10/01/2012 01:48 pm ET Updated Feb 02, 2016

Whites Only, Heterosexuals Only: What's the Difference Again?

Recently, George Will, in his his oped piece in the Washington Post, took up the cause of Elane Photography, a New Mexico business owned by Elaine Huguenin and her husband. The Huguenins are being sued for refusing on religious grounds to photograph a commitment ceremony between two women. Will reduced the case to this simple question: does New Mexico have an interest in compelling "Huguenin to provide a service she finds repugnant and others would provide?" In short, can Elane Photography hang a "Heterosexuals Only" sign on its business? For Will the question is an unequivocal and stunningly easy yes.

But he doesn't stop there. Will not only concludes that Elane Photography should have the right to discriminate based on sexual orientation, he goes on to chastise the affected couple for bringing suit. Even more, he suggests that "perhaps advocates of gay rights should begin to restrain the bullies in their ranks." Or to put a historical spin on it: if there is a lunch counter willing to serve you, why try to sit at one that finds you repugnant? At least Will didn't suggest that the couple be arrested for challenging the Huguenins' policy as thousands of civil rights protesters were for seeking the desegregation of public accommodations. Separate but equal lives on.

I thought our country had had this conversation. There was a time in our not too distant past that we allowed businesses to hang signs on their doors that said "Whites Only," where businesses were free to refuse service to individuals based solely on the color of their skin. The Huguenins' assertion that their refusal is based on religious grounds is nothing new. As I noted in a previous post, the segregation of the races was long defended on religious grounds. The Supreme Court implicitly rejected such religious justifications in Loving v. Virginia when it declared miscegenation laws that prohibited interracial marriages unconstitutional. In its opinion the Court never acknowledged nor apparently gave credence to the trial court's overt religious justification for the miscegenation laws.

But history has a tendency to repeat itself, and here we are again. Mr. Will, along with many others, will surely challenge my comparison between sexual orientation and race on a number of grounds. Race is an immutable characteristic while discrimination based on sexual orientation is, according to Will, simply a "dispute based on sexual activities between people of the same sex." Under this premise, Ms. Huguenin is not discriminating against a person or group, she is rejecting on religious grounds a behavior she finds "repugnant." But that too is an old argument. The miscegenation laws declared unconstitutional in Loving were simply a veil for regulating sexual activity between the races. It wasn't marriage that made the white majority uncomfortable; it was the idea of interracial sexual activity. Indeed, many states criminalized such conduct just as many states criminalized sodomy until Lawrence v. Texas declared those laws unconstitutional too. Moreover, sexual orientation as an immutable characteristic is becoming increasingly accepted in the scientific literature and legal world. In Attorney General Holder's letter to Congress explaining why the Department of Justice would no longer defend DOMA, he cited to the "growing scientific consensus accepts that sexual orientation is a characteristic that is immutable."

Unfortunately, the Huguenins are not alone in their desire to refuse service to gay and lesbian couples. In 2012, the New Hamphire legislature debated a bill that would allow a business owner to opt out of providing wedding services, such as photography and catering, if doing so violated their religious beliefs. In Vermont, the Wildwood Inn discrimintaed when it refused to accommodate a wedding between a same-sex couple. In Colorado, a bakery refused to make a wedding cake for two men. And the list goes on.

These questions are not going away. Nor will a state or federal court decision end the debate. But nothing will change if gay and lesbian couples accept Will's admonishment to be satisfied with the status quo. Where would we be if John Lawrence and Tyron Garner plead guilty instead of challenging their arrest in Lawrence v. Texas? Where would we be if Mildred and Richard Loving and the gay and lesbian couples in Vermont and Massachusetts had willingly accepted that their states' marriage laws did not apply to them? Where would we be if Rosa Parks hadn't sat in the front of that bus or if black students hadn't sat at the lunch counter in Greensboro, North Carolina? Mr. Will may consider such people bullies, I consider them courageous.