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?
“it gave the baker the right to discriminate by not selling them a wedding cake at all.”
But you’re okay with giving the baker the right to discriminate by not decorating the wedding cake at all.
Again, that makes sense exactly how?
I see.
So you want to use the police to enforce making them create generic cakes for gay weddings, but free not to fully decorate it with gay ephemera?
That is, you’d put them in jail for failing to make a gay couple a wordless undecorated cake, but not for making a decorated cake?
Howe does that make any sense?
Well, the question is whether or not this is a victory or defeat for America. That kind of depends on where you are coming from. If you believe in politics by intimidation (pretty much Democrats), then Indiana caving is a great victory,. If you believe in government by reason, morality, logic, right and wrong (pretty much Republicans and libertarians) then this is a great defeat.
Paraphrasing Harry Reid, well the Gaystapo won didn’t they!
Squeeky Fromm
Girl Reporter
Nice try at rewriting the law Pogo, it gave the baker the right to discriminate by not selling them a wedding cake at all.
No dear Pogo. RFRA allows the baker to be free from lawsuit for not serving the gay couple by baking even a GENERIC wedding cake.
“Pass a statute saying that bakers don’t need to put on the cake topper. Or display images or words that are objectionable to them.”
Oh, you mean pass RFRA.
The very law you were hysterically screaming ‘bigot’ at.
Genius.
@ Jim
I put “art” into the mix because “art” has already been inserted there to justify offending Christians. The Piss Christ or the Cow Poop Madonna. Because those are considered works of art (not by me) and therefore speech, they are protected under the 1st Amendment. See…… It is OK to offend Christians with your artistic free speech.
In order to justify the non providing of cakes and other works of “art” that are going to be used in a religious ceremony that is offensive. Then the converse of the Piss Christ should be used. A wedding cake which is a work of art (which takes years of practice to be able to accomplish), even without the cheesy figures on top, is de facto speech. Speech celebrating the event. Compelling speech to be cone by Christians (or any group) that they find offensive is just as much a violation of the 1st Amendment as forbidding offensive speech.
The freedom of speech and the freedom of religion isn’t just a one way street where Christians have to sit and take it.
DBQ – art is really hard to define. Frank Lloyd Wright said “If they buy it, it’s art.” And taste in art is very personal and changes with time and experience. And you are right, some people think some art is supposed to be offensive. Personally, I find the people who craft those works (I cannot call it art) offensive.
From Instapundit comment section:
“Harcourt:
“”The list of businesses, governments, and famous people boycotting the state of Indiana over Gov. Mike Pence’s decision to sign the Religious Freedom Restoration Act is still growing,” Robby Soave writes. “Now even Nick Offerman the comedian and actor who played libertarian hero Ron Swanson on NBC’s Parks and Recreation has cancelled his upcoming Indiana comedy tour dates.””
I don’t see how a baker refusing to cater a gay wedding differs from a comedian refusing to book dates in Indiana. Both are refusing to do business with others on grounds of conscience. Why is one justifiable and the other not?”
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Why is one justifiable and the other not?
Steg – so those comedy dates will not be filled by anyone else? They will just go dark? Right!!!!!!
DBQ and Jill, TO come full circle, it has been pointed out that certain professions can already discriminate (lawyers, doctors P.I.’s etc…). So although lawyers can be viewed as unAmerican (a joke here) should they be forced to no opt out? Why do some get ot opt out and others don’t? DBQ, puts “art” into the mix but I disagree with that since art just opens another can of worms. Who gets to decide what’s art? How about we let everyone opt out if they want and let the free market handle the jerks of the world. Why does this scare so many?
They shouldn’t have to put the two figures on the cake. They can bake it, frost it, put pretty flowers on it an voila! It’s a wedding cake. Pass a statute saying that bakers don’t need to put on the cake topper. Or display images or words that are objectionable to them. So simple, so equitable. Sheesh, all that fighting for a simple solution.
To some religious people two men or two woman on a cake are lewd and sinful images. Just because you don’t think that is the case does not mean you get to decide for everyone.
But that is not what the gay agenda wants. They want compliance by everyone and will not “tolerate” anyone who does not believe what they believe. They are not in favor of tolerance. They are in favor of coercion.
You have the right to ask and your religious institution’s functionary has the right to refuse your request. You have the right to protest that refusal but you may not compel the functionary’s speech. That’s what our Constitution says.
Not exactly.
First Amendment: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
About the establishment clause: https://www.law.cornell.edu/wex/establishment_clause
You do NOT have the right to compel private citizens to participate in religious practices or services that they do not want to or which are against their religion.
Forcing the baking of a WEDDING cake, as opposed to a generic cake with no religious significance, is a violation of the free exercise of religion. In addition it is compelling speech. A work of art is de facto speech. This is why the Piss Christ, as offensive as it is to Christians, is allowed to exist. Speech.
Michael, The right of a business to refuse service to a drunk person at a bar is a health and legal matter. For failure to wear shoes and a shirt is sometimes a health matter and often for reasons that a business wants people to be dressed in a way that comports with their store’s brand or image. These rules apply to every person, of any color, gender, religion, class etc. The rules are not– if you are drunk and black you will not be allowed in the bar or if you are a gay man without shirts and shoes you will not be allowed in the store.
The Constitution’s 14th amendment protects all of us from discrimination and we need to stand up for our Constitution and each other. We have pretty much deserted the rule of law as citizens. We are really stupid for doing that. That only leaves our society with the idea of “might makes right”. As long as you are on the currently “winning” side, you’ll be safe. Everyone else can suffer. That is such a ugly way to think of other people.
Stand up for the rule of law! For the love of your god, please do this. We owe it to each other.
You have the right to ask and your religious institution’s functionary has the right to refuse your request. You have the right to protest that refusal but you may not compel the functionary’s speech. That’s what our Constitution says.
We’ve ALL said that no one should be forced to write or display images on a cake if it’s against their beliefs. Love the backtracking now, lol.
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on 1, April 1, 2015 at 11:00 amIngannie
“Why not make a law that prohibits forcing merchants from providing a cake, or whatever that has lewd images or hateful speech on it? Being forced to do so would be a real personal affront…”
Of course they will lie about it but that is the plan. Just as they said that gay marriage will never effect you but now they will force you to join in their celebration or they will destroy you and your business. When they can enforce thought crimes they will move on to demanding that Churches offer the sacrament of marriage in violation of their doctrines. The fact that some Churches will welcome Same Sex couple will not matter just as the fact that other bakeries or photographers will be happy to handle a same sex marriage does not matter as they drive to destroy bakers and pizza parlors. They will demand that everyone join in their celebrations regardless of your principles, conscience or religious beliefs.
Very good Jill. It sounds like we are in total agreement here.
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.
This is something that I have stated several times in this thread. If you are a baker (or other place of business) you have to serve the general public. Bake and sell the generic cake. Inga obviously doesn’t read or can’t understand plain English as I and others have written. The serving of a hamburger, pizza, cake, selling a dress whatever is a service open to the general public and unless the patron is doing something unsanitary or willfully trying to damage your business, they should be served.
Asking people to display things or say things that they do not wish to do or which are against their religious principles, such as creating a wedding cake for a gay marriage, is a violation of their rights.
Once again…..since few people seem to actually read the comments before jumping in. …...I have no problems with people who want to get married or same sex marriages. Personally, I could NOT care less. On the list of things that concern me, it is as close to the bottom as can be. What I do care about is the forcing of others to participate in the ceremony and forcing those people to violate their religion. I also care about the Gestapo tactics that the gay marriage supporters have taken to using lately by trying to destroy those they disagree with. Instead of reason and trying to understand the position of others they seek to destroy.
You ask a lot.
You’re probably not asking me, but my answer would be NO.
Of course they believe that Haz. That is their end game.
Apologies. That should read: Do you believe that a single-sex couple has the right, under your constitution first theory, to demand that the pastor, minister, rabbi or imam of a religious institution perform a wedding ceremony, even if a wedding ceremony is prohibited by the tenets of that particular religion?
To ask to be served at a place of business is a neutral, secular right which may not be violated.
It can be violated now. A person who is obviously drunk can be denied service at a bar. A person who is not observing the dress code, or is in violation of laws requiring clothing an footwear in restaurants can be denied service. I think we agree on those exceptions.
What I want to ask, if you don’t mind is this: Do you believe that a single-sex couple has the right, under your constitution first theory, to demand that the pastor, minister, rabbi or imam of a religious institution to demand and be provided a wedding ceremony?