Here’s the hypothetical: Shlomo Cohen has been blessed with a son, but he lives in San Francisco, where there is a vocal anti-circumcision movement. He emails his neighbor, a photographer, and asks him if he would photograph his son’s bris. The photographer responds, “Shlomo, no offense, but I think circumcision amounts to genital mutilation, and I can’t participate in that.” Next, he approaches his local organic/vegeterian caterer about catering the bris. The caterer says, “you know Shlomo, I’ve done brises in the past, but I’ve been reading some of the literature put out by the anti-circumcision people, and I think circumcisions cause unnecessary pain to baby boys. So I don’t do brises anymore.”
Shlomo files a complaint with San Francisco’s human rights commission, claiming that the photographer and the caterer are engaging in discrimination against him based on his Jewish ethnicity and religion. There is no evidence that either person turns down or otherwise mistreats Jewish clients or potential clients, and both deny they do so. Should Shlomo win his case?
To me, the answer is no, and pretty obviously so. Neither defending is discriminating against Shlomo because he’s Jewish, they are discriminating against him (if that’s what you want to call it) because they disagree with his particular actions. Indeed, I’d say they are no discriminating against Shlomo at all, they are discriminating against potential clients who want them to help celebrate something that violates their strongly held personal beliefs.
So, am I right? And if so, is there any sensible legal distinction that can be drawn between my hypothetical and the cases in the news in which a photographer and a baker were held to have discriminated against gays because they declined to provide commercial services on moral grounds for gay weddings, but apparently otherwise did not discriminate against gay customers?