When Religious Freedom and Basic Rights Collide, It’s Bad for Business

Years ago, while traveling with a boyfriend and another same-sex couple in Brazil, the four of us returned to our accommodations to find padlocks inserted on our room doors. The proprietor hadn’t known we were gay before renting to us, and it turns out she objected to us on religious grounds, we later found out through our guide. Too cowardly to confront us personally–we never saw her again–the business owner had nonetheless physically barred us from our rooms.

We might have shrugged it all off, but it was nighttime and we were in the middle of the Amazon, in entirely unfamiliar territory replete with tarantulas the size of small dogs, and there was no other lodging around. Besides, we’d paid for our stay.

But such experiences are not limited to Brazil. I’ve also had my life threatened verbally by homophobic customers while filling up my car at gas stations in the U.S., had the New Testament placed firmly on my pillow each night by an objecting evangelical maid in another hotel, and been directed to the backs of restaurants in rural America with my partner by waitresses who said the better seats were not available to us, although they were clearly empty.

As a consumer, it’s hard to convey the poisonous stew of rage, humiliation, and sense of utter vulnerability that actions like this can produce in you. Yet a segment of U.S. business owners today wants to enshrine such behavior into law. As the New York Times reported Tuesday, at least half-a-dozen court cases involving entrepreneurs claiming religious beliefs as grounds for denying services to LGBT customers are being litigated today. In each case, business owners are invoking First Amendment rights to free practice of religion and speech.

Such business owners have been emboldened by the Supreme Court’s Hobby Lobby decision this summer, which narrowly ruled that businesses may indeed object on religious grounds to provisions in the Affordable Care Act that provide for birth control or fertility treatments for women. They’ve also taken a cue from the raft of statewide Religious Freedom Restoration Act (RFRA) bills wending their way through statehouses across the country, allowing businesses to deny services to customers based on religious beliefs.

Sounds Familiar

Meanwhile, a local bill being debated now among Michigan lawmakers would take things a step further. In addition to allowing businesses to discriminate against customers for religious reasons, medical workers could refuse to administer aid to LGBT people based on their religious beliefs. (It makes me wonder if the Michigan legislators had ever heard the story of the African American blues singer Bessie Smith, who died on a roadway in Mississippi in 1937 following a car accident because a white doctor tended to other whites injured in the accident while refusing to treat her.)

Businesses, it turns out, are curious hybrids. On the one hand, the vast majority are privately held entities that provide a livelihood to the owners. On the other, they are public accommodations that interact with and exist to serve the public, on whom they depend for economic survival. And so they must abide by national laws, for example, with respect to the environment and wages, as well as national and state laws that forbid discrimination in the broadest sense.

“It is important to emphasize that First Amendment and RFRA rights are not absolute, and there are limits when they come into conflict with other rights and values, and this is what we are trying to figure out now, where that boundary is,” says Katherine M. Franke, a professor of law and the director of the Center for Gender and Sexuality Law at Columbia University.

Indeed, America is in the middle of a national dialogue now over gay rights, and same-sex marriage, that is not unlike the debate carried out between the 1940s and 1970s over civil rights for African Americans, Franke says. (As late as the 1970s, Bob Jones University enacted rules against interracial dating by students, based on religious objections, later overturned by the Supreme Court.)

Still, to my mind at least, discrimination by entrepreneurs is an abuse of public trust. Not only because discrimination of any kind is a virulent, slimy slope, but also because there’s a long, sad history of using businesses to make horrific, ideological statements that can cut both ways.

In the U.S., throughout the Jim Crow South, signs in business windows that read “Whites Only” were the norm until the Civil Rights Acts of 1964 and 1965 put an end to such overt racial discrimination. But last month also marked the 76th anniversary of Kristallnacht, when Nazis stormed Jewish-owned businesses throughout Germany and burned them to the ground, sending tens of thousands of Jews off to concentration camps. The Nazi attack on businesses was calculated for maximum effect, because businesses operate in the public sphere and are vital parts of communities.

Hope Rises

Fortunately, businesses that take extremist positions, claiming religion to support discrimination, are in the minority. Plenty of companies, including most Fortune 500 businesses, welcome and encourage the patronage of LGBT consumers and inclusion of LGBT employees and suppliers.

That just makes good economic sense, says Justin Nelson, co-founder of the National Gay & Lesbian Chamber of Commerce.

“Most businesses understand that business is good when it’s good for everyone, and you are able to grow when you look everywhere for the best employees, suppliers, and customers,” Nelson says.

And that also works both ways.

A few weeks ago, when my boyfriend and I rented a car from Enterprise, the agent asked if we were domestic partners. Taken aback, I said we were, and asked why she wanted to know. “Because we don’t charge for an extra driver if you’re married or are traveling with a domestic partner,” the agent said. That definitely got my attention, and ensured that company would get my business in the future.