This week, I appeared on the CNN special addressing the Religious Freedom Restoration Act (RFRA) in Indiana. While I have been a long-standing supporter of same-sex marriage, I raised concerns over the dismissive treatment of religious concerns over the scope of anti-discrimination laws and how they may curtail free exercise of religion. I have previously written both columns and academic work on this collision between the two areas of law. In the program, I raised an example of the growing conflicts that we discussed earlier on this blog of a bakery that refused to make a cake deemed insulting to homosexuals while other bakers are objecting to symbols that they view as insulting to their religious views. This issue also came up with an advocate for LGBT rights on the show:
On the show, Sarah Warbelow, legal director of the Human Rights Campaign, appeared and gave an excellent case for those opposing this law. The HRC does very good legal work and has a distinguished history advocating LBGT rights. I however was most interested in one exchange with host Christ Cuomo:
Cuomo: Now, Sarah, you’re going to hear people flip this analogy on you and say, “Well, wait a minute, if this were a Jewish baker and some KKK couple came in and said, “We want you to make a cake.” If he said no, well than how would you feel about the situation?
Warbelow: Well, most of these business owners really are providing cakes across the board, but there are a select few who are choosing to discriminate. And there’s a huge difference between having to write something objectionable on a cake and being asked to provide a cake for a same sex couple.
The exchange was interesting between Warbelow seems to suggest that bakers should be able to refuse “something objectionable on a cake” but insists that bakers cannot refuse to make cakes that they find objectionable for same-sex couples. For some religious bakers, a cake with a same-sex image or language is objectionable.
My point is only that we are brushing aside a difficult and unresolved question of where to draw this line. We are all so eager to show (as I did above) that we support homosexual rights and/or same sex marriage, that there is little frank discussion of the obvious conflict with free exercise and free speech. There is also a limited discussion of the difference between certain forms of expressive arts like photography or baking as opposed to less expressions forms like diners or transportation businesses. For example, there does seem a meaningful distinction between serving a gay couple at a diner and a photographer who is asked to participate in a same-sex marriage and celebration in recording the event and arranging photo settings. That does not mean that we would not reach the same conclusion, but we are not having this debate.
I have struggled with this collision between anti-discrimination laws and free speech/free exercise for many years. I still remain uncertain on whether to draw this line between the two cakes that I described. We should have an answer for those citizens who are raising these concerns rather than dismiss them all as bigots. If the HRC is saying that bakers can refuse to make objectionable cakes, we should have a better understanding of when such objections are deemed legitimate and protected. Free speech and free exercise are rights that require bright line rules to avoid the chilling effect of possible criminal or civil liability. We need to be able to explain why the refusal to make one of these cakes is an unlawful form of bigotry and why the other is a permissible form of free speech.
What do you think?
Actually Annie, the Nazi were only targeting their political opponents… you know, gays (aka orientation) Jews (aka religion) and Gypsies (aka immigrants).
21st Century America isn’t much different.
In America our animus toward the immigrant (Mexican), the religion (Islam) and of course the gays (orientation) is only missing the edict to start the roundup. We think we’re more civilized yet hang onto the same principles of fear the other the Nazi saw the world through.
Ingannie
Max, such bigotry also was displayed in Nazi Germany, it started with laws discriminating against Jews, Gypsies, Jehovah Witnesses, mentally ill, and yes, gay people. “Juden raus”, lest we forget.
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Yes Annie,
The birth of the Pink Triangle, reclaimed from the ashes of the crematoriums by the brothers and sisters living today as memories of NEVER AGAIN.
Sachsenhausen concentration camp
http://en.wikipedia.org/wiki/Sachsenhausen_concentration_camp
http://upload.wikimedia.org/wikipedia/commons/thumb/7/72/Sachsenhausen2.jpg/300px-Sachsenhausen2.jpg
Full diapers… grown men that need a nap time.
http://3.bp.blogspot.com/-MGCAl8L6bXg/VRyBzpzWKPI/AAAAAAADV2E/_PW_RrDCcag/s1600/StarnesWalmart.jpg
http://4.bp.blogspot.com/-Z-GpSjOW6Ws/VRxhC_ZznfI/AAAAAAADV1Y/hXwIVeVrEFU/s1600/WalPerk3.jpg
Indiana GOP leader admits ‘No Gays Allowed’ sign would be legal in most of the state
http://big.assets.huffingtonpost.com/WorkplaceDiscrimination.png
QUESTION:
If the First Amendment includes the free exorcise of religion contained in it…
… Why do States need to carve out “special” rights on top of the ones religion already has?
p.s.
Is there a reason why Pence doesn’t want to protect attacks on LGBT in his State? LGBT living in his State are Hoosiers, too.
Squeeky
That is why gay men need special legal protections! (Supposedly)
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From YOU!
Sandi Hemming
incorrect. The Indiana law is NOT what Clinton signed and we all know it.
Clinton signed a law that protected an individual FROM Federal prosecution based on that individual’s religious beliefs.
Pence signed a law that protects a business from civil liability based on that businesses “personal” belief.
Big BIG difference.
A) a business is now treated as a person (singular being)
B) a business now has more protections than an individual (American citizen)
C) a business can have a “personal” belief NOW???
And this is why the Hobby Lobby case was wrong.
Corporations and businesses are NOT a person and should not be treated as such.
When “FREEDOM of RELIGION” imposes itself upon my Freedoms…
… Yes, Mr Turley, we should have that discussion about who’s crossing lines.
Pogo Hears a Who
Equality: the most dangerous word in the world.
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Then you’re saying equal rights aren’t good… even when it places you on a level field with those you hate. Sucks to hate… And THAT’S a choice.
It doesn’t surprise me that the IRS caved in to giving tax-exempt status to Scientology. The agency can royally screw with the average taxpayer, but it has never had much success going up against the mega-law firms that represent wealthy interests like Scientology, hedge funds, international corporations, etc. I would imagine that the top law firms hire the top students from the top law schools, essentially the top 1% of lawyers and pay them a fortune, while the IRS hires decent students from decent schools and pays them peanuts. So they lack the same skills and support, and are tired because they have to moonlight at Walmart bakery making gay wedding cakes, ha ha.
The “Church” hires PI’s to do surveillance of members who leave. That is another client I would decline to take.
Karen, Yes it is. They interview some former very high up members of the “church.” It is a compelling piece that lets the interviewees make the case. Tom Cruise comes off VERY bad. The most formidable person interviewed is IMO Paul Haggis. He is a brilliant screenwriter who wrote Million Dollar Baby, Crash and other superb screenplays. He is brutally honest about how he was duped and makes no excuses for being a member of the cult for 30 years. These are very intelligent people who just got hoodwinked. Cult leaders can dupe smart people, as well as not so smart folks.
Nick – is that the film “Going Clear”? I haven’t seen it yet but want to.
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In my home town we praise the Lard on Sunday and switch to Crisco on Monday. But there is a song which relates to the topic of the day here. It is to the tune of You’re A Jet, from the movie Westside Story and goes like this:
[music]
You are bent, you are bent, you are bent all the way!
From your first rear ender til your last dying day!
Now come all ye faithful and sing us your songs..
You feet smell like pigs feet and your songs are real long.
@ Sandi Hemming
“The ‘Indiana’ law is the same law Clinton signed when President and 19 other States have.”
There are important differences between Indiana’s statute (currently being revised), the federal law, and other states’ laws (see link below for details).
Indiana legislators are scrambling like rats under a spotlight to amend the bill that has blown up in their faces. Pence says he wants an acceptable revision on his desk by Friday.
“Gov. Pence and the state’s Republican leaders have faced a firestorm of criticisms from civil rights groups, top business executives and other government officials who fear the law will allow discrimination based on sexual orientation.
“Indianapolis [Republican] Mayor Greg Ballard has asked Pence and the Indiana General Assembly to either repeal RFRA or add explicit protections for sexual orientation and gender identity in state law, which exist in some other RFRA states. (Emphasis added)
” ‘Texas, for instance, expressly provides that the religious freedom law can’t be used as a defense against a civil rights ordinance,’ Groth said.
“For some, the absence of such protections in Indiana’s law is telling, given last year’s federal decisions that struck down Indiana’s ban on same-sex marriage.
“Frank Sullivan Jr., who served on the Indiana Supreme Court from 1993 to 2012, said RFRA was a ‘code for “We need to deny gay and lesbians the civil rights they are asserting.”
“He said that is obvious because the same people — including lawmakers and lobbyists — who were pushing for the failed constitutional ban on same-sex marriage are now behind the RFRA law. In his recollection of the past four decades, infringement of religious freedom has not been an issue in the state.
” ‘I view this as being a purely political issue,’ he said.
“Eric Miller, founder and executive director of the conservative advocacy group Advance America, has made statements that appear to support that claim.
” ‘Christian bakers, florists and photographers should not be punished for refusing to participate in a homosexual marriage!’ Miller said in the statement posted on his website. ‘A church should not be punished because they refuse to let the church be used for a homosexual wedding!’
“Miller, a strong supporter of RFRA and a failed ban on same-sex marriages, is one of those who were invited in the private signing ceremony of the bill in Pence’s office.
“Some supporters, however, dismiss the timing as coincidental and say the bill is long overdue in Indiana.
“There has been an ongoing effort for years to enact (RFRA) laws all over the country,” said Michael McConnell, a Stanford University law professor who supports RFRA.
“In response to what Pence referred to as a gross mischaracterization of the bill, he said during a news conference Tuesday that he wants to move legislation that makes it clear that RFRA does not give businesses the right to deny services to anyone. (Emphasis added)
“Details of the new language are still being worked out, Pence said.”
http://www.usatoday.com/story/news/nation/2015/03/31/indianas-rfra-differs-federal-version/70740366/
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Memories Pizza is the exact reason there is a need for protection of religious rights which were guaranteed by 1st Amendment.
@Ken Rogers
Right now I am watching the videos from Myles Powers debunking the House of Numbers and your position. I am on Part V of the series, and it is hilarious! This guys is tearing Leung to pieces. You need to watch the debunking videos and stop promulgating your theories because you are going to hurt someone if they listen to you. Here is a link to Part 1, and as each video gets to the end, it gives you the link to the next.
https://www.youtube.com/watch?v=3-XFeClWlWY
This is a thorough debunking of a theory as I have ever seen.
Squeeky Fromm
Girl Reporter