It is said that close cases make bad law, and they often make bad ethics too. Legally, the culpability of Cynthia and Robert Gifford is not at all certain. Ethically, however, as right as they may be on the law, the conduct of their persecutors, same-sex couple Jennifer McCarthy and Melisa Erwin, has been unnecessary, without compassion, vindictive and cruel.
The Giffords are active Christians who own Liberty Ridge Farm, located in Schaghticoke in upstate New York. They supplement the farm’s revenue with attractions designed for kids and families, including a pumpkin patch, a corn stalk maze and a rustic barn for parties and weddings. That rustic barn has three stories. The Giffords reside on the top floor, with the bottom floor designed for events, and the second floor consisting of rooms for activities relating to their preparation and management.
When Cynthia Gifford received a phone call from Melissa McCarthy inquiring about having her wedding at the farm, Cynthia invited her to visit and assess the venue.In the follow-up phone call, McCarthy revealed for the first time that the affair would be a same-sex wedding. Cynthia explained that the family’s faith held that marriages can only be a union of a man and a woman, so they did not make their farm available for ceremonies. She said, however, that the couple was welcome to hold the wedding reception there.
Apparently expecting this response, Jennifer and Melissa surreptitiously recorded the phone call. Armed with the recording, they contacted the New York Civil Liberties Union who immediately filed a discrimination lawsuit against the Giffords on their behalf.
The Giffords argue that this was not a matter of discrimination, but religious practice. They had hosted events for gay clients before, and employed gays. “The Giffords’ objection was to hosting and participating in the wedding ceremony itself and not to providing service in general to lesbians,” their lawyer said.
They lost. Bronx administrative Law Judge Migdalia Pares rejected Giffords’ claim that the farm, which is also their home, is not a place of public accommodation and is therefore not subject to the anti-discrimination provisions of New York’s Human Rights Law. She ruled that Liberty Ridge qualifies as a public accommodation because it regularly collects fees for space, facilities, services and meals, so it cannot be considered “distinctly private.” The fact that the Giffords reside at Gifford Barn does not render it private. The Giffords were ordered to pay $13,000 in fines and restitution.
The Giffords are appealing.
The Giffords, according to the judge, “unlawfully discriminated against complainants solely on the basis of their sexual orientation.” Another way of looking at it is that Jennifer and Melissa, now married, discriminated against the Giffords solely on the basis of their religious beliefs. Why couldn’t they agree to respect the Giffords’ religious beliefs, and use the property for the wedding reception only, having the actual ceremony elsewhere? Would that really be such a hardship, or a compromise in principles? Indeed, if the nation and committed progressives really aspire to tolerance, diversity and mutual compassion and understanding, why wouldn’t that be the ethical, desirable, reasonable compromise?
I know the response to that question, of course. This was a matter of principle. This would send a message. Crushing the Giffords was necessary to show that all opposition to same sex marriage would eventually be crushed under the advance of history. Never mind that these were not anti-gay bigots, and that they have as much right to practice their faith as a lesbian couple has a right to wed. This is a zero sum game, apparently. Besides the law—probably–supports McCarthy and Erwin.
I think the actions of Jennifer McCarthy and Melisa Erwin violate the Second Niggardly Principle, which is a rule of kindness, compromise and common sense. It holds…
“When an individual or group can accomplish its legitimate objectives without engaging in speech or conduct that will offend individuals whose basis for the supposed offense is emotional, mistaken or ignorant, but is not malicious and is based on well-established impulses of human nature, it is unethical to intentionally engage in such speech or conduct.”
The couple’s legitimate objectives in this case were to get married and celebrate the marriage in an attractive venue. I don’t think setting out to punish a couple for belonging to a religion that doesn’t accept same sex marriage is a legitimate objective, nor is turning their lives upside down, nor forcing them into the maw of litigation to bend them to their will. Does the gay rights movement really feel that all those who have not yet accepted the justice and inevitability of same-sex marriage must be exposed and made to suffer? It seems that this is McCarthy and Erwin believe, and what this case will come to stand for.
If so, I think the story of the Giffords will do more harm than good, hardening opposition, confirming suspicion, undermining trust and ultimately making acceptance for gay couples harder, however it turns out in the courts. Just because you have the law on your side doesn’t mean you have to use it when doing so involves unnecessary harm to others. Gays want compassion, kindness, tolerance and fairness. It would help if they showed a willingness to give as well as receive.
Pointer: Steven Mark Pilling