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02/27/2015

The 'why can't they take their business elsewhere?' line: Not only offensive but legally meaningless

by Jeremy Hooper

Whenever these stories about the florists or bakers or photographers who want to deny services to same-sex couples come to light, there is an inevitable chorus that will ask, some from the pro-LGBT perspective but most from the anti-LGBT perspective, why the injured parties couldn't have just taken their business elsewhere. On a couple of different occasions, I've discussed the reasons why that is an untenable standard. But there's another facet to the conversation as well.

The fact is, many couples surely do take there business elsewhere. It's unwise to think that the only situations we hear about are the ones that reach national prominence. The truth is that same-sex couples are seeking wedding services on an hourly basis, and throughout the country. There are surely daily infractions that go by without a peep. It's not like these kinds of situations automatically become news. In order for them to become news, the couple has to first be offended, and then they have to make a choice—a time consuming, potentially costly, high profile choice—to take action against the vendor. In many cases, this does not happen.

I think this is important to remember, since conservatives love to use the "why can't they just take their business elsewhere?" as a distraction. Never let them. When we debate these situations, the focus is not really on what one couple chose to do, but is instead on the laws that allow them recourse. The reason same-sex couples are free to file discrimination suits, if they so choose, is because we are a nation that has been moving toward greater nondiscrimination processions for LGBT people, both on a state-by-state and federal level. And those laws, and why they matter, is the debate. The debate is not about how you think John and Mark should have proceeded when Betty's Jesus Cakes told them no; the debate is about if John and Mark should have legal options to handle discrimination, if they so choose.

When I got (legally) married six years ago, I didn't come across an anti-gay vendor. Or if I did, they simply hid their feelings behind pretense about being overbooked or out of town or something. I certainly didn't run in to anyone who was less than willing to consider my husband and me as anything other than equal customers. If I had, I'm not sure if I would have pursued a lawsuit. As a passionate activist on these issues, perhaps I would've. But as someone who values his private life and who really isn't all that political for the majority of my life, I'm not sure if I would have dampened the joy that was planning our wedding with a lawsuit, no matter how easily we would've won it. I'm not the most litigious person. But the point, in terms of nondiscrimination law and the cases that sometimes reach a high profile level, is that my husband and I *could've* filed a theoretical lawsuit if our baker or florist or other vendor turned away our business because of our sexual orientations/sex. It doesn't matter if your or I or anyone else thinks a lawsuit is frivolous or if we think the invested parties should occupy their time in other ways. For the purposes of this and related debates, what matters is the law.

The cold, ugly, under discussed truth is that most of the anti-LGBT conservatives who raise up these license-to-discriminate cases do so because the truly do not believe LGBT people should be protected under nondiscrimination law—anywhere, at any time, in any case. Or at the very least, they believe that protections that extend to religious people (which all credible LGBT activists support) should get some sort of super premium that allows them to trump LGBT protections. So when they glibly, dismissively, and duplicitously ask why we don't just move on down the road to the next florist or bakery, they mean it. Because they think that our protections, unlike their protections, are just a suggestion that they can or cannot follow. They are wrong. And they are wrong because of the law, not because a same-sex couple, an attorney general, or a judge chose to accurately implement it.

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