment to gay rights. Having gone through the wedding planning myself, I know that this is usually the more likely case (our wedding planner wouldn't accept more than a pittance because she was so excited to do a same-sex wedding).

But the law cannot presume this to be the case, and the law cannot use such a presumption in order to give a pass to discrimination. The law has to look at why nondiscrimination laws exist, who we count as citizens of this country, what the marriage policy says, and all of the other factors that go into what I would hope is still our commitment to a fair and free society.

The reality is that in some cases, simply going to another vendor is not that easy. Imagine growing up in a tiny town with one local baker. Your whole life you have eaten this baker's cake at every major event. When it comes to pastry, you hardly even know another taste. You've long known that when you start planning your own wedding, you will do just as your straight brother and straight sister did and immediately haul tail over to this, the one and only bakery in town, and start dreaming up the cake—this cake—that you've always wanted.

Now imagine being told no. This baker, who has literally known you since you were about the size of the cake topper, tells you that unlike your heterosexual siblings, he cannot and will not sell you an identical confection. Not because he's busy. Not because he doesn't have the skills to fulfill your request. Not because he's going on vacation. No, no—he won't serve you because your identically legal wedding features a duo with identical genitalia. If you want a cake, you have to drive the fifty miles to the closest, and in no way comparable, baker.

This is not a far-fetched scenario. If I still lived in the tiny Tennessee town of my birth at the time of my wedding (presuming Tennessee had marriage equality; which it will someday), I can think of several different vendors where I could have had this very run-in.

Or forget bakers. Think about a dress designer like Vera Wang. Now, let me first say that she's extremely pro-gay, so I use her name only because Vera Wang wedding dresses are probably the most well known. But for just the purpose of thought exercise, Imagine that she stated, as policy, that no lesbians were allowed to buy a dress from her. While almost impossible to pursue and nationalize (and let me repeat: Ms. Wang would never dream of pursuing it), the idea behind it would be no more ludicrous and no less discriminatory than the baker or florist or venue that denies gay couples precisely because they are gay. That dream dress, from this famous designer with a certain skills, would be off the table of consideration for any lesbian bride. And no, it's not always so easy to replicate this kind of dream. A million brides- and grooms-to-be would agree with me.

Look, I get why people like Andrew Sullivan say we should not "pick a fight" here by compelling anti-gay public accommodations to serve gay couples. I really do get it, and I really wish for the most peaceful resolution to all of these cases.

However, I also think (read: know) that this "just go elsewhere" notion is way too reductive of a view, and one that simply cannot sustain us as we move forward as one nation and one people. The idea that a citizen of this country should have to go fishing for a public accommodation willing to service their event is just untenable, when unpacked. This was true even before marriage equality's expansion, since nondiscrimination law doesn't really have to hinge on that aspect. But with marriage equality fully legal in a growing majority of our states and on a federal level, the idea that a citizen can be readily turned away simple because of his or her sexual orientation, with the person who discriminates being immune from penalty in a way dissimilar to every other choice to flout nondiscrimination law, is not a standard we can hold. Not, at least, if we wish to uphold the ideals I had always believed we hold dear in this great nation. And I sure hope we do.

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