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.
“If minor variations in a liturgy could create a congregational schism…”
Hilarious.
You do not know much about church history, that much is apparent.
“… that someone with a particularly rigid personality standing in fear of Divine punishment would go to Defcon 5 over the performing of same-sex marriages in a church.”
Jesus went Defcon 5 over the performing of simple financial transactions in a temple.
What a rigid personality!
@ happypappies
“People that are on the right listen to authoritarian influences because that is what they do. They are often OCD and it puts the building blocks in their lives to hold things together and the rules are very necessary for them.”
“They become dangerous when they turn around and hammer them on to those of us that do not operate by a Authoritarian Code except God. Their hypocrisies are dangerous because they are blind to them as they listen only to their leaders, Professors and Preachers. Any original thinking is lost in translation.”
I’ve found psychiatrist Scott Peck several cuts above the average psychiatrist, who is happy to push psychotropic drugs down their patients’ throats, with scant regard for the consequences, which are all too often suicidal and/or homicidal.
In the review below, Peck’s views on spiritual development reflect important points which you make in your post above:
“Psychiatrist M. Scott Peck first alluded to the spiritual growth stages in his first book, The Road Less Traveled: A New Psychology of Love, Traditional Values and Spiritual Growth. However, he did not enumerate stages at that point. He only explained how, in his practice of psychiatry, sometimes a particular person would require assistance working their way out of religious belief while the next person might require help moving toward faith. The explanation given for this phenomenon was that of spiritual growth.
“Apparently, people still in what we are calling the ‘Faithful’ stage on this site might need help learning to question the religion that was handed to them at birth. It seems Peck had figured out that blind acceptance without doing the work of personalizing faith was not a mature way to approach religion. In the long run, this led people to shirk assuming responsibility for their beliefs. Going through the stage of questioning was important and healthier than just blindly accepting.
“But other people who were already in the questioning stage (Rational stage in the terminology of this site) often seemed to need help moving toward some type of spiritual faith. In this case, the route of spiritual growth would be to accept faith but this post-questioning faith would be very different from the type of faith typical of the ‘Faithful.’
“I think Peck gave the most complete description of his spiritual growth stages in The Different Drum: Community Making and Peace. (New York: Touchstone. 1987.)
“Stage I: Chaotic, antisocial.
“A stage of undeveloped spirituality, people in Stage I of spiritual growth are manipulative and self-serving. Though they may pretend or even think they are loving toward others, they really don’t care about anyone but themselves. There are no principles (such as truth or love) important enough to these people to override their own desires.
“Because they don’t allow any principles to govern their existence, there is a lack of integrity to these people and a chaos to their existence. Personally, I find the term ‘anti-social’ most misleading here. Some of these people are very engaging and personable and can really fool you. Some even rise to positions of considerable power, such as presidents.
“This stage is equivalent to the Lawless stage as described on this site.
Stage II: Formal, institutional.
“In order to save themselves from the chaos of the prior stage, when someone converts from Stage I to Stage II, he submits himself to an institution of some sort for ‘governance.’ This could be a church, or it could be the military or even a prison. Nonetheless, to this person the rules are very important. And the structure provided by an institution is very important in providing order in this person’s world. (My emphasis)
“In religion, people in Stage II will mainly view their God as an external, transcendent Being. They generally need a legalistic God, who will punish misdeeds, to keep them from chaotic behavior. (My emphasis)
A principle value for people in Stage II is stability. And they perceive external forms of society or their religion as providing this stability. Thus they can become very upset if minor changes occur in the rituals at church, for example. This is where Peck uses the word ‘formal’ – this person sees their church as being about the outer forms, not about the interior meanings.” (My emphasis)
http://www.exploring-spiritual-development.com/SpiritualGrowthandMScottPeck.html
I recently read about an outright schism that developed between congregants in one Episcopal church who wanted to alternate between two liturgies, slightly different, from week to week, and those who insisted on exactly the same liturgy every Sunday.
If minor variations in a liturgy could create a congregational schism, it’s quite understandable that someone with a particularly rigid personality standing in fear of Divine punishment would go to Defcon 5 over the performing of same-sex marriages in a church.
It behooves those of us who aren’t burdened by a fear of homosexuality or of a wrathful, punitive God to try to understand our brothers and sisters who are so burdened, rather than being cavalierly dismissive of their anxiety.
Instapundit, lol.
…it’s why I decry fundamentalist liberals.
“Fundamentalists think they have the market on the “right thing”. They don’t.”
I agree; it’s why decry fundamentalist liberals.
Very true, Squeeky.
I feel about gay marriage the way Instapundit feels about government subsidization of the poor.
Fundamentalists think they have the market on the “right thing”. They don’t.
@Pogo
My father said that lousy, worthless young men who had been through basic training both loved (in a platonic sense) and respected their Drill Instructors when it was all over. He said it was because the DI’s expected something from them. I think the same is true of church. Somewhere inside, people know when they are being allowed to slack off. A revival preacher once said, “I am not here to help you FEEL good about yourself- – – I am here to help you BE good, and to do the right things.”
Squeeky Fromm
Girl Reporter
Pogo
Sessions vote on Gays getting married in 2010 what was it 79 21 or something idk.
Well, okay then. did I say it was close or something. I was wrong. Sorry. It must have been the Israeli Boycott thing that was close. Yes g- that was it 310-303
http://www.religionnews.com/2014/06/20/prebyteriansdivestment/
Sorry my bad
DBQ,
Yes, I know about the pharmacy denial of certain kinds of contraception or perhaps any kind of contraception. And I believe that decision is very wrong as it allows the pharmacist to determine a woman’s choice of contraception. Their religious beliefs should not trump a woman’s choice.
And I thought the workaround was unfair and unworkable for women in small towns who may not have access to another pharmacy that carries her choice.
happypappies
“You are criticizing Jesus now. Because he showed love to his people and saw Satan in the Temple?
They were a den of thieves and iniquity. What would you have him do – be like your Pat Robinson and Pander to Hypocrisy?
This doesn’t make any sense.
I wrote the same as you: Jesus showed love by upending the tables, ridding the temple of desecrators.
Gay marriage is a similar desecration.
“t 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 ”
People tend to think of the Presbyterian church as confused, liberal, and dying, largely because they make headlines that confirm these perceptions.
Mainline Protestantism, at least in its official curia, has been liberal for nearly 100 years.
…Liberalizing churches don’t attract young people, who, even if themselves liberal, tend to flock to churches they respect for not pandering to them. The same is true for racial minorities, who largely avoid liberal Mainline Protestantism in favor of ethnic or Evangelical churches.
Essentially, the PCUSA, by its votes this week, resolved to become even smaller, older, and whiter, creating a future that depends more and more on endowments instead of live people.
Pogo
Regarding your 3:51 comment on Jesus upending the Tables. I notice you did not answer what I said to you about that. Do I take that as an assent that he was angry that his Church was being desecrated by the Money Changers similar to the Mega Churches now keeping vast sums of money from the unsuspecting public they are lying to?
Regard the desecration of marriage – maybe in Levitican and Pat Robinson’s eyes but never in Jesus eyes. Idols were carried around pornography is alive and thriving and OK with you I am sure. and I am sure Jesus thinks its fine. Why don’t you go ask him. I am snacking on my popcorn still but will have to eat soon. (lol)
If people love each other I am not sure what the problem is still. Your 4 man made cardinal virtue churches are the ones who have put together the venue of what you are so proud of and are pointing your finger at us about.
Yes Pogo, a hate crime and you point your finger at us like it is okay that this has been perpetrated. Maybe God made it happen.
Well, God does not work that way. But Satan does. This is what I pray about all the time and I know evil when I hear it and pride when I hear it.
The Black Churches are all around us and we join with them and have missions with them in SE Missouri and I mentioned it and you all laughed about it. I don’t know if it was you in particular but it was the Flowers From Algernon Bunch.
So, we have Rhythm and are branching out and by His Stripes we are Healed.
http://youtu.be/HYUE9oZ4AIA
Presbyterian Church.
http://youtu.be/5fECGST8zfw
Mount Calvary Christian Church welcomes gays.
happypappies
“People that are on the right listen to authoritarian influences because that is what they do.”
Oh, that old canard.
Lefties drag it out whenever they feel pinched by reality.
Gosh, they even have ‘studies’ that ‘prove’ it.
Oddly, conservatives actually favor small governments so that they can leave us the hell alone.
That is, ANTI-authoritarian, by definition.
In contrast, the authoritarian left, the communists and progressives, want more and more government, including, as in the case here, wanting to have the State force people to participate in gay weddings.
And we are full circle.
Pogo
No one said anything about a Government here. You must have picked that out of the Air. I am speaking of God and Jesus. God is ineffable and we don’t know about the size of his government do we?
If you insist on using terminology and negating who I am by attaching a term of the Left to me even though I am Fiscally Conservative and do support a small government lol meaning to get rid of all the extemporaneous bs in DC. by all means, continue to address me that way as I will continue to correct you and call you by your avatar.
People on the Right are Authoritarian as I mentioned before in their Churches. They have rules for everything
Prudence: “the virtue that disposes practical reason to discern our true good in every circumstance and to choose the right means of achieving it.”
Justice: “the moral virtue that consists in the constant and firm will to give their due to God and neighbour.”
Fortitude: “the moral virtue that ensures firmness in difficulties and constancy in the pursuit of the good.”
Temperance: “the moral virtue that moderates the attraction of pleasures and provides balance in the use of created goods.”
And yet they cannot follow these rules because they are Man and not God made. Like the God they created in Mans image in the Old Testament that told Lot not to press himself against the angels as he sent his daughter out to the Sodomites to appease their lusts.
No one is practicing Psychology here Pogo. At least I am not. I am ready to come down on the Narcissist Maslow though.
http://youtu.be/Sz3TWWcqixQ
Makes me reconsider belonging to a church. It’s gratifying to see Christians taking Christs’s teachings to heart.
I did not mean to enter them twice
Pogo
As for Jesus and his turning over the tables in righteous anger for the desecration of the Temples ripping off the Temple goers of their Silver. Yes, Do you know about that? They had silver that was from Caeser and it was more valuable than Temple Silver and was to be traded in for less value.
They were a den of thieves and iniquity. What would you have him do – be like your Pat Robinson and Pander to Hypocrisy?
You are criticizing Jesus now. Because he showed love to his people and saw Satan in the Temple?
And you can’t discern the Bible I suppose? So you judge the gospels.
What was your take on the Adulteress – go ahead…. I am waiting with popcorn. And my superior chromosomes….. 😉
happypappies –
It wasn’t that it was worth less money, the Roman and Greek coins had graven images on them that could not be used in the Temple, hence the money needed to be changed for Hebrew money. Most money changers make a profit, but it is usually small per coin. Makes a lot over the day though.
Paul C. Schulte
happypappies –
They had silver that was from Caeser and it was more valuable than Temple Silver and was to be traded in for less value.
It wasn’t that it was worth less money, the Roman and Greek coins had graven images on them that could not be used in the Temple, hence the money needed to be changed for Hebrew money. Most money changers make a profit, but it is usually small per coin. Makes a lot over the day though.
Yes Paul
In the period of the Second Temple vast numbers of Jews streamed to Palestine and Jerusalem “out or every nation under heaven” (Acts 2:5), taking with them considerable sums of money in foreign currencies. This is referred to in the famous instance of Jesus’ driving the money changers out of the Temple (Matt. 21:12). Not only did these foreign coins have to be changed but also ordinary deposits were often handed over to the Temple authorities for safe deposit in the Temple treasury (Jos., Wars 6:281–2). Thus Jerusalem became a sort of central bourse and exchange mart, and the Temple vaults served as “safe deposits” in which every type of coin was represented
https://www.jewishvirtuallibrary.org/jsource/judaica/ejud_0002_0014_0_14119.html
http://youtu.be/XN4F5oAITcI
Christ the Good Shepard Lutheran Church’s gay choir. Nice to some churches so loving and welcoming.
DBQ
Yes. The project could be too large or beyond the scope, etc. But if you make wedding cakes you better be able to make that case in court if the customer chooses to sue.
The problem is the tension between First Amendment and the 14th Amendment. And I think the anti-gay arguments often are broader than religious tenets. Hostility such as Fromm exhibits is pure prejudice.
Take a look at what Jim answers. That’s what Ginsberg was talking about.
Listen to Sqeek shout STFU about a woman’s personal choice in contraception – about a ‘potential’ abortifacients – by an employer.
It’s a mess, DBQ. I only hope we are able make our way through it. We made it though lunch counters. Let’s hope we make it through this.
happypappies, Really? Who tells others what toilet they can buy. Who forces the public to buy health insurance? Who is forcing business’ to put aside their personal beliefs and cater? Who has a never ending thirst for others property and steals it?
So, who again is swinging the authoritarian hammer?
Nobody is Jim22, I think the Gays are fighting back is what is happening and that the thundering in the Authoritarian Churches is very loud and Thundering back. And the MSM is lapping it up and you are emotionally involved.
Jim22
happypappies, Really? Who tells others what toilet they can buy. Who forces the public to buy health insurance? Who is forcing business’ to put aside their personal beliefs and cater? Who has a never ending thirst for others property and steals it?
So, who again is swinging the authoritarian hammer?
Auto correct. That was supposed to be “to live.”