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?
Well said Jill. On that reasonable people can agree.
Why can’t there be a law protecting bakers from writing or displaying words or images that they consider lewd, obscene, vulgar, hateful, etc. on cakes or whatever they sell to the general public? Why can’t they sell a generic cake to a gay couple, how is that violating their religious speech? It doesn’t.
DBQ, No you may not be forced to make a speech you do not want to make. I wrote above:
Similarly, as a member of the gay community, I should act as an American first and a gay person secondly. I must understand that this particular baker may not, by law, be forced to create speech which they do not wish to speak. I may ask for anything to be written on my cake, by as an American, the baker has a right to freedom of speech and I should not coerce that person into writing anything.
To ask to be served at a place of business is a neutral, secular right which may not be violated. To ask people to write or display things on my cake that they do not wish to do, is a violation of their rights.
Well Jim, perhaps you should petition the government to remove the Separtion Clause.
DBQ, Just as the small business person has the right to speak freely, so do others. Others may speak out against that small business. You cannot remove the right of free speech from the small business owner nor from those who oppose that business. Every citizen has that right.
No, we cannot be forced to be in another person’s religion. The state may not establish a religion that every person must follow. It is expressly forbidden by our Constitution. So for example, the Church of Satan has a law suit saying they have been forced to go along with a religion they do not practice. Here’s a link to their law suit:
http://www.salon.com/2014/07/28/satanists_want_hobby_lobby_style_religious_exemption_from_anti_choice_counseling_law/
The way out of this mess is to stand firm with the Constitution. No matter what your religion you are first and foremost a citizen of the US. As such, you may not discriminate against other people. If you do not want to uphold your own Constitution and the rule of law, you remove the protection of rights from both yourself and others. The history of those who place their religion as the law of the land is written in blood.
DBQ, Well written. People like Ingannie want to force their views on all of us. Then in some twisted logic when we say no thanks, it means we are the intolerant ones.
Taken holistically, I don’t think this episode in Indiana is truly about “gay rights” or religious freedom. It is much more about coercion to force state sponsored “acceptance” or “legitimization” of something many people disagree with.
In the view of the activists, you either fully capitulate or you perish. You are simply not allowed to exercise any discretion for any reason.
OOPS I do not agree with Jill’s statement that we cannot establish a religion.
The Government cannot establish a religion. I as an individual can do so. The People are free to establish a religion or to not participate in religion if they want to abstain.
To make laws that allow religion to discriminate against any minority group is essentially elevating religion to a state religion. That violates the Separation Clause. Gay people are a group of Americans, not a religion.
You may not discriminate, you must honor freedom of speech and you may not establish a religion.
Jill. I agree with your comment here. Let me ask you these two questions.
Can you or I be compelled to participate in someone else’s religion if we do not want to and do not believe in their religion. Can you be forced?
Can you be forced to make a speech that you do NOT want to make?
it is entirely possible that those of you who now speak out forcefully against SS marriage might run into a situation where a different church, one which speaks forcefully on behalf of SS marriage, could gain dominance in the society and force those who oppose it to shut up.
Jill,
You mean….sort of like….NOW. Where a small business is being forced to close because they had the temerity to actually state….when asked by a nosy newsperson…that they would not cater a particular event? Even though they serve everyone now but have a religious objection to another religious practice and would rather not participate…..OPT OUT as Jim says……they must be forced to participate or to shut up and be driven out of business.
Like that. Is this what we should fear. Well, guess what Jill. The time is NOW.
Jim22, The Constitution requires something of every person in the US. We don’t get to op-out of it. You may not discriminate, you must honor freedom of speech and you may not establish a religion. That is what it means to be an American. You honor the rule of law, no exceptions.
Jill, All Americans should allow others the freedom to opt out. Plain and simple. Anything else is just siding with a tyrant you like.
Paul C. Schulte – “Inga – are you OCD? You get on these memes and you cannot seem to get off them. Today it is Dominionism. Who the hell cares? Only you. I am more concerned that Harry Reid lied about Mitt Romney, knew he lied and is proud of it. I am more concerned the Lois Lerner is not going to be tried for contempt of Congress. I am more concerned that Hillary ran her State Department email from her basement and then wiped the disk. Does any of that bother you?”
Paul, We must remember Harry Reid the next time a lib brings up how the conservatives main goal was to make sure President Obama didn’t get re-elected. Win at all cost right liberals?
I just watched a film on the Rwandan genocide. It made some points I believe are worth considering here. One person who had done many hackings and killings on behalf of his ethnic group spoke about how he had forgotten that he was first a Rwandan. I think this type of forgetting is at work here in the US.
As another person mentioned above, the US constitution protects people from discrimination under the 14th amendment. The Constitution also forbids the establishment of religion and it protects freedom of speech. If we take our Constitution as the central element of being American, I think we can find a way out of this situation.
Although it may be the case that your particular religious group feels strongly against same sex marriage, it is worthwhile to understand that the right to speak against SS marriage is the result of secular protection of free speech under the US Constitution. Without that secular protection, it is entirely possible that those of you who now speak out forcefully against SS marriage might run into a situation where a different church, one which speaks forcefully on behalf of SS marriage, could gain dominance in the society and force those who oppose it to shut up. There really is no protection of religious freedom without secular law. Without secular law, the situation is simply one of “might makes right”. One religion has the power to impose its ideology on everyone as long as it maintains its political strangle hold on the society. It will continue to impose its will on every person until it is deposed by a stronger, more politically connected religion (and so on). We have seen this occur many times historically. The case given by another commenter about Christians being fed to the lions is true, as far as it goes. Once Christianity gained political power, they began feeding pagans to the lions.
Therefore, I think that every person, religious or not, would be helped to think of ourselves as Americans first and a member of another group secondly. So for example, while my church teaches me that SS marriage is wrong, my first obligation toward others comes from the Constitution of the United States. That Constitution does not allow me to discriminate against my fellow citizens.
Similarly, as a member of the gay community, I should act as an American first and a gay person secondly. I must understand that this particular baker may not, by law, be forced to create speech which they do not wish to speak. I may ask for anything to be written on my cake, by as an American, the baker has a right to freedom of speech and I should not coerce that person into writing anything.
To ask to be served at a place of business is a neutral, secular right which may not be violated. To ask people to write or display things on my cake that they do not wish to do, is a violation of their rights.
We should be Americans first. We should take pride in the fact that our nation offers the right of free speech, the right of non-discrimination and the demand that the state may not establish a religion. This protects all of us. We should think hard about what it means to put our particular group beyond secular law. It can and does lead to a very bad place.
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Told ya!!
🙂
http://www.vox.com/2015/3/31/8319493/indiana-rfra-lgbt
“Wilson of the University of Illinois doubts courts will rule in favor of anti-LGBT discrimination on religious grounds, but she acknowledged the Supreme Court’s Hobby Lobby decision “did kick this up to a whole new level of urgency.” She said that by protecting a major for-profit company (Hobby Lobby) that followed a majority religion (Christianity), the court interpreted the law in a way that goes far beyond protecting religious minorities like the Amish and Native Americans.
But the majority opinion in the case, written by Justice Samuel Alito, suggested religious beliefs can’t be used to justify workplace discrimination, although it only mentioned race as an example. “The principal dissent raises the possibility that discrimination in hiring, for example on the basis of race, might be cloaked as religious practice to escape legal sanction,” Alito wrote. “Our decision today provides no such shield. The Government has a compelling interest in providing an equal opportunity to participate in the workforce without regard to race, and prohibitions on racial discrimination are precisely tailored to achieve that critical goal.””
Civil rights will win over religious beliefs in the SCOTUS.
Of course, anyone w/ any intelligence understands this will be decided in the courts, eventually SCOTUS, and the First Amendment will prevail. This is just a freak show now. And, the freaks always love a freak show.
http://www.indystar.com/story/news/politics/2015/04/01/indiana-rfra-deal-sets-limited-protections-for-lgbt/70766920/
“Business, civic and sports leaders who have strongly called for a fix to the divisive “religious freedom” legislation flanked Indiana Republicans as they announced sexual orientation and gender identity will be explicitly protected in the new law.”