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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. Well, some of the commenters remind me of certain former posters here whose arguments pretty much consisted of striking the attitude,of ” I am sooo smart, how dare you disagree with me???” and undifferentiated name calling. They deserve an Irish Poem!

    All A’Bored???
    An Irish Poem by Squeeky Fromm

    There once were some people we know,
    From a blog known as “Pansies For Plato.”
    But, they came here to b*tch,
    This is evidence which
    Proves they tired of the sound of the “Echo”!

    Squeeky Fromm
    Girl Reporter

    1. Squeeky Fromm, Girl Reporter

      This thread has become very boring and full of personal inyourendo. 😉

      Thanks for lightening up the dark and vicious atmosphere dear 🙂

  2. Thomas:

    In the course of reading your most recent post, I realized that I have had exchanges with you in the past when you were traveling under a different identity. You’re the Preamble as substantive law guy. One of the reasons I continue to have misgivings about internet anonymity is that it is an open invitation to trolling. The second problem I have is that your posts are virtually impossible of a reasoned response because your views are a form of utopian anarchy that ignore the entire history of constitutional and case law development. Your latest post is an example of that. The sort of freedom you espouse has never existed in this or any other society, mainly because society would quickly devolve into chaos if it did. With that being said, I do not intend to respond further to your comments unless and until you decide to abandon the multiple personality game and become an actual person with actual ideas.

  3. Squeeky
    many of the anti-baker folks here
    = = =
    I love cake… the baker doesn’t love me eating it.
    … But I’m an anti-baker?

    1. Max-1 – I think it is possible to love the cake but hate the baker.

  6. Ingannie
    I agree Chuck. There’s seems to be a hard wring problem in the conservative brain because any amount of discussion with rational reasonable arguments have absolutely zero effect. The fear and loathing factor seem to trump all. And as a nurse I can agree with the nurse on the poster, there was no exemption allowed me when it came to taking care of loathsome patients, it had to be done and was. The idea that serving a gay couple in any capacity is so objectionable, religiously or other ways is outrageously bigoted.

    Just wanted you to know that my comment, which was a reaction to this ad hominem attack, was to show that doesn’t go for all conservatives. BTW, I never saw any of my students as loathsome regardless of how much hard work I had to put into them. I always took the greatest pleasure even in their smallest successes.

  7. Mike Appleton,

    The Constitution gives Americans the right to freedom of religion and freedom of speech, with freedom of thought existing naturally before the government was established. The Constitution also gives Americans the right to private property and precludes government from mandating commerce. Civil or public rights are distinct and separate from private property/business rights. Private contracts for wedding cakes are agreed to by the parties involved. That transaction is not public it is private. The owner of a private business has the right to private disposition of the business and the owner is not compelled to explain private business decisions. Every person has a right to religious beliefs and the owner of a private business has the right to accept or reject a contract on his personal beliefs and his religious beliefs. Americans have a right to privacy and business decisions may remain private.

    The government or jurisprudence has no right to compel two private parties to agree to any or all terms of a contract. No individual or group may dictate a belief or desire of another. No individual or group may dictate private commerce between private parties.

    You appear to reject the American thesis of freedom and the founding documents that establish the full freedom and privacy of private individuals and private businesses. You find some personal belief prevalent over those freedoms. That’s called dictatorship.

    The free private business owner cannot compel a customer to purchase.
    The free private customer cannot compel a business to sell.
    People enter property by permission of the property owner.
    The owner has a right to remove anyone from his property under trespass law.
    The customer has a right to enter the business at the pleasure of the owner.

    **********

    Interestingly, China has no “18th Amendment” or women’s suffrage, China does not allow women to vote; or men either. And China has no welfare, food stamps, social services, etc., as people pay for their own school and healthcare. Since religion is the “opiate of the masses,” China must have laws against it or religion is simply moot. PetroChina overtook Exxon as the world’s largest oil company. China is in aggressive pursuit of world hegemony. Obviously, China is no longer a pure communist play. It is a hybrid. Apparently, a hybrid ideology constantly modifies its principles.

    That is what has happened in America after the rejection of the binding nature of the Preamble, and the incremental nullification of the Constitution and Bill of Rights. Chinese communists (hybrid) may have that latitude, but the Preamble, Constitution and Bill of Rights still hold dominion in America. Hopefully there will come a day when those documents are re-implemented.

    1. Thomas

      Like most people that are reactionary, you wouldn’t know what a free thought was if it came up and smacked you in your face.

    2. Thomas

      Your Reply to Mike A regarding the Constitution and it not being part of the wedding service to bake the cake:

      Every person has a right to religious beliefs and the owner of a private business has the right to accept or reject a contract on his personal beliefs and his religious beliefs. Americans have a right to privacy and business decisions may remain private.

      Not according to the Fair Housing Act of 1964

      Public Accommodations and Facilities

      A town rents its community center to local groups for meetings, but refuses to rent it to a local Hindu group that wants to hold a Divali festival and a group that wants to hold a Christian music concert. The town tells both groups that it has a no-religious-activities policy at the center.
      Three Buddhist monks go out to a restaurant wearing robes, but the proprietor says “we don’t allow religious clothes in here. Come back when you are dressed normally.”

      These examples may be violations of federal law. Title II of the Civil Rights Act of 1964 prohibits discrimination based on religion in public accommodations, such as restaurants, theaters, and hotels. Title III of the Civil Rights Act of 1964 prohibits discrimination based on religion in public facilities owned or operated by a state or local government.
      http://civilrights.findlaw.com/discrimination/federal-laws-against-religious-discrimination.html

      I have been watching your posts and frankly they don’t make any sense.

  9. @DBQ

    Well, if there was a Truth in Gravatar Law, many of the anti-baker folks here would have images that look like this:

    http://ww3.hdnux.com/photos/13/21/52/2955958/3/628×471.jpg

    @Bob

    Oh, I am an INTP, too! I don’t think we can help but look at both sides of an issue. It is part of us trying to understand things. I think that Briggs and Meyer should have had a 17th category, called “DORK” which stands for, Dumb Opinionated Rabid Knuckleheads.

    Squeeky Fromm
    Girl Reporter

  10. PCS,

    the local district gifted the union strikers a 3% raise today. For what. Question: Concerning the general public school population, how much data presented by educators and learned by students is retained by students and what’s the duration of that retention? Is that measureable?

    My contention is that a high percentage of public school teaching is lost ultimately and that greater and greater amounts of money don’t change the fact that most of the “education” is temporary and therefore, pointless. For most of the public school population, “education” is, at best, an exercise in futility.

    Factories were automated 3 decades ago. The greedy, striking teachers unions have kept public schools in analog mode to keep rip-off payrolls and unions dues up and rising.

    PCS, isn’t it true that EDUCATION occurs in the STUDENT according to that particular student’s ability and motivation, and that teachers actually have VERY LITTLE (maybe 30%) to do with installing data in the student’s brain and keeping it there?

    If students’ ability to learn were consistent and stable among the school population, the critical factor in education would be the teacher and ALL STUDENTS WOULD BECOME Ph.D’s. The student and his family support is the critical variable and that is why “successful” education of students is elusive.

    IT’S THE STUDENT THAT MATTERS.

    Exactly what is the point of GIFTING teachers more and more money every year for doing very little in the “EDUCATION” process?

    1. Thomas – studies have shown that both good, bad and indifferent teachers affect students. Each in a different way. I have taught computerized high school and even there you need a teacher to help the student through the rough spots. Although merit pay is probably the best way to pay teachers there is no standardized test for every class. How to you evaluate the drama teacher, or the art teacher, or the P.E. teach, etc. And in small schools teachers teach more than one subject.

      My complaint is the 3%. My wife got a 1.5% raise and her bank makes profit plus she gets great annual ratings.

  11. Karen

    Forgot another point.

    Yes, Elton and his husband may have chosen to mix their sperm and let luck determine which was to be the biological father. Are you seriously ready to call that 3-person IVF?

  12. My comment at 11:22 is a rewrite of my comment that was deleted last night.

    (Someday I hope to be able to sit in on a Turley class on the 1st A. Obviously, I have much to learn about it.)

  13. Doesn’t Answer A Question – you could not assure me that it was cold outside.

  14. Karen said:

    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.

    D&G said (according to Karen’s approved source Breitbart)

    “I call children of chemistry, synthetic children. Uteri for rent, semen chosen from a catalogue,” Dolce stated.

    **********

    Dolce IS speaking in general terms.

    He doesn’t have anything to say about the blending of 3 people’s genes. He does not say “Elton’s child”. He says “children of chemistry”. He says “uteri’ (one is understood) and semen from a catalogue. To “choose from a catalogue” does not insist that multiple sperm donors are chosen. Karen should present her case of just why hopeful parents would WANT to combine sperm from multiple donors. It makes no sense. Parents needing sperm donation want to be able to choose genetic qualities that they favor. They do not want to depend on a grab bag of assorted qualities. Does Dolce think Elton John and his husband chose from a catalog when in all likelihood one of them has perfectly healthy sperm?

    Scientists have sought and received UK regulation to permit the fertilization of an embryo by 3-person IVF. Permission was passed and will TAKE EFFECT IN October 2015. Too late to have effected the parentage of Elton’s child or children.

    Can Karen present a case that D&G even know about this relatively new IVF fertilization? Are they readers of genetic scientific journals? Is this likely? My guess is the depth of their scientific knowledge is that water can be changed into very cold hard things that rattle around in a glass of scotch.

  15. According to Meyers Briggs I’m an INTP/J……………I have a low threshold tolerance for people who bullshi+ their way through an analysis simply to get what they want.

    Hi Bob. Welcome to the club. Fellow INTJ here. I feel the same. People who argue from emotion and refuse to consider facts are not worth dealing with.

    This entire discussion seems to be one side who argues hysterically and cannot tolerate any factual discussion and wants to distort the positions of those who keep trying to present logical viewpoints. I can see both sides of an issue. There are always multiple sides to any issue. Unfortunately for those who continue to emotionally argue there is only black and white in their world..

  17. Find my comment @ 12:54 somewhat enigmatic? That is perfectly understandable as my comment immediately preceding was deleted.

    Just wanted to set the record straight.

    I’ll recompose. I want to have the opportunity to respond to Karen’s assertion about D&G and the use of a ‘mix’ of more than one sperm donor.

  19. I agree Chuck. There’s seems to be a hard wring problem in the conservative brain because any amount of discussion with rational reasonable arguments have absolutely zero effect. The fear and loathing factor seem to trump all. And as a nurse I can agree with the nurse on the poster, there was no exemption allowed me when it came to taking care of loathsome patients, it had to be done and was. The idea that serving a gay couple in any capacity is so objectionable, religiously or other ways is outrageously bigoted.

    1. Inga – as a teacher I cannot ever remember not treating all of the students fairly. My grading system was handed out at the beginning of the semester and the points were all up to them. I designed it so I had the least part in it. They earned the points or they didn’t. As a good conservative I did not discriminate against anyone.

  20. Chuck,

    Just out of curiosity, how does labeling the opposing point of view as having the brain of a lizard foster intelligent discourse?

    I started off in the liberal camp when Bush v. Gore dragged me into this thing called political discussion. And when Bush/Cheney defrauded the country into war I thought I’d never listen to what Republicans had to say.

    But then came Obama. And then I was disgusted when all those liberals who claimed to be on the side of justice and against tyranny in opposing Bush/Cheney turned out to be a bunch of hypocrites who would later essentially claim “Tyranny’s okay; so long as it’s our guy (Obama) that’s practicing it.”

    According to Meyers Briggs I’m an INTP/J. According to the description, that means, among other things, that I have a low threshold tolerance for people who bullshi+ their way through an analysis simply to get what they want.

    Finding reasons to ignore opposing points of view is the key to ignorance and a padlock on the door to wisdom.

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