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Critics of Indiana’s Religious Freedom Law Are Trying To Have Their Cake and Eat it, Too

Wedding_cake_with_pillar_supports,_2009Below 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.

561 thoughts on “Critics of Indiana’s Religious Freedom Law Are Trying To Have Their Cake and Eat it, Too”

  1. Max,
    Good try, but you are wasting perfectly good photons. Might as well argue with a stump for all the good it does. There is an actual scientific reason for that, as the result of advanced fMRI brain imaging studies done over the past several years have revealed. You may want to look in on the discussion which begins with this comment.

    Also, Jim Wright has a few pithy observations over on Stonekettle Station. His latest essay is a follow up to an earlier one. The latest offering of the old Chief Warrant Officer is, Object Lessons

  2. Rejected in Colorado…

    A BILL FOR AN ACT
    CONCERNING A PROHIBITION ON CONVERSION THERAPY BY A LICENSED MENTAL HEALTH PROVIDER.
    http://www.leg.state.co.us/clics/clics2015a/csl.nsf/fsbillcont3/B183A31CC3D9695C87257DA20061D9B9?open&file=1175_01.pdf

    Bill Summary

    (Note: This summary applies to this bill as introduced and does
    not reflect any amendments that may be subsequently adopted. If this bill
    passes third reading in the house of introduction, a bill summary that
    applies to the reengrossed version of this bill will be available at
    http://www.leg.state.co.us/billsummaries.)

    The bill prohibits a licensed physician specializing in psychiatry and a licensed or registered mental health care provider from engaging in conversion therapy with a patient under 18 years of age. A licensee who engages in these efforts is subject to disciplinary action by the appropriate licensing board. “Conversion therapy” means efforts that seek to change an individual’s sexual orientation, including efforts to change behaviors or gender expressions or to eliminate or reduce sexual or romantic attraction or feelings toward individuals of the same sex.

    We need Leelah’s law to protect the youth…

  4. Thomas
    “To be sure, Ms. Isabel Holland was irrefutably judgmental of sin with her “Swastika” reference. Undoubtedly she brought great shame on the “inked” patient.”
    = = =
    So you defend a Nazi while calling a nurse sinful because she helps in the healing of racist patients? Come again???

  5. I should add that I have never been critical of marriage. I regard your gratuitous insult as merely a characteristic element of what you erroneously perceive to be rational debate.

  6. Thomas:

    Nonsense. You are free to believe whatever you wish. Indeed, our jurisprudence gives religion particular deference in that neither the validity of belief nor the good faith of the believer are subject to judicial review. The ultimate question is whether pluralism can survive in a society which increasingly demands that the Free Exercise Clause protect not only freedom of worship, but freedom to exclude from participation in common commercial intercourse those whose opinions or status one deems morally unworthy. The integrity of my beliefs cannot be threatened by yours, and my selling you a cake or flowers or a wedding dress cannot be construed by reasonable people as an endorsement of your views or participation in whatever event you have planned. Renting me a banquet hall does not make you a guest at my party.

    1. “Renting me a banquet hall does not make you a guest at my party.”

      Mike Appleton,

      I hear a lot of talk about tolerance and respect for other people’s points of view coming from those who shut off all discussion of this topic by labeling their opponents bigots before even hearing, much less understanding, their arguments.

      Refusal to participate in, facilitate or otherwise bear witness to a particular practice or ceremony does not equal discrimination against an entire class of people. Denying blacks the right to eat at lunch counters is wholesale discrimination against a class of people; refusing to participate in, facilitate or otherwise bear witness to a particular practice or ceremony is not.

      “Bake me a cake or go to jail?”

      Oh yeah, that’s freedom alright.

      Furthermore, some of us couldn’t give a crap about RFRA and are simply concerned with preserving something called “‘individual freedom of mind” as discussed in Wooley v. Maynard, 430 U.S. 705 (1977)

      http://volokh.com/2012/11/02/amicus-brief-in-elane-photography-v-willock-the-new-mexico-wedding-photography-case/

      “Instead of moral and mental differentiation of the individual, you have public welfare and the raising of the living standard. The goal and meaning of individual life (which is the only real life) no longer lie in individual development but in the policy of the State, which is thrust upon the individual from outside and consists in the execution of an abstract idea which ultimately tends to attract all life to itself. The individual is increasingly deprived of the moral decision as to how he should live his own life, and instead is ruled, fed, clothed and educated as a social unit, accommodated in the appropriate housing unit, and amused in accordance with the standards that give pleasure and satisfaction to the masses.” — C.G. Jung

  7. Mike Appleton, rational people immediately perceived false zeal of the era and the folly of the 18th Amendment. It’s not clear to me why the sudden bout of lucidity and epiphanic Zen didn’t carry over to the 19th. And, as I recall, I provided an example of a couple of options available to the very abused, exploited and now very public Ms. Isabel Holland. Also, please don’t be overly critical of marriage. My mother was married. In deed, yours may have been also.

    To be sure, Ms. Isabel Holland was irrefutably judgmental of sin with her “Swastika” reference. Undoubtedly she brought great shame on the “inked” patient. To reiterate, emergencies are rare and special circumstances, such as the Maritime Law of providing assistance to ships in stress at sea, and life-threatening injuries in hospitals. I am certain that the parties in the bakery were in dire need of an EMERGENCY HOMOSEXUAL WEDDING CAKE, as preposterous as that may sound to some.

    While I don’t really “do” religion, I do believe that in freedom, we rely heavily on the “golden rule,” etiquette and morality to manage the “self-reliance” aspect, while under dictatorship, we do what we’re ordered. Under the American thesis, freedom must prevail over dictatorship and being compelled by government to accept and believe in behavior, an “orientation,” that is irrefutably unnatural, is unconstitutional, in that it is compulsory religion that precludes the free exercise thereof.

  8. Require additional evidence that D&G were speaking in general terms about surrogacy and not to Elton’s child specifically?

    Notice the “catalogue” remark for obtaining sperm.

    And then explain why Elton and his husband used a sperm catalogue.

  9. Health care is protected from religious freedom arguments because it is a public service?

    Wrong again, Karen.

    http://www.slate.com/articles/news_and_politics/jurisprudence/2015/04/rfras_in_indiana_arkansas_louisiana_religious_conscience_complicity_and.html

    Dahlia Lithwait writes that health care rights have been eroded for decades. Excerpt:

    “But these religious freedom arguments are actually rooted in an older movement, a decades-old effort to protect religious “conscience” through health care refusal laws. And it’s a movement that goes far beyond cake bakers and florists, sweeping in physicians, pharmacists, and insurers. Unless you see these new RFRAs as of a piece of this much broader, deeper social movement, you are missing the context that helps frame the debate.”

  11. Max & Mike A.
    Some folks are so invested in hate, they would rather quit their jobs just to make somebody else feel bad. Wow! McCook, Nebraska’s Mr. Bill has a thought on that…..and he is a conservative. A real conservative. Salt of the earth type from the plains.

  13. Thomas
    Chuck Stanley,
    When you lose the debate, go ad hominem.
    = = =
    Thomas
    Isabel Holland IS NOT OBLIGED to do anything.
    Isabel Holland is a liar.
    Isabel Holland can quit her job anytime she chooses to.
    = = =

    Of course it’s never when you do it… typicle.

  14. 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.
    = = =
    Sorry, please link to the Judge’s ruling spelling this out.
    Because the ruling I’m seeing is about a specific case brought forward by one couple.
    https://www.scribd.com/fullscreen/256209726?access_key=key-dy2qNwlJKjX5n9edItR0&allow_share=true&escape=false&show_recommendations=false&view_mode=slideshow

  16. Thomas:

    I’m certain that Isabel Holland takes great comfort in knowing that the moral anguish occasioned by the obligation to care for a Nazi sympathizer can be eliminated by getting married and quitting her job. Of course, that misses the entire point of her comment, which was that in the performance of her duties, she sees each of her patients as a human being rather than as a sinner whom God has placed before her to experience the wrath of her condemnation. We are becoming a nation of neo-Calvinist busybodies.

  17. Chuck Stanley,

    When you lose the debate, go ad hominem. Good job. You may have an

    education but where does one go to learn how to think? If I want smart,

    Chuckie, I’ll take a run down to the physics department, K?

    ******

    Isabel Holland is free and she can QUIT her job at any time.

    There is no law that compels Isabel Holland to take any particular job.

    Isabel Holland could get married to a man, for example, and never work again.

    Under the American thesis, people are free to choose their doctors and doctors

    are free to choose their patients. Emergencies have specific, not general,

    circumstances and considerations.

    This debate may have begun with the withholding of an

    EMERGENCY HOMOSEXUAL WEDDING CAKE.

    Let me check.

    Isabel Holland is free to quit her job at anytime.

  18. Max-1, let’s focus. Subject: Homosexuality as it bears on the conduct of

    private business.

    Drill down: Homosexuality is not normal and it is abnormal. That is established science. Normal sexuality results in procreation and perpetuation of the species. Abnormal homosexuality, were it normal (oxymoron), would result in the termination of the species. “That dudn’t make any sense.”

    Drill down: Sexuality, homosexuality in particular, is not the purview of governance under the American thesis of freedom and self-reliance. Not one penny of tax revenue should be spent on the subject – not one second of governmental debate. Individuals must adapt and live with their characteristics and the consequences of those characteristics. Morality and etiquette lead every person to “do unto others as you would have others do unto you.” Freedom of Speech allows Americans to express all opinions including those that insult the “king,” in your case the superior and untouchable homosexuals.

    The Founders limited government to security and infrastructure:
    Justice, Tranquility, Common Defence, Promote General Welfare.
    America has been lost since the liberal collectivist nullification of those limits.

    America is far afield.

    The inmates have taken over the asylum.

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