Rhode Island's Dangerous Dance on the Anti-Gay Cliff

As Rhode Island considers marriage equality legislation, the Rhode Island Senate is dancing dangerously close to throwing Rhode Island back into an era where a state government actively gives a nod of approval to acts of discrimination.

According to media outlets, state senators may push for religious exemptions for religious organizations and individuals -- including private businesses -- from preexisting nondiscrimination law in the marriage equality bill. The result of which would allow not only groups like the Knights of Columbus or the Salvation Army to refuse to facilitate same-sex marriages in terms of providing goods, services, or facilities for the solemnization or celebration of same-sex marriages, but also the local florist, baker, caterer, or wedding photographer.

Adopting exemptions for private, for-profit businesses flies in the face of our American civil rights tradition and would gut nondiscrimination policies by allowing individuals to, as Justice Scalia once wrote, "become a law unto himself." In essence, every individual engaged in wedding-related commerce could elect to circumvent nondiscrimination law by claiming they have a sincere religious objection to same-sex marriage, thus undermining the state's compelling interest to stamp out invidious discrimination against the LGB community. These types of objections from commercial vendors are not speculative. Alleged cases of businesspersons refusing to facilitate same-sex couples' commitment ceremonies, civil union events, marriages, and subsequent celebrations have arisen in Colorado, Oregon, Vermont, New Jersey, and New Mexico.

Exemptions for religious institutions and religiously affiliated social service, educational, and fraternal organizations have been the norm in recent same-sex marriage legislation. Every state that has enacted marriage equality and states considering marriage legislation in Illinois and Minnesota have included protections for religious groups from any requirement to facilitate same-sex marriages if they contradict with their religious beliefs. This is a proper exercise of legislative judgment that keeps with our constitutional traditions.

Indeed, civil marriage recognition for same-sex couples has faithfully adhered to the Founders' vision of religious liberty. State marriage equality efforts have embraced a bedrock principle advocated by Thomas Jefferson who said, "Every religious society has a right to determine for itself the times of [religious] exercises, and the objects proper for them, according to their own particular tenets; and this right can never be safer than in their own hands, where the Constitution has deposited it."

However, florists, photographers, caterers, and bakers, do not exist for the purpose of promoting religious doctrine and religiously inspired good works. Rather, they have willingly entered the stream of commerce motivated by the pursuit of profit. As such, those businesspersons assumed the duty to comply with civil regulations -- including nondiscrimination laws.

Seeking financial profit, unlike inherently religious motivated activity, is not a fundamental constitutional value. The two should not be conflated. This is why every state that has enacted marriage equality rejected private business exemptions. Even the Republican dominated, Tea Party leaning, New Hampshire House of Representatives overwhelmingly killed for-profit public accommodations exemption legislation for marriage related services in 2012.

This nation settled the question of whether private businesses should be subjected to nondiscrimination laws. For nearly 50 years now, this country has firmly held onto the belief that for-profit entities cannot discriminate against protected classes in ordinary commercial transactions. That principle must not now be undermined. How religious objectors to same-sex marriage treat same-sex couples in their houses of worship and religious organizations is not within the state's prerogative to regulate -- even though marriage equality advocates find it distasteful. How we treat same-sex couples in the public square, however, is.