A sincere if flawed attempt to address a serious emerging problem, from a exceptional scholar and advocate. If one looks only at this final suggestion as to a defensible compromise between the rights of gay persons to enter the public square without discrimination, and for sincere religious believers to ply their trade without compromising their principles, Koppelman comes off as reasonable: Businesses can violate antidiscrimination laws only if they have posted signs and other notices that they will not serve gay persons. That policy protects gays from the shock of exclusion from business that have presented themselves as open to the public, but does risk making antigay discrimination more visible and thus unexceptional. Businesses on the other hand are able to preserve their personal beliefs but risk public animosity from such open bigotry, perhaps to the point of losing enough customers that they must close the shop. He similarly fails to adequately identify “religion”, instead conflating it with churches.
Both gain, and both lose, and thus on the whole this seems generally tolerable.

Getting to this point, however, Koppelman expresses some troubling premises that are disappointing from someone who is generally thought of as an advocate of civil rights of gays. First, he states repeatedly that bakers and such should not be forced to “participate” in same-sex weddings, without unpacking what constitutes “participation.” By this reading, the store that rents the tux has participated, as has the rented limo. This seems a rather broad and vague standard to trigger constitutional concern.

But more troubling is the fact that Koppelman, as a straight man, seems willing to deem acceptable a greater amount of suffering by gay individuals than a member of the community probably would. Religious discrimination is a problem only if it exceeds some unspecified amount; gays should be prepared to take some as a matter of course because, well, that’s just what religions do. He is in fact far more concerned about protecting religious bakers and florists than gay customers, a stance understandable in that because he has himself never been the target of discrimination he doesn’t really understand what it does to the impacted person. He speaks in the abstract, but he doesn’t really understand. It is, in any event, disheartening to see him feel more empathy for the discriminating business than for the victim of discrimination.

Much of this makes little appearance in the final suggestion, and for that reason it can be entertained. To the extent, however, that the buildup to the conclusion is actually necessary to reach that end, then it too must fall. ( )