My column last week was incomplete. I celebrated that the use of religious freedom as a barrier to full legal equality for lesbian, gay, bisexual and transgender people was running into widespread opposition, and I continue to believe that this reaction marks a milestone in our fight for legal equality.

But on rereading it I realized that I made a mistake: I took for granted that people agreed with my argument, and I ignored any serious consideration of the opposition.

So here’s the rest of the argument: There is a place for recognition of religious freedom in our system of assigning rights and responsibilities. In fact, I voted for the federal Religious Freedom Restoration Act in 1993. I now believe, based on overly broad interpretations of that law, that it should have included some clarifying language, but it is also the case that the state laws proposed in both Arkansas and Indiana went beyond what I supported.

For example, the Indiana law extended to corporations what was only a personal right under federal law, and that is relevant to one of two distinctions that must be made as we decided where to draw the line between the right to discriminate and the right to be treated fairly.

It is especially important to underline that we are dealing entirely with individual rights. In our personal, private capacities, we have entire freedom to be as bigoted as we choose. No one is required to befriend people of a different race, gender, sexual orientation, religion, etc. No one has to invite anyone whom he or she finds distasteful for any reason – including bigoted people – into his or her home, or socialize with them in any way.

But this right to exclude others from social intercourse does not apply to the conduct of business. Operating a retail establishment or providing a professional service has always carried with it the obligation to treat any would-be customer fairly, as long as that customer behaves appropriately in the transaction in question.

Some of my liberal colleagues have overstated the question when they said that those who succeed in business were largely obligated to others for their success, but conducting any commercial establishment is not an entirely individual matter. People operating a retail store do so within a framework of laws that confer various privileges. There are zoning laws that limit the number of such establishments that exist in any one place. Many businesses are inspected at public expense, providing assurance to customers that they will be dealing with entities that are honest and safe. The great majority of such enterprises are incorporated, a condition which bestows significant additional public benefits. And the very fact of competition means that there will be a limited number of such enterprises that can survive in any given area.

For these reasons, it has always been the doctrine, first in common law and later incorporated in various statutes aimed at specific forms of discrimination, that people who operate businesses are obligated to provide their services to anyone who complies with reasonable rules of behavior. No one is obligated to serve drunks or tolerate rudeness, but neither are business owners generally allowed to pick and choose whom they will serve.

Some have argued that preventing discrimination based on sexual orientation or gender identity would require a baker, for example, to make a cake depicting graphic same-sex activity. But that is wholly untrue. Anyone who sells cakes can set uniform rules that refuse to depict any such scenes. What is required here is simply that you cannot agree to portray a heterosexual couple doing things that you would not portray a same-sex couple doing.

There is a second distinction that is relevant here, and it is a legal concept. It is the contrast between a sword and a shield.

When I voted for the Religious Freedom Restoration Act, I was also voting for what I considered to be a shield. That is, the law was intended to protect individuals whose religious practices involve only themselves or willing family members from being prohibited from following their religion.

Distinct from this is the idea of the law as a sword, where religion can be employed as a weapon against others. When the law acts as a shield, a Jewish baker, for example, can refrain from using non-kosher ingredients – like lard; as a sword, however, it would allow him to refuse to sell his products to people whose religious practices fail to meet his standard.

Combining these two distinctions sets out what I believe are the appropriate parameters for reconciling religious freedom and the right to be treated fairly and equally.

Personally, in our individual capacities, we are free to be as selective as we wish in our associations. Once we open a business with all of the public protections that this involves, we are obligated to treat all potential customers the same.

To return to my vote from 1993, given what has occurred since, I now believe we should have been more explicit in describing this. But it now appears that the great weight of public opinion – including most importantly those who are themselves leaders in the conduct of business – will make this concept work along the lines I have described.

Barney Frank is a retired congressman and the author of landmark legislation. He divides his time between Maine and Massachusetts.

Twitter: @BarneyFrank

Copy the Story Link