Below is my Sunday column in the Washington Post on Indiana’s Religious Freedom Restoration Act (RFRA).
The column below raises the question of line drawing and states that I would prefer an absolute rule requiring all services. However, I could not support such a rule if we are going to strip protection from “wrong” views while allowing others to refuse on the ground that other symbols or language are clearly offensive. One variation on the “No Cake For You” approach below was suggested by a colleague who said that we could allow bakers and others to refuse any offensive language — religious or non-religious — unless the government could show that the baker would have sold the cake but for the status of the prospective buyer (e.g., gay or straight, Jewish or not, etc.). Thus, as long as the basis of the refusal was the actual language or symbols, it would be protected as an expressive act.
As I say in the column, I continue to struggle with drawing this line. None of the options are particularly satisfying. However, I do think that we have to have a real dialogue on this issue free of low-grade efforts to those on the other side as bigoted for wanting to discuss the range of free speech conflicts. The point is that, when dealing with the question of the right to refuse to create offensive symbols or language, one must address the fact that there are a wide array of such conflicts that can arise among different religious, cultural, or political groups. One does not have to agree with their speech to raise the question of their right to engage in such speech. Indeed, the first amendment is designed to protect unpopular speech. We do not need it to protect popular speech. Some may ultimately decided that no business can refuse any message under the “Let Them Eat Cake” approach despite rulings like Hobby Lobby and Citizens United. However, the first step is to have the debate, preferably free of personal attacks or attempts to silence those who would raise the speech of other unpopular or offensive groups.
Here is the column:
Within minutes of the signing of Indiana’s Religious Freedom Restoration Act (RFRA), a chorus of condemnation arose across the country that threw Indiana Governor Mike Pence and his colleagues back on their heels. The response was understandable, though somewhat belated. After all, both Presidents Bill Clinton and Barack Obama supported similar language that is found not only in federal law but the laws of 19 other states. While broader than most of these laws, the premise of the Indiana law was the same: citizens could raise religious beliefs as a defense to governmental obligations or prohibitions.
For those of us who have been warning for years about the collision of anti-discrimination laws and religious beliefs, the current controversy was a welcomed opportunity to have this long-avoided debate. Yet, we are still not having that debate. Instead, there is a collective agreement that discrimination is wrong without addressing the difficult questions of where to draw the line between the ban on discrimination and the right to free speech and free exercise. That includes the question of why only religious speech should be protected in such conflicts, as noted in the column. Yet, there is a reluctance of acknowledge good faith concerns among religious people in fear of being viewed as bigoted.
There has been a great deal of heated rhetoric in this discussion that avoids many of the more difficult questions. For example there is the common criticism that these bakers cannot assert their religious beliefs when it is really their business that is being required to take certain actions. However, last year, the Supreme Court in Burwell v. Hobby Lobby Stores, Inc. expressly found that such businesses do have religious rights (as they do speech rights, as recognized in Citizens United v. Federal Election Commission). In 2014, the Court ruled that “no conceivable definition of the term includes natural persons and nonprofit corporations, but not for-profit corporations.” Likewise, despite arguments that the federal RFRA is narrower because it references only conflicts with the government (and not other private parties in the Indiana law), some courts have ruled that it can be used in civil litigation.
As expected, the response of some commentators was to condemn even raising these question of free speech by saying that it saying that it equates gay couples to the KKK or Nazi sympathizers. Even when admitting that they do not have an answer for the free speech question, the attack is on the raising of such questions. There are legitimate concerns over allowing businesses to refuse to prepare products deemed offensive due to symbols or language, but we cannot really address these issues if people are denounced for just raising the conflicts and discussing conflicts. It results in a circular position that we can discuss the question of the protection of offensive speech but not if the question is offensive to discuss. This is an unfortunate trend where difficult questions are avoided by attacking those raising them as presumptive racists or homophobes etc for even raising different types of speech or views. It is a rather odd position to be placed in given my writings for decades supporting gay rights and same sex marriage. More importantly, when discussing the limits of free speech, one necessarily discusses the broad spectrum of free speech examples, including offensive speech. There is not an effort to equate gay marriage symbols or language with anti-Semitimic symbols or language. Obviously, as a supporter of same-sex marriage, I reject that notion. However, the point is that some people hold opposing views from my own. Some of those views I find deeply offensive. If we want to discuss the growing limitations on speech, we need to explore the spectrum of different forms of speech. That is what CNN did in the interview when raising the “KKK cake.” CNN was not saying that such a view is equally valid on the merits. It is ridiculous to say that, by discussing what different people consider offensive, we are saying that all of those views are valid or correct. It is not enough to say that such people are simply wrong or there is clearly a difference in the “real” offensiveness of the messages. Indeed, in some ways, such critics are answering the question by saying that some views are simply not viable because they are wrong. That is saying that society will draw the line on what speech can be the basis for refusing services and what cannot be such a basis.
After all the heated rhetoric over Indiana’s controversial religious freedom law, this rights debate could ultimately come down to a cake war. Just as diners were at the epicenter of the fight over racial desegregation, bakeries have become a flashpoint today.
Conservatives in Indiana and elsewhere have objected to bakers (and florists and photographers) being “forced by the government to participate in a homosexual wedding.” While those conservatives have been rightly ridiculed for failing to explain how the Indiana law as originally formulated would not license bigotry, critics can be equally chastised for failing to explain where to draw the line between religious freedom and discrimination. Asked on CNN this week whether a Jewish baker should have to make a cake for a KKK couple, Sarah Warbelow, legal director of the Human Rights Campaign, insisted that “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.”
Of course, for some religious bakers, a cake with language or an image celebrating same-sex marriage is objectionable. In other words, critics may be trying to have their cake and eat it, too.
Consider two cases that both happen to involve bakeries in or near Denver, Colo. In July 2012, David Mullins and Charlie Craig visited Masterpiece Cakeshop to order a wedding cake. Owner Jack Phillips said that, due to his Christian beliefs, he could not provide a cake for the celebration of a same-sex marriage. Colorado’s Civil Rights Commission ultimately ruled that the bakery broke the state’s anti-discrimination laws.
Now, the flip side. In March 2014, Christian customer Bill Jack asked Azucar Bakery to prepare two cakes in the shape of Bibles — with an X over the image of two men holding hands. Owner Marjorie Silva said she would make the cakes but refused to include what she found to be an offensive message. Jack filed a religious discrimination claim that’s now pending with the state’s civil rights division.
Two sets of cakes. Two different sentiments viewed as offensive. Can we compel the baker in one case and permit the other to refuse? And should the right to refuse be limited to religious objections? There are an array of messages that offend non-religious persons or violate non-religious values. Glibly saying that you cannot discriminate ignores legitimate questions of forced speech and forced participation.
I’ve struggled with the tension between anti-discrimination laws and free speech/free exercise for years, and I see three basic approaches to resolving it:
Let them eat cake. As one option, we could maintain a strict neutrality rule that requires businesses to serve all customers, even when they find customers or their requests (whether involving cakes or flowers or photographs) to be offensive. If you choose to go into a particular business, you lose the ability to withhold services based on the content of messages or the specific attributes of an event. That would mean a bakery couldn’t refuse to inscribe an anti-gay message on a cake — or a birthday message to someone named Adolf Hitler Campbell (which a New Jersey ShopRite said no to a few years ago). Under this approach, a cake would be viewed as a form of speech of the customer, not the baker.
No cake for you. The second possibility is an absolute discretionary rule that allows businesses to decline services or products when they substantially burden religious values. This could lead to a significant rollback of this country’s progress since desegregation. Even the sponsors of the Indiana law have indicated that they do not want such a broad rule.
Speech-free cake. A third option would be to allow a limited exception for expressive services or products. Under this approach, a bakery could not refuse to sell basic cakes to anyone but it could refuse to customize cakes with objectionable symbols or words. A florist could not refuse to supply standard flower arrangements from a pre-set menu but could object to designing and styling, say, the venue of a same-sex event. Likewise, photographers — whose work is inherently expressive, as they select particular moments to capture, frame compositions and create a product tailored to specific clients — could claim an expressive exception in declining to work at events they find offensive.
Frankly, none of these options is entirely satisfying, and all three would lead to tough cases on the margins. For instance, the uniformity and clarity of the “let them eat cake” approach is appealing. Yet it’s hard to imagine compelling Jewish bakers to make Nazi cakes or African American bakers to make KKK cakes. On the other hand, if we allow for expressive exceptions, we’ll have to determine whether or not a funeral director, say, is engaged in an expressive act.
If we are unwilling to impose an absolute rule of service regardless of content, then we need to be honest about our reservations and look more closely at how to allow people to opt out of certain expressive services. If people can decline offensive services, we need to focus our attention on defining those services that are inherently expressive and those that are not. We need to discuss not the central issue of discrimination but those cases on the margins that deal with legitimate speech. As Benjamin Franklin noted, “a great empire, like a great cake, is most easily diminished at the edges.”
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University.
I do not understand the requirement to “persuade” anyone, much as transgenders need only say the word and they are opposite of what their genetics and gentians declare.
“Who else have we destroyed? And how did we do it?”
Russia, China, Cuba, Venezuela, North Korea, Cambodia, Vietnam.
100 million dead from leftism in the 20th century alone.
Some of it was in the papers.
You did it by a utopian belief system akin to a religion.
Hey, All you commies out there! Is there a plan for destroying Pogo and all other believers out there?
I must have missed the handout.
Who else have we destroyed? And how did we do it?
I would not be surprised if the death threat was a false flag.
Always Wrong
Pogo the furry ferret made an issue of it. Annoy him for awhile with your endless whining.
“if you want to persuade anyone that there are legitimate reasons for opposing gay marriage, you’re going to have to present those reasons”
I am not trying to persuade anyone.
I am arguing that my religious and first amendment rights trump your right to coerce me to comply with participating in a gay marriage, lest you destroy my business and family.
But I am also convinced that leftists will try to destroy me and other believers anyway.
That is their history.
It’s who they are, it’s what they do.
Happy, those Christian churches that have adopted gay marriage have uniformly dwindled in membership.
I actually don’t believe the death threats. The left has invented so much of the news over the past 10 years, I believe nothing of what they claim.
Pogo
the letter was misspelled and in block letters and sent to 4 churches in our area, As the information posted, there are 6 allusions to homosexual relations in the Bible and most are non contextual
I suppose you are saying that our Church is not morally righteous because we recognize the fact that perhaps the Jews chose themselves and there was same sex marriage before the Jews as it is not always to produce children and is for love and companionship and adults.
As I mentioned in the above link which I am not really sure if you read, there are several other denominations and also the Reformed Jews who can marry the Homosexuals if they like as they don’t feel it is an abomination to choose love over discrimination.
Our Church is not on the Fringes or on the left because it took a brave new step in the right direction to be inclusive and whole in humanity and in being Christ Centered.
For you to imply that the Presbyterian Church and those like it are lying about threats and anyone on the Right is not is kind of hypocritical don’t you think?
It puts me in mind of all of those men holding the stones getting ready to cast them at the Adulteress as if that is not as evil of a sin as Homosexuality or something because we all know that it is a rampant sin among Pastors and it is forgiven.
Yes, our membership has fallen off in recent years, way before we started being accepting of the Gays and so forth, mostly about our disagreements with Israel’s treatment with Palestine and their Apartheid.
We have a Constitution and unfortunately for us, it is a Democracy and it goes 50 50 so when an Angela Davis or a Palestinian Issue comes up, since we are “Christian” and “forgiving” we will chose the losing horse because we are the Kings of Suffering and that is how we were taught by Christ. Was to Bear out Cross. Sadly, we do lose membership because these existential issues but we grow closer to God because of them and not farther away
I’m going to call this the “Financially Ruin Grandma and Make Her Lose Her House If She Doesn’t Want to Attend A Gay Wedding” movement.
@ P HaW
“The fact that you do not know the answer conforms (sic) my distrust.”
Wouldn’t it be rather presumptuous of me to think I know in advance of your telling me how you justify your assertion that gay marriage is a desecration of heterosexual marriage?
“Chesterton told of a fence that was erected and advised not tearing it down unless and until the reason why it stood was fully grasped.
Is heterosexual marriage the fence in your analogy? If so, who erected heterosexual marriage as a fence, and against what was it erected as a barrier?
“Christian marriage is about a traditional family to foster the next generation in faith.”
Do you really think that your appeal to tradition is responsive to my question regarding how you justify your assertion that gay marriage desecrates heterosexual marriage? “That’s how we’ve always done it” isn’t especially persuasive, particularly when it’s the case that heterosexual marriage can and will continue apace.
And what do you do with St. Paul’s, “There is neither Jew nor Greek, there is neither bond nor free, there is neither male nor female: for ye are all one in Christ Jesus.” (Galatians 3:28, KJV)?
“Gay marriage is therefore a misnomer, a contradiction, indeed, a mockery.
And a desecration when done in church.”
Not only are many gay people professing Christians, but many Christian church officials are openly gay, so it’s hardly the case that Christian religiosity is monopolized by heterosexuals.
Is it also a “desecration” in your mind for a gay minister to do Christenings or to administer Communion to heterosexual and/or gay communicants?
You’ve offered some pretty thin gruel, here. If you want to persuade anyone that there are legitimate reasons for opposing gay marriage, you’re going to have to present those reasons, or leave people with the impression that you’re simply prejudiced against gays.
“
Pogo
Didn’t you read my Letter before?
Several area churches have received threatening letters after a vote by the Presbyterian Church (U.S.A.) to approve same-sex marriage.
Westminster and First Presbyterian churches in Cape Girardeau and First Presbyterian in Jackson and Perryville, Missouri, received the letters, which say any church that accepts gay marriage “should be burned to the ground” and tells the churches, “you have been warned.”
Cpl. Darin Hickey, public information officer at the Cape Girardeau Police Department, said one of the Cape Girardeau churches brought the threat to the department’s attention.
Hickey said the department is increasing its patrols, not only of the churches that received the threat, but “we’re going to try to keep an extra eye on any church or other major buiding” that could face a threat.
He said anyone who sees anything suspicious should report it to police as soon as possible.
Hickey couldn’t recall having dealt with any similar threats in the past, but he said the department is starting with the normal investigations, such as tracking down postal information, then moving on to more scientific study of the letter itself.
Beyond that, Hickey said, the department will “utilize any federal agency we need to and their investigative techniques.”
He said the Cape Girardeau Police Department has worked on previous threats to buildings with agencies such as the Bureau of Alcohol, Tobacco, Firearms and Explosives and the SEMO Bomb Squad.
“Because we’re such a close-knit community … we can get them involved as little or as much as we need,” he said.
No suspects are in custody.
The letter, which opens with a verse from Leviticus, is printed in all capitals and contains several grammatical errors.
“How can your churches accept this action? … People u had better turn around or your soles are going down,” the letter reads.
The Rev. Kim L. Nelson, pastor of First Presbyterian Church in Cape Girardeau, stresses the change to the church’s constitution was not something that happened overnight.
“The change and the transformation of the constitution of our church goes through a long process,” Nelson said.
“And if people understand the United States form of government, it’s very similar. … This has been in dialog for transformation of our constitution on this since 1978.
“This wasn’t pushed down from above. We have a very representative form of government” in which clergy and lay people have equal representation when voting.
The policy was forwarded from the church’s general assembly June 21 and will take effect one year from that date.
“To be approved, they have to send it out to the 171 presbyteries,” Nelson said.
Every presbytery has voted or will vote on the issue; the local one, which meets five times a year, will vote at its April meeting.
Enough of the presbyteries have voted on the issue that a majority have approved it, so the local vote will not affect the outcome.
Still, Nelson said, the change will not go against civil law. If a church and pastor are in a state where same-sex marriage is not legal, then they are not authorized to perform the ceremony in that state.
“It’s still up to the local pastor to agree or disagree to do the wedding or not,” Nelson said, and it’s up to the local church governing board to approve whether to perform a wedding inside a church.
Nelson said though he “did not want to make a big deal about” the letter, he has addressed the issue with the congregation via email and in the church’s newsletter, and he plans to talk about it Sunday.
“If this is an issue for somebody to write a letter like this, or a threat, they’ve got some bigger issues in their life,” Nelson said, “and I just found myself praying for them.
“I would love — if this person wanted to have a conversation and be reasonable and not threatening — I would love to have a conversation with them.”
Nelson said six verses in the Bible speak on gay marriage, but often they are taken out of context.
“Translation is hard, and you’ve got to take it within context. And most people quote scripture either not quoting it correctly or surely out of context,” he said.
The Rev. Grant F.C. Gillard, pastor of First Presbyterian Church in Jackson, said he doesn’t necessarily plan on taking special precautions.
“We just kind of took [the threat] in stride,” he said.
Gillard said he has addressed the situation with his congregation.
“I let everybody know we received that letter. And I don’t know exactly what we’re going to do, because I think my ignorant suspicion is when people send letters like that, they’re not the ones you worry about. It’s the quiet people that are the ones that sneak up on you,” he said.
Nelson said he hopes the person behind the threats finds help.
“I hope, bottom line, this person finds a way to talk about issues in his or her life,” he said.
kwebster@semissourian.com
Westminster Presbyterian is my Church Pogo
Pogo Hears a Who
“Comparing RFRA laws to Jim Crow laws turns all of this on its head. Jim Crow laws forced tolerant businesses to be intolerant of blacks. No one, anywhere, is suggesting that people who want to do business with same-sex couples should be barred from doing so. The argument is whether the government should force a few ardent Christians (or Jews or Muslims) to participate in a ceremony that violates their faith.“
The final approval by a majority of the church’s 171 regional bodies, known as presbyteries, enshrines a change recommended last year by the church’s General Assembly. The vote amends the church’s constitution to broaden marriage from being between “a man and a woman” to “two people, traditionally a man and a woman.”
…
Other religious denominations that have officially decided to permit their clergy to perform same-sex marriages include the Episcopal Church, the United Church of Christ, the Quakers, the Unitarian Universalist Association of Churches and, in Judaism, the Reform and Conservative movements. The Evangelical Lutheran Church in America left it open for individual ministers to decide.
Thirty-seven states now have marriage equality, meaning that 13 states still dictate to churches how they can define marriage. As I’ve argued before (here and here), the First Amendment’s protection of religion is a double-edged sword for marriage equality opponents. Just as the government cannot – and should not – dictate to whom churches must give the sacrament of marriage, neither should it proscribe religious institutions in these matters.
http://www.usnews.com/opinion/blogs/robert-schlesinger/2015/03/18/presbyterians-ok-gay-marriage-now-government-should-get-out-of-the-way
Oh and Pogo – do they actually reject these kinds of people also according to their religion as they are mentioned in Leviticus 19
23“ ‘When you enter the land and plant any kind of fruit tree, regard its fruit as forbidden.b For three years you are to consider it forbiddenc ; it must not be eaten. 24In the fourth year all its fruit will be holy, an offering of praise to the Lord. 25But in the fifth year you may eat its fruit. In this way your harvest will be increased. I am the Lord your God.
26“ ‘Do not eat any meat with the blood still in it.
“ ‘Do not practice divination or seek omens.
27“ ‘Do not cut the hair at the sides of your head or clip off the edges of your beard.
28“ ‘Do not cut your bodies for the dead or put tattoo marks on yourselves. I am the Lord.
30“ ‘Observe my Sabbaths and have reverence for my sanctuary. I am the Lord.
31“ ‘Do not turn to mediums or seek out spiritists, for you will be defiled by them. I am the Lord your God.
32“ ‘Stand up in the presence of the aged, show respect for the elderly and revere your God. I am the Lord.
33“ ‘When a foreigner resides among you in your land, do not mistreat them. 34The foreigner residing among you must be treated as your native-born. Love them as yourself, for you were foreigners in Egypt. I am the Lord your God.
35“ ‘Do not use dishonest standards when measuring length, weight or quantity. 36Use honest scales and honest weights, an honest ephahd and an honest hin.e I am the Lord your God, who brought you out of Egypt.
37“ ‘Keep all my decrees and all my laws and follow them. I am the Lord.’ ”
lololol 😉
And poof…..
Three gone.
Never read. Never existed.
Perhaps it was Stalin that offended.
Paul Always Wrong
The rest of us were talking about tax exemptions for churches. You have taken a detour to university profitable sports programs and made assumptions regarding my position on their tax exempt status.
No doubt this will be a shock, but you are wrong about my position.
Wade “I will dodge any question you ask” Williams – we started talking about the religious freedom of cake baking. None of it had to do with the non-profit status of churches.
Rutgers professor Brittney Cooper on RFRA and the religious right:
”
This is their aim.
Am I discriminating against a Muslim if I am at SFO and the next cab in line is driven by a fellow with a filthy five feet of yardage wrapped around his head and his cab smells like a really dirty ashtray, and I don’t get in the cab? I don ‘t like cab windows you can’t see trough for the tar and nicotine deposit. But if nabbed,I sure I would be indicted for my aversion to smelly headgear, instead.
As for the cake business, I think what we have is an acute shortage of gay bakers. If a guy can be an interior decorator or a hairdresser, surely those artistic talents could be translated to building tall cakes and frosting them. We had the Marshall Plan to re-build Europe. What we need is some kind of federal Fondue-Marzipan Plan to train enough gay bakers to settle this once and for all. We could even use Ingannie’s plan in reverse. Force young gay men into the baking trade as she wishes to force everyone to sell cakes to everyone. A “statute”, I believe she called it.
Oh, and “fiver” – On TV, did you happen to catch a shot of the walls of the Indiana pizzeria, festooned with crosses and framed biblical quotes? An atheist sitting there waiting for his pizza could get his soul saved just by osmosis. It looked more like an Evangelical Gift Shop that happened to serve pizza. But it is their pizzeria and they can decorate it any way they want to. Well, they can until atheists get wind of it and complain it is offensive to them.The proprietors would never have made their beliefs known nation-wide if some over-zealous TV reporter had not goaded the young woman server into taking the bait of the loaded question of “Would you cater a gay wedding?” The TV reporter should have been ordered to undergo IQ testing and psychiatric evaluation for even framing such an idiotic question. Looks like the pizza folks hit the jackpot on the reporter’s quarter!
Some Gay people get it. Actually, I suspect a lot of them do:
http://www.theblaze.com/stories/2015/04/06/gay-woman-who-donated-20-to-christian-owned-indiana-pizzeria-reveals-why-she-took-bold-stand/
Squeeky Fromm
Girl Reporter
“They are non-profit. Pretty much guarantees that their financial returns won’t display much profit. No matter what their revenues.”
And that may be too little to remain open, once taxes take their cut.
They aren’t, most of them, rich.
They do lots of good works, hence their non-profit status.
In comparison to, say, NPR.
<I"Now tell me about the mega churches…
You know what I think of those churches, Pogo? They are the contemporary version of the money-changers.”
Perhaps.
But it’s also possible they are like the sinful woman who used a terribly expensive spikenard perfume oil in Jesus’ feet, and Judas, ever mindful of the purse (and his cut from it) complained it should have been used for the poor.
Jesus disagreed.
Maybe their churches are like that, despite their sins.
Free market is also hated by liberals. So, there’s that. This is an opportunity for gay groups to highlight gay friendly purveyors to weddings, and a list of businesses that are not friendly. But of course, this is not what this is all about. I grew up in an ethnic area that was run by WASPS. There were WASP attorneys, docs, etc. As time went on Italians, Poles, etc. became professionals. But before that, my Italian family knew the businesses that treated them w/ respect and the damn sure knew who didn’t. Word of mouth is the best way to convey good and bad biz practices.
This controversy is contrived and litigious. Who makes money from litigation?? This is not a about gay rights. It is about religious hatred. We have several threads that are Exhibits I, 2 and 3.
Nick – thank goodness I wasn’t here during the Thunderdome era. Although maybe we could designate two champions, one for each side of the business owners’ rights issue, and let them have at it, figuratively speaking.
USN420:
We’re small business owners, too. Like you, we have never declined a job based on race, creed, ethnicity, or sexual orientation, and we never would. But we, too, have turned down jobs that exceed our aggravation limit. We won’t do repeat business, for example, with people who took 9 months to pay us.
I, too, wish we had more market freedom. On the one hand, I would never want to return to the days when blacks or gays could be refused food in a restaurant. On the other, could that really happen or wouldn’t public backlash prevent it? I would never want to return to those times, but I also want business owners to have a say in what jobs they take. It’s tricky, made exponentially more so by the segment of gay marriage supporters who can think of nothing else to do but attack people who want to talk about where we should draw the line.