Culhane: The gay bride who was told buying a wedding dress is 'illegal'
“What you’re describing in this paperwork is illegal. And we do not participate in any illegal actions.”
That was the text of the voicemail left on the telephone of Alix Genter. The caller was Donna [last name unknown], the manager of a store called “Here Comes the Bride.”
Accompanied by a phalanx of supportive family members, Alix had chosen a wedding gown at the store. It wasn’t until Donna reviewed the paperwork Alix had filled out that she figured out that the gown was for a same-sex union. And that’s what prompted the ill-advised phone call quoted above.
These events took place in New Jersey, which has a civil union law. But even if it didn’t, there would be nothing “illegal” about buying a dress! Nor, by the way, would there be anything unlawful about participating in a same-sex marriage ceremony, even in a state that bans same-sex unions.
But it’s not only the first sentence in the voice mail transcript that’s inaccurate. Because by refusing to deal with Alix, Donna and the bridal shop are, in fact, participating in an illegal activity themselves. Under New Jersey’s anti-discrimination law, it’s unlawful for any place of public accommodation to discriminate on the basis of either sexual orientation or civil union status.
It’s clear from the statute that a store held open to the general public counts as a place of public accommodation. And it seems beyond dispute that Donna is discriminating based on some mélange of the related facts that Alix is a lesbian who plans to enter into a civil union.
In a phone conversation with a reporter, Donna revealed that the depths of her bigotry have yet to be plumbed. I recommend reading the whole story, but the highlights include Donna accusing Alix of “stirring up drama,” opining that her use of the word “partner” on the paperwork was provocation (was she supposed to list her future wife as “groom”?), and then launching into a series of stories that might have been placed under the heading “When Lesbians and Gays Go Bad.” (Implication: straight people never do.)
Now, though, the uni-named Donna seems to be backtracking. Not surprising, given that her idiocy has provoked a quick and violent storm against the business, and her likely recognition that she might be on the wrong end of a lawsuit.
This is exactly why we need laws like this. In many parts of the country, Donna’s actions would probably be found legal. (Even absent a law protecting against discrimination based on sexual orientation, it might be possible to argue gender discrimination, but it’s a long shot.) It’s hard to gain social equality when the laws reinforce the notion that the LGBT community is served only at the pleasure of the heterosexual majority.
No one understands this better than Supreme Court Justice Antonin Scalia. In a barely civil dissent to the Court’s decision in Lawrence v. Texas, which declared laws prohibiting private, intimate sexual conduct between two members of the same sex unconstitutional, the angry oenophile tried to erase the handwriting on the wall.
He was particularly worked up over the majority’s statement that these anti-sodomy laws were “an invitation to subject homosexual persons to discrimination both in the public and in the private spheres.” For Scalia, such an “invitation” should continue to be extended:
“Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children’s schools, or as boarders in their home. They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive. The Court views it as ’discrimination’ which it is the function of our judgments to deter.”
Yep, that’s how your colleagues see it. And these constitutional, anti-discrimination principles are given more specific shape by laws like New Jersey’s.
Channeling Scalia, Donna stated: “There’s right, and there’s wrong. And this is wrong.” Finally, she’d uttered a couple of accurate sentences – even if she had the wrong “this” in mind. And the force of law is squarely against her.
Of course, as the anti-sodomy laws themselves illustrate, laws aren’t always rational or just. But in the case of laws furthering basic anti-discrimination (anti-caste, put differently) principles, the law and morality dovetail quite nicely.
There goes “Here Comes the Bride.” Good riddance.
John Culhane is a law professor at Widener University School of Law and a Senior Fellow at the Thomas Jefferson School of Population Studies. He has recently written on bullying of LGBT youth, using public health principles to advance the discussion of marriage equality, and a lawsuit against the NFL.