Below is my Sunday column in the Washington Post on Indiana’s Religious Freedom Restoration Act (RFRA). 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.
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.
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.
@ChuckS
You said: “I really feel sorry for you. It must be a miserable existence to have a closed mind and to hate the “different other.”
Wow, that statement takes a special blend of hubris and ignorance! The whole “tolerance” argument only appeals to the pro-gay side because they haven’t considered that tolerance is a sword which cuts two ways. One could just as easily argue that the nurse who treats Hitler Jugen should be an example to the gays who demand that somebody better “baken sie das kuchen or else!!!”
But, if you have a closed mind, then that idea never occurs to you. Add a little “I hate Christians[aka the different other] !” to the recipe and Wa-Laaaa— you have most of the pro-gay arguments on this thread. That was about as dumb as Max-1 when he came out with his “consenting adults” silliness, all while advocating to gut “consent” in the pursuit of Pastries Uber Alles!!!
Squeeky Fromm
Girl Reporter
Max – the left hand is considered unclean in some ME cultures and hence Old Testament, because that is the hand used in lieu of toilet paper. Only water and our left hand is used to cleanse.
Wadewiliams – no D&G was not referring to children in general of same sex couples. The “synthetic” remark was specifically about the possibility of blending 3 peoples’ genes using mitochondrial DNA.
“A lie gets halfway around the world before the truth has the chance to put its pants on.” Winston Churchill (who was a paragon of non-PC.)
How many pro-gay marriage people, like me, don’t agree with Elton John on absolutely every topic? Well, then that could be you on the next boycott or intimidation spree. If you thought you were glad that you weren’t the pizzeria owner receiving death threats, that could be you next time!
I, too, oppose creating children in a lab using 3 parents just so that gay men can create a child together. Efforts at creating lab embryos, such as cloning, come with a large number of birth defects, and the clones have a reduced lifespan. 3 parent children is a different method, but it, too, carries a lot of failed experiments before it’s perfected. It doesn’t seem fair to the people created that they should be stuck with a shorter life or birth defects because gay men wanted to create a child blended with their genes. We’re talking about completely changing the most basic biological process. Monkeying around with our genes could inject new genetic disorders into our population that we could never take back. And I think choosing genes is a slippery slope towards eugenics.
Sure, we can debate about it vs the evolution of in vitro fertilization, but Elton John appears to not think we should be allowed to have that debate. It’s his way or intimidate with a boycott.
What a totalitarian trend this is becoming.
Do people still not understand the difference between a public service, such as health care, police, or fire, and intimidating someone to create an artistic product for a religious ceremony they don’t want to participate in? Can we force businesses to participate in an anti-gay-marriage event?
Max – the florist was fined $1,000 per event. And she was flooded with requests to provide flowers to gay weddings, with no end in sight. So it wasn’t $1,000 total.
Yes, you’re right. The pizza owners should have said, “No comment.” They were just a little shop in a little town and weren’t politically savvy enough to know that if they are honest and say they serve gay people in the restaurant but would not want to participate in a gay wedding, that they would lose their business. And no one HAD asked them to cater to a gay wedding. They’re a pizza shop! A reporter just went to a provincial little town and basically targeted a mom-and-pop business to make an example of and shut down.
You would think this kind of savagery would be reserved for people who actually DID refuse to participate in a gay wedding. But this was a purely hypothetical question. I wonder if their daughter feels bad for innocently saying that they had never discriminated against anyone, she does not believe in gay marriage, but everyone can believe whatever they want. Silly goose! Didn’t she know she’s not allowed to say that and would be punished??? Now they get death threats for saying such a simple thing.
The message that I get is that we are not allowed to have an open and honest debate or just speak our minds. If we don’t have an opinion approved by The Party Line we will be driven out of business for daring to voice, however timidly, an opposing view. Professor Turley has remarked that we need to have this debate, but many gay marriage supporters are clearly uninterested. People were threatening to burn the restaurant for the ground. Is that debate? Trying to compassionately reason with the other side to make them understand your view? I think not. It is intimidation.
What is especially ironic is that this could have been a teachable moment to provide some insight into how it might feel for a gay person to be vilified or attacked. But, instead, the bullies are the gay marriage proponents.
And what is especially ironic is that I SUPPORT gay marriage. But I’m keenly aware that my comments against polygamy being anti-woman puts me in the “there but for the grace of God go I” category. What is the difference between me saying I oppose polygamy and someone else saying they oppose gay marriage?
Are we incapable of tolerating a range of beliefs? The world is messy, and no everyone has identical views. Even Dolce and Gabbana and Elton John disagree on gay issues. And the response was for Elton John to call for a boycott on Dolce and Gabanna. The message? Believe as I do or I will go after your livelihood.
This trend has to stop.
Wade “never met a question I couldn’t dodge” williams – D&G didn’t like children where the sperm of the two fathers were mixed. Thought they were synthetic. And I agree. It is a little weird.
Thomas,
I really feel sorry for you. It must be a miserable existence to have a closed mind and to hate the “different other.”
Know what Isabel is? She is not a liar, and I am puzzled how you got that from the picture. What Isabel really is, is a professional.
Quit her job because she has a neo-Nazi patient once in a while? Not on your life. My late wife was the Head Nurse on the cancer floor of one of the largest hospitals in Mississippi for many years. She had a number of hateful bigoted patients who used offensive language in front of her and her black nurses. Nevertheless, she made sure they got the best medical and cancer treatments she could provide. Quit her job because she had to (figuratively) hold her nose and bite her tongue when going in some patient’s rooms?
Not a chance. She was a professional.
My friend Jim Kitchens said, when he called me to tell me he had just been appointed as defense counsel for Byron De La Beckwith, “That man [Beckwith] opposes every value I hold dear. But, you know what? He deserves the best I can do as a lawyer, and I intend to put on the most vigorous defense I know how.”
Jim went on to ask for my help in putting together his case. I offered the best suggestions I could, because while I thought Beckwith had serious mental health issues, an insanity defense would have been a losing proposition. Jim Kitchens threw himself into the case, presenting an excellent defense. However, District Attorney Ed Peters and Assistant DA Bobby Delaughter put on an overwhelming prosecution case. Beckwith was convicted.
A movie, Ghosts of Mississippi, was made about the case. Jim Kitchens is now a Mississippi Supreme Court Justice. He is a professional, just like Isabel Holland.
When one offers one’s services to the public, you have an obligation to provide everyone with the same service. If you can’t do your dead level best in providing good services and products, you are not a professional, and deserve whatever the fallout from that might be.
Turning to the bakery who refused to put hateful messages on a cake. That is not an equivalence, moral or legal. Suppose, hypothetically, that Isabel was asked by one of her neo-Nazi patients to only refer to her black nurses as “n*******rs when in their presence. Or if Beckwith demanded that Mr. Kitchens stop referring to the late Medgar Evers as “Mr. Evers” and refer to him only as, “That n********r?
Both Isabel and Jim would tell them to go pound salt. Demanding that a service provider stoop to demeaning and disrespecting other human beings is beyond the pale.
See the difference? One demand is to provide an honest and legal service to citizens in the usual course of business, versus demanding the service provider engage in hate speech designed deliberately to spread discord and disrespect.
p.s.
What hand historically and culturally for the time and place of the Middle east did one customarily feed and nourish the body ‘Temple” with? And what hand was customarily used to wipe away the excrement and filth with?
happypappies,
What hand does one “historically” slap another across the right cheek with?
And for them to slap the left cheek (turn the left) what must they do it with?
MATT 5: 39 But I say unto you, That ye resist not evil: but whosoever shall smite thee on thy right cheek, turn to him the other also.
The left is used to tear apart and strike out with. The right is used to great and welcome. To slap someone on the left cheek one either doubles down and uses their right and disgrace themselves OR use the backhand of their left hand cementing their animus.
House, Senate committees pass bill to make Bible official TN book
http://www.tennessean.com/story/insession/2015/04/07/senate—bill-to-make-bible-official-state-book/25408343/
How is this Constitutional?
QUESTION:
Does Memories Pizza even or have they ever catered any wedding?
Her original answer exposed her animus toward LGBT.
She could have just said, “We’re not in the catering business.”
OK… So, what would they do should two gay men enter, order a pizza and then proceed with a nuptial exchange with a Justice of the Peace at the booth?
OK so equal marriage isn’t so equal in Indiana, however a commitment ceremony is…
Chuck Stanley
Nice!
The letter…
http://kfvs12.images.worldnow.com/images/7237076_G.jpg
happypappies
Turning the other cheek… means standing in truth.
Let their backhanded remarks be about them…
We’re here together.
Peace
Oh, you saw that? lol Turning the other cheek was originally about the Jews because they received a slap on the right cheek for punishment and it hurt their pride. That was the whole thing. It was Pride in the Name of Love.
Wadewilliams
DG now mans dirty garbage…
GOOD NEWS!!!
Obama to Call for End to ‘Conversion’ Therapies for Gay and Transgender Youth
http://www.nytimes.com/2015/04/09/us/politics/obama-to-call-for-end-to-conversion-therapies-for-gay-and-transgender-youth.html?_r=1
… Because someone has to think of the children.
Max-1 – Obama does not have as much authority as he thinks. Conversion therapy was standard therapy in the psychiatric community for years. Obama can turn blue in the face, it is still going to be offered.
In the interview the pizza shop owner’s father says that he CHOSE to be straight… Full stop!
Question:
Who out there “chose” to be straight?
Did he confront his homosexuality?
Or was he born gay and “chose” to be straight?
Thomas
What do you think about Charli Manson getting married?
Normal Americans???
As a Gay American, in many state I can’t get married.
Yet, I’m pretty normal; haven’t killed anyone, haven’t convinced a bunch of loonies to murder anyone, not carving my face up or stoned on meth/crack/herion/acid.
So, what make Manson a normal American and me, less than?
Things Jesus never said:
… Give me money
… Stop persecuting me, I’m dying up here
… Gays
Max-1 –
Things Jesus probably never said:
… Give me money
… Stop persecuting me, I’m dying up here
… Gays
FIFY