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.
Isabel Holland IS NOT OBLIGED to do anything.
Isabel Holland is a liar.
Isabel Holland can quit her job anytime she chooses to.
Karen S
Free speech comes with the responsibility for the words one says… NO?
Or are you suggesting bigots don’t have any personal responsibility for what they say and the target of their animus should just STFU?
They could have said, “no comment.”
But because the owner and her dad divided to let their pride shine they’ve parlayed it into being millionaires.
Pity the poor? Jesus did and they need to give that money away or be selfish and keep it… Sorry, they’re sharing a portion with the Wa State florist who, at a $1,000 fine cries, “stop persecuting me, I’m dying here”!
Congress made law requiring normal Americans to accept and believe in the HOMOSEXUAL religion. Congress has coerced Americans into the congregation of the First Church Of Homosexuality.
Given that science defines homosexuality as a physical anomaly and a perversion of nature, and that homosexuality is societally terminal, it is nothing more than religion to believe in the righteousness of homosexuality. It is state coercion that compels all citizens to participate and believe in the false and artificial religion of homosexuality.
All Americans SHALL believe in and sanction the religion of homosexuality, the marriage of the members of its congregation.
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“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”
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The SCOTUS has been corrupted into irrelevancy.
The inmates have taken over the asylum.
Great link Chuck!
Right on!
https://jonathanturley.files.wordpress.com/2015/04/isabel-holland-awesome-nurse.jpg
Chuck Stanley
I said on a comment what that link said because I don’t know how to post them right. I am Fiscally Conservative and Socially Liberal and consider myself to be Classically Liberal and because I have chosen to stand with the Gays because my Presbyterian Church USA now includes in the vow it was traditionally a man and a woman but now can be a man and a man….. in March of 2015.
I updated on the Blog that on March 27 4 of our Churches in SE Missouri were threatened by a quote in Leviticus to be burnt to the Ground before any of this Pizza thing happened.
Now, the Pizza thing is a funny thing. On one hand you hear that it is all innocence and the other hand the Owners go on to the Glenn Beck Show and say the Would never cater a Gay Wedding. So – what is the truth? They are going to give a lot of money to that florist in Washington.
“If a Child of mine were gay I would not participate in the Wedding”
http://www.thenewcivilrightsmovement.com/davidbadash/memories_pizza_owners_announce_what_they_re_doing_with_the_842_387
Now, I am being called everything in the world here – Unamerican, against Free Enterprise and Freedom of Religion. For Perverts, a total leftist, this is by people that call themselves Christians for the most part.
This ridiculous video went on to talk about how mean every one was after that was said above.
I am sorry, but I feel because people have decided to go back to the Great Awakening of Jonathan Edwards in the 19th Century that was the backlash to our great thinkers of the 18th Century Enlightenment. They can’t stand the fact that the country is changing rapidly and exponentially and the handwriting is on the wall so they are having this great backlash of Reactionary Evangelism and Michael Savage type polarization of the far Right.
@ P HaW
A couple who were reportedly abused as children (See my post re Dr. Alice Miller) randomly selected a registered sex offender from a list and murdered him and his wife. His attorney said that the killer thought “he was the right hand of God” in doing so.
Based on what he said in the video above, Pastor Manning (also abused as a child?) would apparently approve. A judge had a considerably different take on the double murder, however, perhaps because he’s some kind of secular lefty who’s soft on sex offenders.
As you’ve advocated in the past the mass murder of Islamic jihadists, what do you think of Pastor Manning’s exhortation to Christians to kill those who “raise their hands against the Word of God”? Should that be restricted to Islamic jihadists, or should we be more broadminded in our approach to deviance from Scripture?
http://www.cnn.com/2014/05/07/justice/south-carolina-neo-nazis-murder-sex-offender/index.html
Seriously, can’t everyone just get along?
I didn’t file a complaint every time a well meaning Christian told me I would burn in hell because I was Catholic, or that I worshipped the pope, or idols, or whatever.
People can think what they want and we don’t need to give them power to ruin our day.
Karen – the hate for Catholics was palatable when Kennedy was running for office.
I thought it odd that a gay couple wanted their wedding catered with pizza, so I checked into the Memories Pizza story.
Apparently, a reporter came into Memories Pizza, a little pizza place in a small Indiana town, and asked the owners a purely hypothetical question about whether or not they would feel comfortable catering a gay wedding. I saw the video. The daughter was at the cash register, and she said they have never discriminated against serving anyone, gay or straight. But they don’t believe in gay marriage. She said everyone’s allowed to believe what they want. The father said that he’s never been asked to cater to any wedding, but he would have to decline a gay wedding if he was ever asked.
Because of a hypothetical question about their personal beliefs, this business had to close its doors. It had 2 positive reviews before the segment aired. Afterwards, it was flooded with thousands of negative reviews of people who had never eaten there. Yelp keeps taking them down, but there are usually hundreds still up. They had to close their doors because they were flooded with calls, many for orders that were fake. They had no way to tell if an order was legitimate or not, and if that person gave a real address and was going to pay.
So, basically, a reporter targeted this business, which was driven to close its doors because of the owners’ opinions.
I have stated before that I support gay marriage, but I don’t believe in polygamous marriage, because I feel it is anti-woman, among other things. Does that mean that I’m next? Will there be a furious, vindictive polygamous marriage mob that will systematically exterminate every business whose owner does not support polygamous marriage? Protecting gays from discrimination in the workplace is not the same thing as forcing vendors to participate in your wedding. Honestly, who wants to eat a cake that a baker was forced to make against her will? Who knows what’s in it.
Elton John called for a boycott on Dolce and Gabanna just because the designer opposes creating children in a lab using 3 parents. People are not allowed to voice their opinions anymore without having their businesses shut down, and now apparently there are wars between gay musicians and gay designers about who supports gay rights more.
Professor Turley has pointed out concerns on this very topic. In the quest for tolerance, the gay rights supporters have been ironically intolerant themselves.
http://4.bp.blogspot.com/-YkNwHMyd1z4/VSUW0wEWxqI/AAAAAAADWPo/gTDBTH2OVEE/s1600/PenceCronies.png
RFRA supporter Curt Smith, law firm sever ties
http://wishtv.com/2015/04/06/rfra-supporter-curt-smith-law-firm-sever-ties/
Thomas,
Why fear nothing?
You’ve been properly taught? to hate the things you do not understand…
GOOD NEWS!!!
Another Step Toward Equality for LGBT Workers
http://blog.dol.gov/2015/04/08/another-step-toward-equality-for-lgbt-workers/
by Secretary Tom Perez
ISIS? Nope, an American EVILgelical instead…
“If we’re going to win this battle for the lord God almighty, two things are going to have to happen in terms of our battle strategies. We’ve got to be willing to die for what we believe. If you believe the word of God, then there is no way you will not die willingly for the cause of Christ. But the other thing – if we’re gonna win this battle against Obama, the long-leggy mack daddy, the quasi-Muslim freak, the vice president of both death and hell, against the sodomites, against racism – we’re gonna have to be willing to kill as well. You can try to arrest me, saying that I’m inciting murderous behavior. Go ahead and try. See if that will stand up in court. Let me tell you something, if you’re not willing to kill for what you believe, if you’re not will to kill those that are diametrically opposed in great evil against you believe, then you’re not worthy of his service. You gotta be willing to kill. You gotta be willing to die.” – Harlem Pastor James David Manning
Congress made law requiring normal Americans to accept and believe in the HOMOSEXUAL religion. Congress has coerced Americans into the congregation of the First Church Of Homosexuality.
Given that science defines homosexuality as a physical anomaly and a perversion of nature, and that homosexuality is societally terminal, it is nothing more than religion to believe in the righteousness of homosexuality. It is state coercion that compels all citizens to participate and believe in the false and artificial religion of homosexuality.
All Americans SHALL believe in and sanction the religion of homosexuality, the marriage of the members of its congregation.
**************************************************
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”
***************************************************
The SCOTUS has been corrupted into irrelevancy.
The inmates have taken over the asylum.
Oh, and this happened today…
MATT 22:19 Shew me the tribute money. And they brought unto him a penny.
TAX
Caesar’s bidding in the Temple…
Pokin Around: Mega-church pastor tells members to repeal gay rights law
http://www.news-leader.com/story/news/politics/2015/03/24/pokin-around-mega-church-pastor-tells-members-repeal-sogi/70396352/
Just so everyone understands, the above repeal in Springfield, Mo. is proof animus CAN undo Civil Rights protections for some…
… It’s also proof that sometimes the gays have to take it on the chin.
https://twitter.com/kytv/status/585650159348019201