Reasonable Discrimination

When values clash, we frequently have to choose which is better and favor that value. Favoritism is discrimination, but when you favor something that’s good (like racial equality) over something bad (like racism) it’s okay.

We can usually distinguish between good and bad discrimination.

• Separate restroom facilities for different sexes is acceptable discrimination.

• Separate restroom facilities for different races is harmful discrimination.

• Telling people they can’t drive until they turn 15 is good discrimination because most people aren’t responsible enough to drive before that age. (Many still aren’t at that age, but necessity justifies the risk.)

• If we told people they can’t drive when they reach the age of 80 that would be bad discrimination because many elderly people are still safe drivers well beyond 80 and most who can’t drive safely have enough sense to stop on their own. (We could do more to identify risky elderly drivers without banning them all.)

You get the picture. Sometimes it makes sense for society to discriminate between groups of people, but the justification needs to be strong. Unreasonable discrimination is oppressive, sometimes abusive. So, when values clash it’s usually better to find a reasonable compromise than to say one is wrong and treat it with oppressive laws and attitudes.

We all discriminate (whether or not we’re willing to admit it) in the area of values and morality. Everyone naturally favors people that have similar values to themselves. Sometimes we withdraw from people and refuse to associate with them if their values clash with our own seriously enough. This type of discrimination can be good, bad, or neutral depending on how we go about it. Regardless, we have a fundamental right to discriminate based on our personal values in our private choices such as who to associate with, live with, support, share personal experiences with, etc. When these choices spill into the public arena they must be weighed against the rights of others.

Morality discrimination has been getting headlines and arousing emotions in America for many years now, mostly related to homosexuality and gender identity. The majority of Americans seem to think we should protect homosexuals and transgender people from discrimination, but a very large portion of our population believes that sometimes discrimination in these areas is appropriate.

Many people believe everyone should use restroom facilities that match their biological gender regardless of what they identify as. Others believe this is unreasonable discrimination against transgender people. I can accept the idea that some people aren’t comfortable with their biological sex. I can see how a biological man who identifies as a woman might feel extremely uncomfortable using public male toilet facilities. But if we give him the freedom to use female public toilets there are a lot of women who feel extremely uncomfortable with that prospect. It violates their morality values and privacy rights.

So, do we discriminate in favor of people who want public toilets to be segregated by biological gender, or do we favor transgender people who prefer to use toilets for the sex they identify with? Or do we provide private toilets in all public places to mitigate the issue? It seems our society is choosing to favor transgenders.

The current trend in protecting homosexuals from discrimination is to deny the rights of business owners to refuse service. If a big business like a national department store chain had a policy of not serving homosexuals it would seem quite unreasonable. The business interaction is impersonal, and the impact to homosexuals if they tried to enforce such a ban would be serious. Large numbers of people would either have to defy the ban or be significantly inconvenienced. Some may even experience humiliation and harassment from the policy.

At the other end of the spectrum consider a small business like a local band that performs at wedding receptions. This service is more intimate and personal. The band joins in the celebration, artistically expressing emotion through their music. If the band members believe that homosexuality is immoral it’s unreasonable to force them to perform for same-sex weddings. It may frustrate a same-sex couple searching for a band to perform at their wedding reception when a group turns them down, but they’d probably rather have musicians who can celebrate with them. In this case, I think the morality rights of the band outweigh the convenience rights of the same-sex couple.

The big question is, how can courts distinguish when morality-based discrimination is reasonable? They need some guidelines. Tests for “reasonableness” exist for other areas of law, such as when mandatory drug testing is justified. I see a few potential tests for reasonableness in this area of values discrimination.

• Direct suffering. Does the action under moral scrutiny cause obvious direct suffering to others? If a lawyer refused to provide parents of young children divorce services considering such action immoral, they might be justified because such divorces cause suffering to children.

• Religious context. If the service being provided has a fundamental religious element such discrimination may be justified. The government shouldn’t force a Jewish owned party business specializing in Bar Mitzvahs to host Christmas parties too.

• Convenience. How difficult is it for a person to obtain needed services? A professional clown who frequently entertains guests at children’s birthday parties refuses to serve a college fraternity party because she believes the drinking, lewd dancing, and vulgar language common at such parties are immoral. If she refers them to another clown business nearby, their inconvenience is minimal so she could be allowed this moral discrimination.

• Courtesy. Was the discriminating individual polite or rude? In the previous case, the clown could be held liable for unlawful discrimination if she became belligerent, yelling rude insults at her rejected customers. Neither party should react with behavior that designed to harass, shame, or intimidate. We should strive to be respectful.

• Intimacy. (personal interaction) If a service requires close contact with people doing something an individual considers immoral, their right to refuse service grows stronger. Wedding photographers work closely with couples for extended periods of time. If a photographer considers same-sex marriage immoral, the level of intimacy in providing this service may justify refusal.

• Need. How important is the service being sought? Denying someone fundamental products or services such as food, clothing, shelter, etc., is much more serious than refusing unnecessary wants. If an artist refused to paint a mural on a nudist colony fence because he believed their lifestyle was immoral, he’s not denying them an essential need so his moral discrimination could be reasonable. If the local grocery store refused to sell them food that would not be reasonable. (The local grocery can enforce a dress code in their store though.)

• Perceived Support. People should not be forced to provide services that would be perceived as advocating or supporting something they believe to be immoral. A farmer with a large barn next to a busy highway may rent out his barn wall to businesses for advertisement. These ads could easily be perceived as a personal endorsement so he’d be justified in refusing anything he’s morally opposed to, from tobacco ads to abortion clinics to strip clubs.

• Respect. Free speech allows us to publicly state what we believe, but people shouldn’t live in fear of ridicule because they mistakenly sought services at a business that disapproves of their lifestyle. If two men ordered wedding invitations from a business and employees secretly photographed them and posted their picture on Facebook with disparaging comments about their immoral relationship, that’s a disrespectful invasion of their privacy. It’s unreasonable moral discrimination that even free speech may not justify.

• Targeting. People should not go to a business specifically to challenge their religious or moral beliefs. If the fraternity mentioned in the example above sought the clown’s services specifically because they knew she wouldn’t approve of their party, that’s harassment and they are guilty of unreasonable discrimination against her.

• Consistency. Moral standards should apply uniformly. If a caterer refuses to serve a wedding reception between two dark-skinned men claiming reasonable moral discrimination, then caters a wedding reception for two white women, she’s not being consistent. She could be using morality to cover up racial or sexist discrimination.

With these guidelines courts can find a reasonable balance when values clash. Let’s consider homosexuality and some of the cases that have made big headlines.

• Direct Suffering. Homosexuality between consenting adults causes no direct suffering to others. People may argue that social acceptance of homosexuality causes suffering through God’s judgment on society, spreading diseases, encouraging other forms of sexual immorality that have victims, etc. These are all disputable indirect consequences that are mainly personal opinions. They may justify personal discrimination with minimal impact on other people, but not public discrimination by the government or private businesses if the discrimination significantly inconveniences others.

• Religious context. Many value clashes making news lately involve same-sex marriage. Moral values related to marriage are hugely connected to religion. If someone has an issue with same-sex marriage it makes sense to accommodate their religious values as much as we reasonably can.

• Convenience. Recent cases where a florist or cake decorator lost their business and were slapped with punitive penalties for refusing to service same-sex weddings disturb me deeply. The same-sex couples had convenient options to get their flowers or cakes from another business but chose to sue instead. The courts favored homosexual rights over religious freedom with no consideration to convenience or balance between these clashing values. It seems a blatant injustice to me. The case of a clerk who refused to sign marriage licenses did cause a significant inconvenience to others. They could have gotten marriage licenses someplace else, but they shouldn’t have to. (The clerk shouldn’t have to give up her job either. Instead of criminalizing the clerk, the situation could have been more easily resolved with reasonable accommodations satisfying the clerk’s religious convictions and future applicants for marriage licenses.)

• Courtesy. In all recent cases that I’m aware of, individuals discriminating against homosexuals were as polite as they could be while holding true to their moral convictions. Denying service itself is not polite, but if someone feels they must deny service they should do it as respectfully as possible, trying their best not to harass, shame, or intimidate.

• Intimacy. The cake decorator and florist may have a case for intimacy, depending on the level of service their customers requested. Simply asking artistic craftsmen to create a custom work is intimately personal. If they have to deliver their product to the reception and set it up interacting with the couples, that makes it even more intimate. These two cases have a strong justification to refuse their service on this point. The clerk who refused to sign marriage licenses does not. She simply needed to process application forms. It’s a bureaucratic action about as lacking in intimacy as you can get.

• Need. This point also works against the clerk denying marriage licenses. Applicants need a license approved by the government for their marriage to be recognized. Flowers and cake, however, are not necessary to get married or even to celebrate. They may be an important part of the celebration for some people due to tradition, but they aren’t required.

• Perceived Support. All three defendants in the cases I’ve been focusing on could be perceived as supporting same-sex marriage by providing the service requested. Trying to provide the service while making their opposition to same-sex marriage clear would be difficult without shaming the customers.

• Respect. There has been plenty of disrespect to go around in American values clashes. People protest with offensive signs and slogans, vent to the press with intent to shame or intimidate their opponents, etc. In the three cases I’ve been discussing, none of the defendants initially sought to publicly disrespect their customers. They declined service quietly, believing their customers could find what they wanted elsewhere. It wasn’t until the same-sex couples filed law-suits and went to the press that things turned nasty. Then most of the disrespect was targeted at the defendants. This element is closely related to courtesy.

• Targeting. I don’t think any of the same-sex couples that I’ve been talking about initially meant to target anyone. It appears they were simply trying to plan their weddings. But once they faced a declined service, they refused to go anywhere else, choosing to target their source of discrimination. It’s within their rights to do this, but in my mind, it weakens their case because they’re basically saying, “Your values are inferior to mine and I shouldn’t be unconvinced in any way by your moral bigotry.” It’s a harsh, judgmental action to target someone like this with the intent of shutting them down.

• Consistency. I’m not aware of any consistency issues in the cases I’ve studied. People on all sides seem to be motivated by ideals that they feel passionate about and have been pretty unbending with.

Finally, if we decide that certain discriminations based on morality beliefs need to be outlawed to protect the rights of those with opposing beliefs, we need to make sure the punishments are reasonable. When a small bakery business is forced to shut down because the owners refused to make a cake for a lesbian wedding, we’re being heavy handed. It’s enough to convict them with a misdemeanor offence and a small fine. Having a criminal record and being fined is serious punishment for an honest business owner. Slapping people with huge fines or throwing them in prison for trying to live by their moral convictions is oppressive if not unconstitutional.