The Weekly Sift

Are the principles that protect religious liberty secure, or are recent court decisions steps on a slippery slope?

One of this week’s big stories was Arizona Governor Jan Brewer’s veto of S.B. 1062, “An Act … Relating to the Free Exercise of Religion“. Proponents claim that this law (and similar proposed laws around the country) is necessary to protect Christians from being forced to participate in same-sex marriage celebrations, in violation of their freedoms of conscience and religious liberty.

There’s one important thing you need to understand about this controversy: It’s symbolic. I went looking for cases where businesses were forced to deal with same-sex weddings and I found exactly five in the entire country.

• In New Mexico, a photography business was successfully sued by a lesbian couple whose commitment ceremony (same-sex marriage being illegal in New Mexico) it refused to photograph. (I covered the ruling in a weekly summary last August.)
• The Oregon Bureau of Labor and Industries ruled that a bakery had violated state law when it refused to make a wedding cake for another lesbian couple.
• A judge in Colorado similarly ruled against a bakery.
• A Vermont inn was sued for refusing to host a wedding reception for a same-sex couple, which the owners claim was a misunderstanding. The case was settled out of court, so we don’t know what a judge would have said.
• A suit is pending against a florist in Washington.

Some writers make it sound like these are representative examples out of many, but they may well be the only instances to date.

Last June, the Pew Research Center estimated that over 70,000 same-sex marriages had been performed in the United States, plus an uncounted number of civil unions and legally unrecognized commitment ceremonies like the one in New Mexico. In all but a handful of them, people seem to have worked out whatever differences they had. Wedding planners, photographers, bakers, dress-makers, tuxedo-rental places, florists, celebrants, meeting halls, church sanctuaries … either they approved or they swallowed their disapproval or the couples took the hint and looked for service-with-a-smile elsewhere. Or maybe they found compromises they could all live with. (“I’ll sell you the cake, but you’ll have to put the two brides on top yourself.”)

In short, S.B. 1062 does not address a practical issue. Across the country, people are behaving like adults and working things out without involving the government. Governor Brewer recognized as much in her veto statement:

Senate Bill 1062 does not address a specific or present concern related to religious liberty in Arizona. I have not heard one example in Arizona where a business owner’s religious liberty has been violated.

The uproar is also symbolic on the other side. Critics of S.B. 1062 warned about “gay Jim Crow” laws, but just as there is no flood of suits against fundamentalist Christian florists, neither are large numbers of businesses waiting for the state’s permission to display “No Gays Allowed” signs. As The Christian Post pointed out, Arizona (like many other states) has no state law protecting gays from discrimination. (New Mexico does, which is why the lesbian couple won their suit against the photographers.) So outside a few cities that have local anti-discrimination ordinances, Arizona businesses are already free to put out “No Gays Allowed” signs without S.B. 1062. If any have done so, nobody is making a big deal out of it.

What this all resembles more than anything is the argument over the constitutional amendment to ban flag-burning. Actual flag-burnings are so rare that most of the amendment’s backers couldn’t cite a particular case, but they felt very strongly about it all the same. The few cases that actually exist are merely chips in a poker game; they are symbols of some deeper philosophical conflict, but mean little in themselves.

That’s not to say that philosophical conflicts are unimportant, but they are also not urgent. Because major injustices against one side or the other are not happening every day — and depending on your definition of “major injustice” may not be happening at all — we can afford to take some time to think this through calmly: What principles of religious liberty should we be trying to protect, and are any of those principles implicated in the cases that have been decided?

In my view, one basic principle is: No one should be forced to participate in a religious ritual. That’s why I don’t want teachers leading prayers in public school classrooms, especially when the children are too young to make a meaningful choice about opting out. For the same reason, it would be wrong to sue a priest who refused to perform a Catholic marriage ritual for a marriage his church did not sanction.

Some supporters of laws like S.B. 1062 (and the pending H.B. 2481) are citing this principle, but I think we need to be careful not to stretch the definition of a religious ritual. For example, civil marriage is not a religious ritual, so neither an officiating judge nor the clerk who issues a license is participating in religion. (If they were, that would seriously violate the separation of church and state.) Requiring that they do their jobs is not a violation of their religious liberty. The fact that you don’t make the laws and may disagree with them is a normal hardship of working for the government, not a First Amendment issue.

Similarly, a wedding reception is not a religious ritual; it’s a party that happens to take place after a religious ritual. Baking the cake or DJing the music or manning the bar are not sacramental roles, and do not deserve that kind of protection.

A second principle is: No one should be compelled to make a statement against his or her conscience. This was used as a defense in the Colorado bakery case. Administrative Law Judge Robert Spencer rejected it like this:

There is no doubt that decorating a wedding cake involves considerable skill and artistry. However, the finished product does not necessarily qualify as “speech,” as would saluting a flag, marching in a parade, or displaying a motto. The undisputed evidence is that [the baker] categorically refused to prepare a cake for Complainants’ same-sex wedding before there was any discussion about what that cake would look like. [The baker] was not asked to apply any message or symbol to the cake, or to construct the cake in any fashion that could be reasonably understood as advocating same-sex marriage.

So if a wedding-reception singer refused to sing some special gay-rights anthem, I would support him under this principle. But if he refused to perform at all, or refused to perform more-or-less the same collection of songs he does for everyone else who hires him, then I wouldn’t. Leading the friends and families of a same-sex couple in “The Hokey Pokey” is not a religious or political statement that should challenge anyone’s conscience.

Weighing against these exceptions is a public-accommodation principle that got established during the Civil Rights movement: If a business serves the public, then it should serve the whole public. The point of Jim Crow laws wasn’t to protect the consciences of white business owners, it was to exclude black people from the general public. If excluding gay and lesbian couples from the general public is the purpose behind refusing to serve them, that shouldn’t be allowed.

People try to fudge this principle by creating me-or-him situations. I grew up reading Ann Landers’ advice column in the newspaper. Ann used to regularly get questions like: “My good friend says she can’t come to my wedding if my other good friend is going to be there. What should I do?” As best I remember, her answer was always something like: “Invite everyone who you want to see there. If your friend doesn’t want to come, that’s her decision.” The same idea works here: Everyone should be invited to the marketplace. If you feel that the presence of gays and lesbians in the marketplace means you can’t be there, that’s your decision. No one has forced you out. (This is my answer to the U.S. Council of Catholic Bishops, who claim “Catholic Charities of Boston was forced to shut down its adoption services.”)

The other frequently raised issue has to do with venues: Will the law force my church sanctuary to be available for same-sex marriages? The idea that a sanctified site will be used for some unholy purpose strikes many people very deeply.

The case that is always cited — often not very precisely — involves a Methodist group, the Ocean Grove Camp Meeting Association in New Jersey. The OGCMA owned a boardwalk pavilion, which the judge described as “open-air wood-framed seating area along the boardwalk facing the Atlantic Ocean.” The Methodist group used the facility “primarily for religious programming”, but had received a tax exemption for the property the pavilion was on. One condition of the exemption was that the facility be open to the public. The OGCMA had a web page advertising “An Ocean Grove Wedding”, which cost $250 in rent. The OGCMA did not conduct or plan the weddings, and the page said nothing about Methodist doctrines concerning marriage.

Until the OGCMA turned down a lesbian couple that wanted to celebrate a civil union in 2007, no one could recall a wedding being refused for any reason other than scheduling. After the couple sued, OGCMA re-organized its use of the pavilion. It stopped advertising it to the public and sought a different kind of tax exemption available to it as a religious organization. The judge found:

[The OGCMA] can rearrange Pavilion operations, as it has done, to avoid this clash with the [New Jersey Law Against Discrimination]. It was not, however, free to promise equal access, to rent wedding space to heterosexual couples irrespective of their tradition, and then except these petitioners.

Recognizing that the couple mainly sought “the finding that they were wronged” and that the OGCMA had not “acted with ill motive”, the judge assessed no damages.

In other words, this example is not particularly scary when you know the details. The principle here is pretty simple: If you worry about the sanctity of your holy space, don’t rent it out to the public — which is good advice in general, irrespective of same-sex marriage. If you do rent it out, then we’re back to the public-accommodation principle.

In conclusion, I’m not seeing anything particularly alarming in the five cases (six, if you add the boardwalk pavilion case) that are motivating people to support S.B. 1062 or similar laws. Reasonable principles are prevailing, and I do not see a slippery slope.

So if you’re worried about your minister being forced to bless a same-sex wedding in your sanctuary or go to jail, don’t be. It’s not happening and nobody is advocating for it to happen. Nothing in the cases that have been decided leads in that direction.