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.
So basically the gays who support the pizzeria’s right tonlive according to their own beliefs are devalued because they dissent from “the oarty line.” Now, there’s adding to the discussion.
Most people have members of their family who are gay, oppose gay marriage, or have other conflicts. There needs to be a reasonable solution that does not involve making Grandma live in a cardboard box unless she bakes a cake for a gay wedding, or making gay Rick eat outside in the rain because no one will serve him.
@KarenS
if you go to this link, you can actually listen to an interview with the gay woman. It starts around 16:55, and she does not sound at all like she has been “programmed” by anybody. I suspect that she is lot many people in various movements whose desires and goals differ significantly from the goals of the movement’s leadership.
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
Resistance is futile.
Paul C. Schulte
“… if they kill Pogo and his family why would he care if they ruined his business? However, since I know what Pogo’s business is, I know the leftest communists are already trying to ruin it, then they will kill him and his wife.”
—–
Are “leftest communists” those who have evilly achieved the highest level of leftness possible on the Evil/Left-Righteous/Right political spectrum”?
Is there any way to defend oneself against them, or is resistance futile?
This is obviously a time-sensitive issue, so please don’t dawdle in responding.
Karen, I would bet that there are far more homosexuals that feel like Max, than those that allow themselves to be used by Breitbart.
Inga – I would bet the that activities of gays like Max-1 are within a certain age range. After that they are going to Brietbart.
Happy,
Well thank you for seeing God in me too. If you listen to some others folks they have us painted as heathens and pagans, lol!
Perspectives from the gay community who don’t appreciate being hijacked by hateful, intolerant people. Note the comment how they want to live their lives according to their beliefs, and allow others to do the same, even those they disagree with, a message of tolerance.
http://www.breitbart.com/big-government/2015/04/07/gay-woman-apologizes-to-christian-owned-indiana-pizzeria-sends-donation/
Actually the Pharmacist CAN refuse to carry contraceptives in his store. Just like they can decide not to carry cigarettes, alcohol or Easter Peeps (the b#stds!) They just can’t blanket refuse to serve you. But they can chose what to carry in their store.
You can get those items that they are not carrying elsewhere.
DBQ – who would refuse to carry Peeps? That is unpatriotic.
Wade. All of those examples are considered “public accommodations” and would be precluded from refusing service.
A bakery can also be considered a public accommodation as far as the general goods and services. Those things that are offered as a daily part of doing business and the subjects under discussion have not discriminated against anyone in their day to day business
Other items are specialty order or by commission. A bakery doesn’t have an inventory of ready made wedding cakes like they would dozens of donuts. It has to be a special order item. Same thing with floral arrangements and the photographer certainly doesn’t have a generic spread of the wedding event in question. It has to be created. By commission.
Special commission items are not necessarily for public accommodation. Specialty items are not in inventory and have to be created as a one-off type of item. The crafter can refuse to make the cake/photo etc for a lot of reasons. They don’t have to do business with you if it isn’t a public accommodation.
One reason to refuse the commission would be perhaps it is too large of a project and would not be cost effective for the crafter to make. Too time consuming and a detriment to the daily activities of the business. Another would be that the commission is beyond the scope of the abilities of the crafter or he/she doesn’t feel comfortable about making the item due to skill level. Another would be that ingredients or materials are too difficult to obtain or too hard to work with.
You are not obligated to take on each and every special request or commission.
Lots of reasons. The reason that everyone is objecting to is the honest reason that the commission or special order is on that would violate their religious tenets. The business owner does not give up his or her First Amendment protections by just going into business.
Wadewilliams
“So if you’re a teacher, do you refuse to teach the child who is gay?”
No since you are public employee
“So if you’re a pediatrician, do you refuse to treat the child who is gay?”
Apparently you can do this already.
“So if you’re a grocer, do you refuse to sell to the couple who are gay?”
Yes
“So if you’re a pharmacist, do you refuse to sell contraception?”
Yes
“So if you’re a landlord, do you refuse to rent to a gay couple?”
Yes (Here’s one for you. Should a female rap victim who is a landlord have to rent to a “rehabbed” rapist”?)
“So if you’re a restauranteur, do you refuse to serve a gay couple?”
Yes
Private vs. public. It’s pretty simple. Can you answer mine? Would you force a Catholic carpenter to make tables used for abortions?
@WadWilliams
In addressing your question at 3:23PM April 7, —I examined your response in accordance with the Squeeky Gay Idiot Test, which I repeat here to save you from having to go back and find it:
In examining your response, which was:
I find that your response falls in line with No.3 in the Gay Idiot Test, which is:
(3) Simply repeat your previous statement, without addressing the points raised by the bakers’ advocate that there is a difference in the nature of the transactions;
Sooo, I guess you see where this is leading. . . 🙂
Squeeky Fromm
Girl Reporter
Wadewilliams – “Jim22
You’re a fireman, right?
So if there is a fire at a clinic that performs abortions, do you refuse to fight the fire?”
Wade, Yes I am. and yes I would fight that fire. The fire company is part of the public. It is not private. I can answer the question.
Can you answer, would you force a Catholic carpenter to make tables used for abortions?
As a side note, I am against abortion, but don’t believe it should be illegal. I just wish people would choose no to do it. Same for gay marriage.
@Jim22
Yes, it is hilarious! Then you have WadWilliams running around in a dither, throwing his hands up, and foaming at the mouth, over the Hobby Lobby case which was pretty tame. All it said was, “Are there birth control pills that are not potential abortifacients??? Yes. Then STFU and use those.”
Squeeky Fromm
Girl Reporter
So if you’re a teacher, do you refuse to teach the child who is gay?
So if you’re a pediatrician, do you refuse to treat the child who is gay?
So if you’re a grocer, do you refuse to sell to the couple who are gay?
So if you’re a pharmacist, do you refuse to sell contraception?
So if you’re a landlord, do you refuse to rent to a gay couple?
So if you’re a restauranteur, do you refuse to serve a gay couple?
Damn, Justice Ginsberg was so very right.
Hobby Lobby is an ungodly nightmare.
Jim22
You’re a fireman, right?
So if there is a fire at a clinic that performs abortions, do you refuse to fight the fire?
I am sure if there was a fire at an abortion clinic the doctors and nurses would all run in to save the babies.
You in business that makes wedding cakes?
Fine. You make wedding cakes for everyone or you will not be shielded from the possibility of being sued for discrimination.
And the cake is not part of the ceremony. The cake is not trundled down the aisle along with the flower girls and the bride.
Max, Ok, how about a Catholic carpenter being forced to make lab tables used for abortions? Would you force that?
Hi Jim22
I guess that is kind of like the Lesbian Nurse who has to take care of the Skinhead with swastikas all over him right?
Jim22 – thought abortion tables were made from stainless steel. Easy to wipe down and keep sterile.
Squeeky Fromm, Girl Reporter
“@WadWilliams
Huh??? You said, “The Wing Nuts excel in manufacturing non-existent terrors.”????
Uh, er, uh, like “OMG, gay people won’t be able to buy wedding cakes!!! WTF??? The pizza place theoretically wouldn’t cater a gay wedding!!! Oh, let’s boycott Indiana!!! Boycott the Final Four!!! Quick, somebody get Tim Cook out of the I-5 Rest Stop bathroom to make a proclamation!”
You mean that kind of hysteria???
Squeeky Fromm
Girl Reporter”
Squeeky, You beat me to it. Amazing isn’t it how they don’t see their own irony?
Ok Joyce Kilmer.
I’ll specify: … adept at manufacturing Terror Cakes