About The Indiana Law Allowing Business Owners to Refuse to Aid A Gay Wedding

A new law scheduled to go into effect in the state of Indiana in July, the “Religious Freedom Restoration Act”, is supposedly intended to protect the freedom of religious faith of the people of the state. However, it has met with harsh criticism as it is seen as a license to discriminate against LGBT people. The law is not intended to allow discrimination against gay people simply for being gay, but will apparently allow business owners to refuse to serve gay couples seeking to marry – for instance wedding hall owners opposed to such an event held on their property.

According to the New York Times’ analysis, the law allows companies and individuals to refuse to provide service that will place a “substantial burden” on their religious beliefs. Should their refusal land them in court, the judge would have to balance the burden upon their religious beliefs and the state’s desire to prevent discrimination. CNN’s legal analyst believes that the law will not allow people to decline to serve individual gay persons, but will probably enable people to refuse to aid in any way the celebration of a gay wedding. The issue has already drawn furious protests by the gay community, and condemnations from various activists and politicians (such as Hilary Clinton). The Governor of Connecticut has promised to sign an order banning trips subsidized by his stte to Indiana, as has the Mayor of Seattle. Apple CEO Tim Cook wrote an article decrying the bill, and Ashton Kutcher and Miley Cyrus are tweeting with the hashtag #boycottindiana.

Israeli readers might recall a similar case to come before the Israeli bench. In 2012 Judge Dorit Finestein imposed a 60,000 ILS fine on the guesthouse at Moshav Yad HaShmona, which has refused to hold the wedding of Tal Yaacobovitch and Yael Biran due to their sexual orientation. “The Judge noted that the object of the fine was not only to compensate the couple, but also to educate the public at large in values of equality and human dignity” (from an article by Ilan Lior in Haaretz.) This case had to do with a wedding hall belonging to Messianic Jews, whose faith stood in opposition to the nuptials in question.

Would we accept a wedding hall owner unwilling to rent his hall to a wedding of Blacks/Mizrachis/Jews? Of course not, and in Israel, like in many democracies around the world, there are many laws prohibiting discrimination on the basis of race. What about a wedding hall owner who won’t rent his hall to an interracial wedding? Of course, those same laws will prohibit that as well. And what of a hall owner who won’t rent his hall to religious people? Or secular ones? I think we would not accept such a reality.

So ostensibly, we are unwilling to countenance discrimination against service seekers. But the matter is not so simple. I think none of us will insist that a private service provider (not a public official or public service) has no right, under any circumstance, to refuse service to a customer. Thus, for example, there have been several cases in which clergymen (not business owners) have been sued for their refusal to marry gay couple – which is completely absurd in my opinion. Must a lawyer accept any client, even those he believes to be immoral criminals? Must a plastic surgeon provide breast enlargement to any woman who shows up at his clinic? How can we force a private person to take on a client whom he or she not only doesn’t want to serve, but ones they believe they must not serve?

But let’s focus on halls and weddings. Consider the following example:

You own a wedding hall. You’re an ultra-orthodox Jew. You have a religious problem with renting the hall to Jews on Friday nights and Saturdays, because you believe that Jews are obligated to keep the Sabbath, and you are unwilling to aid in what to you is a transgression. Likewise, you won’t rent the hall to Jews who want non-kosher food catered. You have no problem renting the hall to non-Jews on the weekends or having non-Jews have non-kosher food catered, and of course you have no problem renting to Jews in general.

Should you be allowed to operate this way?

Here’s another example:

You own a wedding hall. You’re an atheist and a feminist. You have an ideological problem with renting your hall to religious folks who practice gender separation. You don’t want your hall to feature men sitting apart from women, or only male waiters to serve men and only female waiters to serve women. You have no problem with renting the hall to religious people, but not if they practice such separation. The same goes for religious weddings of minors, age 17, let alone 14. That will not happen in your hall.

Should you be allowed to operate this way?

Here’s another example:

You own a wedding hall. You’re vegetarians, or maybe vegans. You don’t offer catering service in your hall, and you allow your clients to hire outside catering services. Although you strenuously object to eating meat, you realize that most people are meat eaters, and are willing to have couples marry in your hall with catering that includes meat. One day a couple comes in wishing to rent the hall. While talking with them you realize that they intend to have catering that serves lobsters. In order for the lobsters to be fresh (and for the added spectacle), they intend to place a giant aquarium in the hall in which the living lobsters will swim, until taken out and thrown live into vats of boiling water. This is too much for you, and you inform the couple that they cannot rent your hall.

Should you be allowed to operate this way?

Here’s another example:

You own a wedding hall. For political and moral reasons, you strenuously object to Israel’s control of the West Bank. You boycott products from the settlements, and won’t rent your hall to people who live in settlements.

Should you be allowed to operate this way?

Here’s another example:

You own a wedding hall. You strenuously object to marriage between Jews and non-Jews. For you it’s really not a racial matter, but one of religion and tradition. It is important to you to prevent what you view as a destructive process of diluting and even destroying the Jewish people. You won’t rent your hall for weddings between Jews and non-Jews.

Should you be allowed to operate this way?

Not all of these examples are matching, and we should distinguish them from one another. There is a difference between discriminating against customers on the basis of their race/ethnicity/religion and discriminating against customers on the basis of their actions. The difference stems from the fact that a person’s origin or religion are a deep and essential part of their identity, whereas their actions are not usually a part of their identity. A large part of the human rights discourse is based on what we perceive as sources of identity and deep meaning in our lives. The freedom of expression, for instance, is important not only for the existence of a healthy society with a plurality of opinions and a capacity for self-criticism, but also because one’s ability to express one’s opinions is a central part of one’s self-perception, and one’s dignity. Likewise the freedom of religion and conscience, or most simply put the physical wholeness of our body.

Therefore refusing to rent a hall to someone who boils lobsters alive is not tantamount to refusing to rent a hall to Jews. Likewise, one’s desire to keep one’s hall from hosting a violation of the Sabbath, or the serving of non-kosher food, is not an unfair discrimination, but a protection of one’s religious faith.

And what of a boycott against settlers? Here the matter is more complex. There are people for whom living in Judea and Samaria is a deep part of their identity. They’re not just located in the occupied territories – they are settlers. This is how they perceive themselves; it is a central part of their identity. They view it as a high value and take pride in it. On the other hand, it seems to me that the settler identity is weaker than a Jewish or LGBT one. This is an intermediate case. Is it permissible to discriminate against settlers and refuse to do business with them? When the Boycott Law was passed in Israel, banning calls for boycott based on place of residence, many (myself included) saw it as a base and undemocratic attempt to legitimately oppose the occupation. It seems that many people believe that a private business owner (or consumer) should be allowed to boycott settlers just for being settlers.

Now undoubtedly, homosexuality is a matter of identity, and not of sexual activity. Sexual orientation is considered nowadays as a deep element of a person’s identity, and therefore a central dimension of one’s self-perception and basic dignity. This is why we take such offense at discrimination against LGBT’s – because the logic at the foundation of the human rights discourse leads us to the conclusion that they have equal rights exactly for who they are.

Is it therefore wrong for a private person to refuse to provide a service for gays wishing to get married? Let’s say that person is willing to rent his or her hall for a gay or lesbian person’s birthday party. They have no problem with homosexuality in and of itself – they are not homophobes. They question is must we force such a person to rent their hall specifically for a same-sex marriage, which is to say for the performance of an act they hold to be immoral/contrary to the commandments of God.

Let us compare it to a person unwilling to rent their hall for a wedding with gender separation. By so doing he is basically banning from his business all ultra-orthodox people and most national-religious ones. Is this permissible? We may think it isn’t, and that we should force him. Perhaps we also think same-sex weddings shouldn’t be refused, and that we should force individuals for whom this is against their world-view to rent their hall.

On the other hand, perhaps we think one must not refuse a LGBT wedding but may refuse an ultra-orthodox one. I think that is a legitimate stance, but we must understand that it stems from a particular liberal conception and carries a particular liberal agenda. This is about furthering an agenda based upon the growing discourse of rights, with the position being that the point the discourse of rights has reached in our times is the point to which the law must move. One may refuse to host an ultra-orthodox wedding because they harm the rights of women, and one must not refuse to host a LGBT wedding because their right to marry must not be abridged.

From another perspective one may say that what we have in the last example is an agenda of secularizing the public sphere, like the law forbidding covering one’s face with a burqa in France or the law banning the construction of mosque turrets in Switzerland, that is, a law that consciously overrides a certain religious obligation (in this case the prohibition on same-sex marriage) in order to promote a more secular public sphere.

This is not my position, but as mentioned above I believe it’s a legitimate position. What I’d like to stress is that it is a position. Meaning that there is ideological baggage (let’s say, one promoting liberal democracy and/or secularism). Therefore to the same extent we must recognize that there is nothing obviously true here, and that there can – and should – be public debate between this position and opposing ones.

Rejecting religious or LGBT customers because the nature of the weddings they hold is immoral in the opinion of the hall owner will most likely be perceived by the rejected as a rejection of their identity, and is therefore a very harsh act. However, it can definitely be argued that the rejection is not of religious or LGBT people, but only of the specific act they commit in marriage. Of course this act too reaches far deeper into their identity than eating live-boiled lobsters does into the identity of the diner. This is a far more essential expression of “who they are.” And yet, it can be argued that this still doesn’t turn the rejection of their wedding into a rejection of them. The wedding hall owner can claim to have no problem with observant people or gays, but only with the way they marry.

The context also matters here. If the group discriminated against is a small, weak one which is ostracized by most of society, there is cause for the law to protect it. For instance, if LGBT people were rejected by 90% of wedding halls, and had no reasonable option of holding their weddings, there would be reason for a law to protect them and force hall owners to rent them their halls. I believe the reality is opposite. Hall owners unwilling to rent their halls to same-sex weddings are a minority, and the moral-religious position they hold is becoming less and less accepted in the Western society of our time. See above for a very partial list of those protesting the new law in Indiana to get a picture of the forces that are up against its defenders.

I believe that LGBT people have the right to get married, that is to say, that this is a basic right, and therefore I thing the state should be required to allow same-sex marriage by law (I hope to write about the underlying principles of this sometime). On the other hand, I think that under current conditions, where there is no shortage of halls and officiators who would be glad to host or conduct a same-sex wedding, private business owners should be allowed to retain their beliefs and refuse to hold same-sex weddings in their businesses. This is because society has an interest and an obligation to allow individuals to freely preserve and express their religious and/or moral convictions.

This issue isn’t simple. It involves religion and politics, private morals and legal ruling. It also mixes a certain social perception with a certain political culture, and also a contextual analysis of the facts on the ground. The law in Indiana which allows private people to refuse to take part, as business owners, in a same-sex wedding, defends their private notion of what is good, and this is important. It does not relieve them of the need to justify it, if required, in a court of law. It also does not prevent protests, and even boycotts, by the general public against them. I find this to be a proper balance.

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(I Thank Yael Peled for her enlightening comments on a draft of this article. Of course, all opinions and errors are mine.)

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3 Responses to “About The Indiana Law Allowing Business Owners to Refuse to Aid A Gay Wedding”


  1. 1 Shlomit Raz 06/04/2015 at 15:20

    A fascinating article. I’m going to share it with my overseas friends. Thank you and Chag Sameach.


  1. 1 Daily Reyd - Torah Musings Trackback on 13/04/2015 at 16:24
  2. 2 bbs.kgou.cc Trackback on 13/06/2017 at 17:22

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