Constitutional Law, Free Speech, Media, Politics, Religion, Society

Cake Wars: Is the Indiana RFRA Coverage Skirting The Difficult Questions Of Conflict Between Anti-Discrimination Law and Free Exercise?

Wedding_cake_with_pillar_supports,_2009This 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?

622 thoughts on “Cake Wars: Is the Indiana RFRA Coverage Skirting The Difficult Questions Of Conflict Between Anti-Discrimination Law and Free Exercise?”

  1. http://youtu.be/IA_bBrB_TLY

    The rise of Christianist Fascism in the US. Dominionism. Some are so blinded by hatred of gay people they don’t see what is in front of their nose. Not all Christians are the same.

    1. Inga – not all gay people are the same, but some are member of the ‘gay mafia.’ Some straights are co-dependents of the ‘gay mafia.’

  2. bam bam – “Somehow, some way, if one is neither gay nor a proponent for legalizing same-sex marriages, then one’s only motivator is hatred for all gays, in general? For the sake of argument, let’s just say that what Ingannie claims is true and that there is no genuine concern for the health of gay men by certain individuals. If it that is so, then how about arguing that the health risks, posed to ALL of us, by the rampant spread of AIDS, especially within the gay community, is cause for alarm, regardless of one’s sexual orientation. As a health professional, according to your description, you, Ingannie, should known this all too well. AIDS knows no bounds, and those who do not participate in a dangerous and promiscuous lifestyle are still capable to contracting this disease through various means. A failure to recognize the impact that certain lifestyles pose to ALL of us within society is necessary, since we all will pay the price.”

    bam bam, I will play the role of issac on this one. When he/she is not being a bigot to Catholics his/her next favorite solution is tax’s. So in honor of him/her, I propose a “gay tax” since HIV and AIDS is a cost to society much like smoking. This money will be collected and used for all sorts of wonderful AIDS PSA’s much like the do now for smoking. That is if the money isn’t used for something else which the govt. never does.

  3. Again on this blog, people antagonistic and hateful of those who are religious attack with hateful words, and then complain that gays are somehow being attacked. It’s bullcrap.

    The purpose of the RFRA was to give religious people a means of defense in a court of law if they are sued for failing to take part in a ceremony that their religion forbids them from doing. That’s all it does. And that protection, allegedly guaranteed by the first amendment, comes only after a lawsuit has been brought.

    Yet somehow, even though there are exactly zero reports of a gay couple in Indiana being denied a wedding cake or some such event, the haters have turned this into a massive war against religion.

    The left’s words reveal what they truly are: narrow, fascistic, hateful bigots. They are the Jim Crows of modern times, the Bull Connors, the George Wallaces.

    “Coexist”, say the haters of religious people. “Diversity”, says the populace of the progg borg, all the while demanding that everyone think and act exactly as they dictate.

    One never hears about proggs protesting the Muslim shops or cake bakers or photographers who serve only man-woman weddings. And NEVER do they call out Muslims for killing gays just because they are gay. Never! Heck, the sainted Tim Cook cannot open new stores in Iran and Saudi Arabia fast enough!

    Yet not one progressive voice is raised about the gay genocide in Muslim nations. It’s almost as if the proggs view the Muslims as allies in the hatred of Christianity.

    May I should delete “almost” from that previous sentence.

    1. Michael Haz – does the Sainted Tim Cook have a store in Ferguson?

    2. Michael Haz

      Anyone who applauds Muslim countries for imprisoning, flogging, and executing gays is a psychopath, IMO.

      Apple CEO Tim Cook, a gay man who recently criticized Indiana’s passage of the RFRA law, is eagerly growing Apple’s business by expansion in Muslim countries that execute gay men. Such a hypocrite!

      Wow, I have been at a Maundy Thursday Church service worshiping the stripes and punishment our Savior received to redeem our sins. Okay. I see no one has learned yet to love the Lord above all else and their neighbors as themselves yet here. Or they would be flinging open the doors of their businesses and loving their enemies.

      The only way that you can expand your business globally is to move it everywhere. Perhaps Mr Cook is not perfect like the rest of the
      “Christians” on here since there is nothing he can do about gay execution but he can speak out here in America.

      Do we have to have a Fair Business Law along with a Fair Housing Law Federally since people don’t have any common sense about this?

      I seriously do not understand what is going on here. If one is Christ Centered and has Christ Consciousness, none of this would be an issue. It would be a non issue.

  5. Adlai Stevenson: “A free society is a society where it is safe to be unpopular.”

    The US is no longer a free society.
    Good work, Max, you gay fascist, you.

  6. happypappies,
    The way I see this LGBT issue about ‘religious freedoms’ is that these religious cries are but swatting at gnats… Oh look, their mouths are filled with camel.

  7. Waiting for FOXNews(R) to showcase the Muslim baker who thinks this law is a good idea and necessary to protect his deeply held beliefs…
    … Why is it always those Christians screaming into the wind?

  8. happypappies
    remember that device I told you about the other night?

    Who did Jesus say, “I will not serve you” to?

  9. happypappies,
    “Be the change that you wish to see in the world.”
    ― Mahatma Gandhi

  11. I posted Kieth Olbermann last night in the other thread… he cited Jackie Robinson’s experience.

    MLB Responds To Indiana’s ‘Religious Freedom’ Law
    http://www.huffingtonpost.com/2015/04/01/mlb-indiana-law_n_6987220.html

    As the sport of Jackie Robinson, Major League Baseball and its 30 Clubs stand united behind the principles of respect, inclusion and acceptance. Those values are fundamental to our game’s diverse players, employees and fans. The National Pastime is proudly a sport of inclusion. We will continue to closely track how this matter unfolds.

    So the WNBA, NBA, MLB, NASCAR, must be liberal lefty sellouts to
    the homo-sex-you-alls tyrannical agenda. Or some conspiracy theory like that.

    1. If I was an Atheist I would want protection from the Book of Genesis

      Genesis 31: 30 Now you have indeed gone away because you longed greatly for your father’s house; but why did you steal my gods?” 31 Then Jacob replied to Laban, “Because I was afraid, for I thought that you would take your daughters from me by force. 32 The one with whom you find your gods shall not live; in the presence of our kinsmen point out what is yours among my belongings and take it for yourself.” For Jacob did not know that Rachel had stolen them.

      (????????????????????????????????????????????????????????????)

    1. Max-1 – is christremists a word? When I read that I had visions of you tucked up in a cassock on popped on top the Xmas tree. 😉

  14. “Sorry, I don’t serve bacon eaters. It offends my religion.”
    #amIright?

    1. Max-1
      Be that self which one truly is.
      Soren Kierkegaard

      Yeah you are right

      ps. remember when you didn’t like me 😉

  16. Glad I missed this. These people are the most disgraceful wimpy aholes I have ever seen. How they can say this is not discrimination and not against the first amendment is beyond me. They are balkanizing religion all over again. The Church is supposed to be the whole world and Jesus is weeping because he sure isn’t mad at the butt hurt businessmen. He is getting ready to drink from his cup while everyone goes to sleep while he begs them to stay awake and keep him company.

    People have not learned a thing and they sit around and hate homosexuals and wait for Jesus to come and save them and burn the rest of the world in retribution. They are so deluded

    1. Thanks for your late entry…the hatred here has been toxic, disguised as religion or laughter at the expense of liberals. I suppose it’s the Christian way. I’ll never understand it.

      1. maxcat07

        This is what I get for being an existentialist You see – there are Liberals that would say I am full of it because I am a Christian Existentialist – But we think of the whole world as our Church and we are Christian Soldiers of the Cross.

        I didn’t see Jesus say anything about Homosexuals. He would not condemn a woman accused of Adultery brought forth by the Pharisees and blessed her. Yet he admonished men to gouge their eyes out or cut their arm off if they were tempted to look or touch another woman who was married.

        Now, I ask you, why is that?

        1. I don’t know. It’s certainly not out of the love Christianity claims. Pardon me for disagreeing, but I’m an atheist. I can’t see that religion has brought happiness to people, at least not the ones I see here. I get that feeling elsewhere as well. I suppose that I feel that if one needs the fear of hereafter to be good, one doesn’t need religion, one needs compassion. I’m sure I’ll get ridiculed here once again – it’s why I post here infrequently. I’m not masochistic enough to ask for the kind of crap that people post here, under the guise of wit, politics or plain meanness.

          1. maxcat07

            My life is about shaking things up and trying to make people happy. People claim to be what they are not in order to be accepted and out of fear of death and the unknown.

            I don’t believe that the Jews were the Chosen People, I believe they chose themselves. People have known about the “Unknowable known” since before time began. We have just begun to understand the mysteries of the Universe and the Galaxies are spiral shaped like the chromosomes that are our building blocks of life.

            I do believe that some of the Jews were divinely inspired such as in Isaiah and Jeremiah and I believe that Jesus was the Son of the Living God which is ineffable and unknowable and that it is a Paradox

            If I am capable of grasping God objectively, I do not believe, but precisely because I cannot do this I must believe.
            Soren Kierkegaard

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