Love the newlyweds, hate the wedding

|The Volokh Conspiracy |

In a recent interview on National Public Radio, GOP presidential candidate Sen. Marco Rubio (R-FL) condemned discrimination against gay individuals and same-sex couples in public accommodations, business services, housing, and medical care, but said business owners should be allowed to refuse service specifically for same-sex weddings that they object to on religious grounds. From the interview (full transcript available here):

NPR (Steve Inskeep): Let me ask about a domestic issue. In recent weeks, the state of Indiana passed a Religious Freedom law, which was interpreted by many as discrimination, by others, as protection for people who don't want to take part in gay marriage. You defended the law and spoke about the hypothetical example of a florist who was asked to participate in a gay marriage and wanted to refuse. You said that person should have the right to follow their religious beliefs. Indiana, though, has since changed the law. Do you still support that concept?

Marco Rubio: Well, to be fair, I haven't read the change in detail to give you an opinion on it specifically, but I'll tell you where I stand. I don't believe you can discriminate against people. So I don't believe it's right for a florist to say, I'm not going to provide you flowers because you're gay. I think there's a difference between not providing services to a person because of their identity, who they are or who they love, and saying, I'm not going to participate in an event, a same-sex wedding, because that violates my religious beliefs. There's a distinction between those two things. So, certainly, you can't not—it's immoral and wrong to say, I'm not going to allow someone who's gay or lesbian to use my restaurant, stay in my hotel, or provide photography service to them because they're gay. The difference here is, we're not talking about discriminating against a person because of who they are, we're talking about someone who's saying—what I'm talking about, anyway, is someone who's saying, I just don't want to participate as a vendor for an event, a specific event that violates the tenets of my faith.

NPR: What if two gay people get married and then they go that night to a hotel. Can the hotelkeeper refuse service to them?

Rubio: That's not part of an event. Again, I mean, that's, there's a difference between saying, we're not going to allow you to stay in our hotel, common lodging establishment where people have a right to shelter, food, medical care, and saying we're not going to, what we're not going to do is provide services to an event, to an actual event, which is the wedding itself. And I think that's the distinction point that people have been pointing to, and, because mainstream Christianity teaches that marriage is between one man and one woman. People feel very strongly about that. And to ask someone to individually provide services to something of that nature, I think violates their religious liberty.

NPR: There's a big question lurking here, which is that most Americans, according to surveys, now support gay marriage. A large minority of Americans still oppose gay marriage. The question is, that people seem to be wrestling with, is, what ground do opponents of gay marriage have left to stand on? What ground should they have to stand on?

Rubio: First of all, if the majority of Americans support gay marriage, then you'll see it reflected in changes in state law, which has always regulated marriage. And so at the end of the day, if a majority of people in any given state in this country petition their legislature to change the definition of marriage to include the marriage of two people of the same sex, that'll be the law of the land. And that is what it is. Separate from that, there's a constitutional protection of religious liberty that allows people to live by the tenets of their faith both in their public and in private life. That doesn't mean that you're allowed to go in and disrupt a gay wedding. But by the same token, it doesn't mean that someone's allowed to come to you and force you to be a participant in a ceremony that violates the tenets of your faith. And to be honest, in the real world, 99.9% of the time, a same-sex couple doesn't want a florist or a photographer at their wedding that doesn't agree with the choice that they've made. So we're really talking about an issue that in large part is really not going to manifest itself in daily life, but in the instances that it does, there are individuals that don't want to be compelled by force of law to participate in an event that puts them in the position of violating their religious faith. There's a difference between that and discriminating against an individual because of who they are.

NPR: Are there are other specific situations on your mind where you feel that people who are opposed to gay marriage would need some kind of protection from, from it?

Rubio: Well, I mean, that's the one that's in the news today. Again, I don't, we can always sit here and engage in hypotheticals, this, that, and the other, but at the end of the day, I mean, that's the one that's emerged because there's real cases behind people being fined for not providing services to a, to a ceremony as opposed to individuals.

While Rubio stopped just short of explicitly endorsing anti-discrimination laws protecting LGBT people, that seems the clear import of his comments. If so, it would set a new benchmark for Republican candidates on the subject of gay rights. Still, caution about over-reading his comments is warranted. As far as I know, he's never actually endorsed a gay-rights bill.

Rubio's proposed line between permissible and impermissible discrimination distinguishes between refusing service based on "identity" ("who you are and who you love," as Rubio describes it) and refusing to "participate" in the wedding itself.

That conception would condemn discrimination in the vast majority of anti-gay discrimination cases, which do not involve actual weddings, as when an auto repair shop owner declares that his Christian faith commands him not to serve gay customers, or when a pediatrician refuses to keep an appointment to see the baby of a lesbian couple after "praying" about it, or when taxi drivers eject same-sex couples whose mild show of affection in the back seat offends religious views about homosexual conduct.

In the small number of wedding-related cases where Rubio would grant a religious exemption, the vast majority of those-he speculates 99.9%-will never get to litigation. Same-sex couples and a lot of their friends will quite rightly want nothing more to do with such business owners.

How about that 0.1% of wedding-related service providers (cake bakers, photographers, and florists) where gay couples demand service-the dozen or so cases nationwide that seem to have captivated advocates on both sides? An interview is not a law review article, and Rubio can't be expected to have addressed every nuance. But it's very easy to get pulled into the weeds on his distinction between identity-based discrimination and wedding-participation discrimination.

For Rubio, a florist should not refuse to sell flowers to a gay person, but should be allowed to refuse arrangements for a gay wedding. But suppose the couple is going to pick up the flowers at the shop rather than have them delivered and arranged at the wedding site. Is sale to the couple under these circumstances still "participation" in the event or is refusal to sell flowers for the event a form of discrimination based on "who you love"?

Rubio also thinks that a hotel should not deny a room to gay newlyweds. But could the hotel refuse to rent out space in a ballroom for a wedding reception?

Rubio's remarks are a search for some middle ground between absolutist approaches on both sides-either no anti-discrimination protection for gay people at all (endorsed by many religious conservatives and some libertarians) or full anti-discrimination protection with no exceptions for specific events like marriages that are heavily laden with religious meaning for many people.

For many gay-rights advocates, the very distinction between a person's status or identity as gay and the person's related conduct (like getting married to a same-sex spouse) harkens back to the old phrase, "Love the sinner, hate the sin." It will be no more acceptable in the context of refusing service to gay weddings than in, say, the ejection of an openly gay couple from a cab.

For many religious conservatives, the passage of any laws specifically protecting gay people from discrimination signals a decline in social morality and an unacceptable intrusion on religious faith. Strong libertarians will have their own objections to such laws.

But Rubio' s approach may have a commonsensical and intuitive appeal to the vast majority of Americans who fall somewhere between those opposite poles.