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.
Just try and let one of these bakers deny me… LOL!
Max-1
That would be the first case of Parthenogenesis- 😉
Pogo
Between “Adam” the first man and Lot how long of a time was there? Man invented time didn’t he? I don’t think that God did. I was just wondering because in my studies of Humanities there were “Marriages” of “Homosexuals”
Infant mortality being what it was back in the day would have put a premium on male/female copulation would it not? So, it only makes sense that the rules of society would have began to be set up the more agrarian people became.
Recently, it became known that in Africa as long ago that people were worshiping an entity that resembled a snake. Now, surely you are aware that in Genesis there were Teraphim or household gods still that Rachel stuffed under the ass – you think that strange? well – think again
Apart from the household gods already discussed, a different sort of teraphim is encountered in the Bible; their place is not in the home but in the sanctuary, and they were used by the Israelites in cultic ritual. Teraphim were employed in divination in the period of the Judges (Judg. 17:5; 18:17), like the divining ephod with which they are compared, and their use in divination is particularly obvious in the condemnation of teraphim in I Samuel 15:23, where the iniquity of teraphim is placed on a par with the sin of divination. Josiah, known for his far-reaching cultic reforms, did away with all the cultic objects of abominable idolatry, including teraphim (II Kings 23:24). Zechariah further rejects the teraphim by including them among the sources of false prediction (Zech. 10:2). Divination teraphim are assumed by Ezekiel to have been among the devices consulted by the king of Babylon (Ezek. 21:26).
http://www.jewishvirtuallibrary.org/jsource/judaica/ejud_0002_0019_0_19745.html
So – These are the advanced souls are they not? It must be in their chromosomal makeup lol
Anyway to get back to my point, this Oral tradition the Jews put together was not just the Old Testament, which is what we have. They have the
Important writings
Tanakh
The Jewish sacred text is the Tanakh, whose name is an acronym of Torah, Nebi’im and Ketuvim (Law, Prophets and Writings). It consists of the same books as the Christian Old Testament, although in a slightly different order and with other minor differences.
Torah
Although the word “Torah” is sometimes used to refer to the entire Tanakh or even the whole body of Jewish writings, it technically means the first five books of the Tanakh. These books are also known as the Five Books of Moses or the Pentateuch.
Talmud: The Oral Torah
Another important Jewish text is the Talmud, a collection of rabbinical writings that interpret, explain and apply the Torah scriptures. The Talmud was written between the second and fifth century CE, but Orthodox Jews believe it was revealed to Moses along with the Torah and preserved orally until it was written down. The Talmud is thus known as the “Oral Torah,” with the first five books of the Tanakh designated the “Written Torah.”
Midrash
A third group of Jewish literature is the Midrash, which is a large body of rabbinical material derived primary from sermons (the Hebrew word for “sermon” is d’rash). The primary collections of Midrash were compiled between the fourth and sixth centuries, but the midrashic form continues to the present day.
Responsa
A further set of Jewish writings is the responsa, a vast collection (thousands of volumes) of answers to specific questions on Jewish law. If the Talmud is a law book, the responsa are case law.
The Septuagint
Now
I wrote all this down because they have destroyed all of the evil snake gods and have written everything down and everyone is now scared to do anything and God kills people for the Jews right right.
😉
And this exchange with Jesus and the Temple elders (Pharisees) is what launches the Bible into Matt 23 where Jesus condemns them as vipers from hell. 13 But woe unto you, scribes and Pharisees, hypocrites! for ye shut up the kingdom of heaven against men: for ye neither go in yourselves, neither suffer ye them that are entering to go in. 15 Woe unto you, scribes and Pharisees, hypocrites! for ye compass sea and land to make one proselyte, and when he is made, ye make him twofold more the child of hell than yourselves. 31 Wherefore ye be witnesses unto yourselves, that ye are the children of them which killed the prophets. 32 Fill ye up then the measure of your fathers. 33 Ye serpents, ye generation of vipers, how can ye escape the damnation of hell?
Bible class over…
And yes, a lawyer tried to trick Jesus… figures. Ppppfffttt!
pogo,
Jesus spoke further in Matthew…
MATT22:35 Then one of them, which was a lawyer, asked him a question, tempting him, and saying,
36 Master, which is the great commandment in the law?
37 Jesus said unto him, Thou shalt love the Lord thy God with all thy heart, and with all thy soul, and with all thy mind.
38 This is the first and great commandment.
39 And the second is like unto it, Thou shalt love thy neighbour as thyself.
40 On these two commandments hang all the law and the prophets.
Ergo, if you judge, you’re not loving… of your brother but more so, God and His creation.
Pogo Hears a Who
When Jesus upended tables in the Temple because they desecrated it, was He loving his neighbor then?
= = =
Incorrect.
The “tables” were exchanges of offerings… buying admittance into the Temple. They were SELLING for a PROFIT which was being RENDERED unto the TEMPLE elders… they (Pharisees) even demanded Jesus buy.
MATT 22: 15 Then went the Pharisees, and took counsel how they might entangle him in his talk.
16 And they sent out unto him their disciples with the Herodians, saying, Master, we know that thou art true, and teachest the way of God in truth, neither carest thou for any man: for thou regardest not the person of men.
17 Tell us therefore, What thinkest thou? Is it lawful to give tribute unto Caesar, or not?
18 But Jesus perceived their wickedness, and said, Why tempt ye me, ye hypocrites?
19 Shew me the tribute money. And they brought unto him a penny.
20 And he saith unto them, Whose is this image and superscription?
21 They say unto him, Caesar’s. Then saith he unto them, Render therefore unto Caesar the things which are Caesar’s; and unto God the things that are God’s.
Ingannie
Well Max, they want to go back to Biblical days, let them use papyrus.
= = =
Sorry but I missed this good one. My job (yes I have one again) has be busy…
I don’t think Native Americans used papyrus… bark and smoke signals.
However with the drought alert in California, I don’t know how Carli is going to manage it. Oh, and did you know Jeb is “Hispanic”? The Christians, the Crazies and the Cooks! Ah… the GOP!
pogo
I much better appreciate you when you address the subject…
… Rather than attempt to dress me down. Heck, you didn’t even try to buy me dinner first!
Sorry, on the N. Dakota… the Gov has to ACT.
happypappies
The deeper question should be, what is pogo morally righteous on?
Max-1
He is certainly on something tonight. They all need de programming, The Pastor from First said there are only 6 verses in the entire Old Testament that refer to Homosexuality and they are all highly questionable. I posted it above. It’s a good read. I think it blew his mind or something idk. People call me hurtful names all the time and hurt my feelings and I just don’t know what to do anymore 😉 What must one do. They tell me that all Leftists are liars so I guess I need to take another Political Leanings test to find out what Label I am this time.
Once you label me you negate me.
Soren Kierkegaard
game over
Oh come on… we all know banana’s dipped in chocolate always taste yummy!
North Dakota Governor Issues Memo Barring Gay Discrimination
http://abcnews.go.com/US/wireStory/north-dakota-governor-issues-memo-barring-gay-discrimination-30123501
Well, if the Republicans in the State House are narrowly against anti-discrimination protections… The Governor has to. BTW, the State Senate passed it.
Because the buybull told us so…
… Animus based on Scripture, used to settle law?
Um, is America a theocracy? Where law is settled based on what the Holy Christian Bible said? And not the Koran? Or Hindu text? Or Buddhist?
Foundation for Moral Law Amicus Brief
http://www.scribd.com/doc/261057219/Foundation-for-Moral-Law-Amicus-Brief
In case the federal government in its infinite wisdom does decide to sponsor gay baker training, make that Fondant-Marzipan Plan – not Fondue.
Poor Pogo. He actually thinks the friendly ‘commies’ on the Turley blog have killed millions.
When did you lose your ability to discern sarcasm and derision? I thought your humorlessness was just a front – your hyperbole just the usual overblown propaganda. Damn if it isn’t real. I guess this means you really do think the lefties are out to kill you.
Try therapy..
@ P HaW
“ ‘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.”
Well, speaking for myself, and your paranoid self-victimization by the “leftist” hordes notwithstanding, I can unreservedly assure you that I have no desire to coerce you to do anything, let alone destroy your business and family.
You asserted that gay marriage performed “in church” is a “desecration” of heterosexual marriage and I asked you why you think so.
Your response pretty clearly indicates that thinking on your part has very little if anything to do with it.
I’m sincerely sorry that you’re in such an emotional state, but gay people are not going to quit getting married and compassionate heterosexual people are not going to quit marrying them.
Pogo, Leftist churches are like Air America and MSNBC. Failures.
“the letter was misspelled and in block letters and sent to 4 churches in our area”
Sorry, but fake until proven otherwise.
Pogo
Are you a Truther?
These were not death threats. They were to burn the Churches down that came right on the heels of the new decision change the wording in the sacrament if the Preacher was comfortable with it starting June 1.
It is absurd for you to believe that my Church is on the Left. You are not speaking from knowledge but from some kind of absurd propaganda. We have Doctors, Nurses and Lawyers that make up the bulk of the Congregation, oh, and Professors and they are horrified by this and if you, in fact, had read any of the information and followed up on who the members were and what their backgrounds were, it would be inconceivable that you would even make these absurd accusations.
Are you not aware that there is a large group of Skinheads and KKK Klansman in Central Missouri?
Name
Type
City
Aryan Strikeforce
Racist Skinhead
Aryan Terror Brigade
Racist Skinhead
Conservative Citizens Foundation Inc
White Nationalist
Saint Louis
Council of Conservative Citizens
White Nationalist
St. Louis
Council of Conservative Citizens
White Nationalist
St. Louis
Creativity Movement
Neo-Nazi
Faith Baptist Church and Ministry
Christian Identity
Houston
Invictus Books
General Hate
Wentzville
Israelite Church of God in Jesus Christ
Black Separatist
Kansas City
League of the South
Neo-Confederate
West Plains
Nation of Islam
Black Separatist
Kansas City
Nation of Islam
Black Separatist
St. Louis
National Socialist Movement
Neo-Nazi
Springfield
New Black Panther Party
Black Separatist
St. Louis
Southern National Congress
Neo-Confederate
West Plains
Supreme White Alliance
Racist Skinhead
Traditionalist American Knights of the Ku Klux Klan
Ku Klux Klan
Potosi
Watchmen Bible Study Group
Christian Identity
Wappapello
White Boy Society
White Nationalist
Hate Hate Hate
Oh, lookit one of them is Black –
Name
Type
City
Aryan Strikeforce
Racist Skinhead
Aryan Terror Brigade
Racist Skinhead
Conservative Citizens Foundation Inc
White Nationalist
Saint Louis
Council of Conservative Citizens
White Nationalist
St. Louis
Council of Conservative Citizens
White Nationalist
http://www.splcenter.org/hate-map#s=MO
That is, they offer cheap grace, salvation free of effort and without dying to Him.
They remember only that the Adultress was not stoned, but forget that He told her to go and sin no more.
“Yes, our membership has fallen off in recent years, way before we started being accepting of the Gays and so forth”
Leftist churches usually dwindle and then disappear althogether, becaus their leftism is a t odds with what God requires of us.
They mistake the supposed compassion of leftism for the Word, when it is just a lie, an immamentization of the eschaton, a bite of the apple, a hiss of the snake.
Pogo –
It isn’t a Leftist Church. We Worship Jesus Christ and the Trinity. The only churches that have rising numbers now days are Authoritarian Churches that are full of Fundamentalists and Televangelists. Everywhere in the United States the Churches have been Falling off since the 1980s so I don’t know where you have been. If you want to chase a Bugaboo with Homosexuality, go right ahead – be my guest. All Chuches that are Protestant are losing members to our disgusting secular worship of, Hollywood Culture, Monetary Society, and Pride of Position in Society.