Religious Freedom: Colorado’s sensible middle way

There have been a lot of painful back-and-forths about what the proposed state “religious freedom” laws allow. Like this one, where ABC’s Jake Trapper tries to get the sponsor of Arkansas’ original RFRA bill (which has since been watered down a little) to admit that it allows “discrimination” against a same-sex couple getting married, while the legislator will admit only that it allows bakers, florists, et al to refuse to “participate in the message”.

There actually is a sensible in-between position, and I doubt a new law was necessary to allow it, because it was already embedded in the judge’s decision in the 2013 Colorado bakery case, as I noted last week.

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 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. [my emphasis]

Let me take this out of the gay-rights arena with a hypothetical example: Suppose I represent an atheist group that is about to celebrate its tenth anniversary. I go to a baker and ask for a cake. Suppose I want him to write “God is Dead” on the cake, and he refuses. If I sue, then I believe he should win the case, because his freedom of speech is violated if he’s forced to write something he doesn’t agree with.

But now suppose we didn’t get that far: As soon as I say why I want a cake, the baker responds, “I’m not going to make a cake for an atheist group.” All I want is a cake with a 10 on top of it, and he says no. Now if I sue, I believe I should win, because the baker is discriminating against atheists as a religious group. In other words, a business open to the public should be (and I believe is, without any new religious-freedom laws) free to refuse to endorse an idea, but it should not be free to refuse service to people merely because they practice or promote that idea.

Colorado followed that principle again this week when it upheld the right of a baker not to make an anti-gay cake:

The complaint against Marjorie Silva, owner of Azucar Bakery, was filed by Castle Rock, Colo., resident Bill Jack, who claimed Silva discriminated against his religious beliefs when she refused to decorate a cake showing two groomsmen with a red “x” over them and messages about homosexuality being a sin.

Silva said she would make the cake, but declined to write his suggested messages on the cake, telling him she would give him icing and a pastry bag so he could write the words himself. Silva said the customer didn’t want that.

If conservative Christian bakers would offer gay and lesbian couples a similar compromise — “I’ll make the cake and sell you two groom figures, but you’ll have to put them on the cake yourself.” — I suspect they’d have no problems with the courts. Certainly not in Colorado, and probably not anywhere.

The loophole the Arkansas legislator is trying to wiggle through is that the Supreme Court has extended First Amendment protection to “symbolic speech” — wordless actions that make a statement, like burning an American flag. He wants to claim that providing any of the services involved in a same-sex wedding can be construed as a symbolic statement that the provider approves of same-sex marriage. So a florist’s or photographer’s right to free speech is violated if s/he is forced to make such a statement.

That’s ridiculous. It’s the kind of passive aggression I’ve pointed out before: exaggerating your sensitivity in order to control others by claiming offense. Society could not function if we allowed everyone to claim this degree of moral sensitivity. (“If you force me to hire beef-eaters in my widget factory, then you’re making me say I approve of eating beef, which violates my Hindu faith.”) So it’s an implicit claim that conservative Christians have special rights that other people don’t have.

What this situation cries out for is a “reasonable person” interpretation: Would reasonable people look at the flowers at a same-sex wedding and see the florist making a political/religious statement? (“Those must come from Belle’s Flowers. I didn’t know Belle endorsed same-sex marriage. I thought she was a Christian.”) Or would they just think “nice flowers”?

This interpretation separates actual religious-freedom issues from the bogus ones that fundamentalists are putting forward. A reasonable person would assume that the officiating minister approves of the ceremony, so the minister’s presence makes a statement that the law can’t force. But florists? photographers? bakers? caterers? No.

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Comments

  • Roger Green  On April 6, 2015 at 10:39 am

    Did you happen to watch The Good Wife last night? the B-story (Diane Lockhart in a mock trial) was all about RFRA.

  • tfm1066  On April 6, 2015 at 10:55 am

    Very well put. I agree.

  • jpi75  On April 6, 2015 at 2:07 pm

    Just wanted to say that I have used your “Distress of the Privileged” essay so many times in my classroom… I am indebted

    Sent from the Shire

  • Dave  On April 6, 2015 at 4:11 pm

    I wonder what goes on in the printing world. As with cakes, printers are given the words to apply to a substrate. Is their free speech compromised by printing words from others that they don’t agree with?

  • Dave  On April 6, 2015 at 4:20 pm

    I actually meant to say “freedom of religion”, but both are interesting questions to me.

  • Kimberly Owen  On April 6, 2015 at 9:03 pm

    Let’s hear it for “The Reasonable Man of Law” – I thought he was dead but maybe, just maybe he’s still alive!!!

  • Meredith Garmon  On April 10, 2015 at 2:52 pm

    Thanks, Doug! Your post inspired mine: http://www.liberalpulpit.org/2015/04/judge-garmon-rules.html — which begins by stealing your example of the Hindu employer who won’t hire beef-eaters.

    • weeklysift  On April 11, 2015 at 10:50 pm

      A good job. I hope we’ll hear from “Judge Garmon” again sometime.

Trackbacks

  • By Sincere Beliefs | The Weekly Sift on April 6, 2015 at 1:53 pm

    […] This week’s featured posts are “The 2016 Stump Speeches: Introducing the Series“, “The 2016 Stump Speeches: Ted Cruz“, and “Religious Freedom: Colorado’s sensible middle way“. […]

  • […] April 6, “Religious Freedom: Colorado’s sensible middle way” explained the principles involved in the various cases involving bakers, photographers, and […]

  • […] The law as it was interpreted before Hobby Lobby and before the RFRA gave Americans all the religious freedom we need, as I outlined in 2015 in “Religious Freedom: Colorado’s Sensible Middle Way“: […]

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