Religious freedom under attack!

swedish chefTell me the truth. Was the exclamation point too much? Or just enough?

A while back–weeks or months ago, or maybe a year, who knows–I read an article about a dispute between a lesbian and a Muslim barber. This is not a joke. This was in Toronto. (Also not a joke.) The lesbian wanted a “businessman’s haircut” (not sure what that is, not being a businessperson, but I assume it’s a thing businesspersons and their barbers know about). The Muslim refused because his religion forbids him from touching a woman who isn’t his relative. I don’t know what the relevance of her being a lesbian was, but it was part of the story, which is why I include that tidbit here. I guess her being a lesbian somehow explained why she would be visiting a barbershop that catered exclusively to men, although I should think that would be offensive on some level, I don’t know. Who am I to judge? It still doesn’t explain why she’d want especially to visit a Muslim barbershop. But I digress. The woman was offended by the Muslim’s refusal and filed a complaint with the human rights commission. The case went to moderation.

When I read about it, the case had been settled via a private, confidential agreement that allegedly pleased both sides, which I thought was a great outcome. I was not so pleased, though, that the agreement had to be confidential. Here we had a gay woman’s civil rights pitted against a religious minority’s right to practice his religion. One would have thought this an unresolvable dispute without trampling on someone’s sense of justice. So how was this resolved to everyone’s satisfaction? We’ll never know, which makes me kind of crazy. It’s like someone reported there was an accident on Main Street between a Honda Civic (hybrid) and a bus full of orphans, but never mind if anyone was hurt or who was at fault because that’s confidential. Move it along, people, nothing to see here.

With the growing societal acceptance of homosexuality and the growing governmental intervention in the arena of health care, some religious Americans have complained that their first amendment rights are being restricted. Granted, this is after gay people have already had their right to buy wedding cakes at the bakery of their choice restricted and women have had their right to have hormone-based contraceptives provided at no cost to them restricted for years, but now that straight white Christian men are involved, let’s all pay attention.

There are legitimate concerns on all sides. In the case of the bigoted bakery, the liberal/progressive solution is simple: If you’re a business offering services to the public, you have to be willing to provide those services to everyone, no matter what your religion says. The libertarian and/or conservative solution is even simpler: Maybe you could just find another baker? (Radical, yet effective!) In the case of the woman-oppressing employer, the libertarian/conservative solution is simple: We need to uncouple health insurance and employment. The liberal/progressive solution is even simpler: Religious people need to get over themselves. (Unlike most liberal/progressive solutions, this one doesn’t raise anyone’s taxes. But I digress.)

One side argues that religious freedom has to be balanced with other rights and does not extend to violating the rights of others. If you don’t believe in gay marriage, that’s fine–don’t believe in it all you want, but that doesn’t mean you can refuse to bake a wedding cake for a gay couple. Baking a cake for gay wedding (and accepting money for it) doesn’t violate your deeply-held belief that gay marriage is wrong. You still believe it, don’t you? No one’s forcing you to change your mind, just to bake a cake. If you want to be in the cake-baking business, baking cakes for everybody and all occasions is the price of admission. If you don’t like it, go back to baking cakes in your own non-commercial kitchen for free. Likewise, if you don’t believe in birth control, fine. Don’t use birth control. Think that anyone who does is going to hell. Think anything you like. It’s not like this is 1984 or something. You still have the right to your own thoughts (within reason). You just don’t have the right to deny your female employees contraception paid for by you. (It has to be paid for by you because the law says you have to provide health insurance and all health plans have to provide no-cost contraception to its users, as is only appropriate because contraception is a legitimate health care expenditure, even if it is only for women of childbearing age. Fecund women are every bit as human as impotent men. Don’t pretend you don’t understand the analogy.)

sam the eagleThe other side argues that religious freedom is our most basic freedom, the right to speak and act in accordance with the dictates of our own conscience. “Dictates of our own conscience” is a Mormon phrase, but Mormons often think they have a vested interest in preserving the religious liberty of conservative Christians, even though most of those people think Mormons are going to hell and would throw us under the bus the minute it became expedient for them to do so. Nevertheless, Mormons–like all religious people–do have a vested interest in protecting religious freedom, whatever that is. I mean, we wouldn’t want anyone to force us to act against our own consciences (unless it was for something essential to a civilized society, like cake or birth control). That way lies tyranny. Before you know it, we’ll be forbidden from engaging in sacred ordinances, such as polygamy. Oh, wait.

Seriously, though, a lot of Mormons are concerned about religious freedom because they can easily foresee how the government might infringe on their rights. Some of these people are just paranoid. A few weeks ago my husband was teaching a youth Sunday school class, and the kids were wondering what would happen if the U.S. government started forcing us to perform gay marriages in temples. Would the temples have to close? Well, such a scenario is not entirely unthinkable–obviously, since plenty of people have thought of it–but at this stage there are several legal obstacles that would have to be overcome before it became even remotely likely. If it ever looked like the government was going to force the church to open its temples to any couple getting married, the church would simply stop performing weddings, i.e. it would perform sealing ceremonies only for Mormon couples who met temple-worthiness requirements after they had been legally married civilly. (In other words, American Mormons would start getting married and sealed the same way countless other Mormons around the world get married and sealed. No temple closures required. Perhaps we’d even end up doing temple work more efficiently because we wouldn’t have these brides with their poofy dresses clogging up the works. Who knows what the ramifications might be?)

But not everyone who’s concerned about religious freedom is just being paranoid. I confess to being a little concerned about religious freedom myself. Mostly because I’m suspicious of all government encroachment, which I guess makes me paranoid, but I like to think I’m a reasonable person, so it can’t be just paranoia. I must have a legitimate concern in there somewhere. No matter how good people’s intentions are, laws can sometimes have unintended consequences. Actually, they usually do. So maybe it’s paranoia, but sometimes a little paranoia is a healthy thing.

Speaking of unintended consequences, a friend posted an article on Facebook about the Church of Satan using the U.S. Supreme Court’s Hobby Lobby decision to repeal “informed consent” laws about abortion. Her take was that this is what happens when you take religious liberty too far. Who wants the Church of Satan to triumph? And yet, what are your choices in a religiously pluralistic society? I admit I couldn’t make heads or tails of the Church of Satan’s argument, but it doesn’t really matter because if there’s a group that poses less of a threat to my country than Satanists, I don’t know what it is. I’m actually okay with the Satanists having their way on this one, even if I don’t particularly have a problem with “informed consent” laws themselves. But what are some scenarios in which one person’s religious liberty is pitted against another’s?

For example:

Gonzo_with_chickens1. A polygamist (NOT a member of the Church of Jesus Christ of Latter-day Saints) walks into a bakery owned by an evangelical Christian. (Not a joke, but a hypothetical.) The polygamist wants a wedding cake for his marriage to his fifth wife. Nothing weird, just your basic wedding cake, only with five bridal figures next to the groom on top, instead of just one. He’s willing to pay extra, considering that the baker will be forced to break up four other sets of decorative couples and what’s he going to do with those extra grooms? A gay male couple hasn’t come into the shop in months. Unfortunately, the evangelical Christian doesn’t believe in polygamy and he can’t in good conscience make this wedding cake for a ceremony he thinks is an abomination before God. He tells the polygamist he’d be happy to refer him to another bakery that does this sort of thing, but the polygamist was pretty set on having an evangelical Christian bake his fifth wedding cake. No one knows why, and he won’t say, but for the sake of argument, let’s just say that going to another bakery isn’t an appropriate solution. The polygamist feels he’s being discriminated against because of his religion. After all, he’s not forcing the evangelical Christian baker to become a polygamist. The baker’s only objection is that he’s against polygamy, which is a central tenet to the polygamist’s faith. Therefore, the polygamist is a victim of religious discrimination. But the baker argues that baking a polygamist wedding cake implies an endorsement of polygamy, which his conscience simply won’t permit. (One might envision a secular baker also objecting to baking a polygamist wedding cake, arguing that polygamy is an inherently sexist and/or misogynist practice, but after the Hobby Lobby decision, it isn’t clear whether feminists have any rights at all anymore.)

2. A Mormon walks into a seamstress shop owned by a devout Christian (non-denominational). (“Seamstress shop” seems like a very old-fashioned term, but frankly I’m not sure of the politically correct name for a place that sews clothes to order. I’m not even sure how many of these places exist anymore. But since this is a hypothetical, it shouldn’t matter whether it exists or not.) The Mormon wants a white dress made for her daughter’s baptism. The seamstress doesn’t ordinarily have a problem making clothes for Mormons—some of her best customers are Mormons, which is how this particular Mormon came to hear about her shop. Never mind the fact that any Mormon woman worth her salt could sew a dress herself, especially for something as important as her own daughter’s baptism. Let’s say these Mormons share some kind of disability that prevents them from receiving the full blessings of self-reliance in this life. In any case, it’s not that the seamstress hates Mormons, but she does believe that Mormonism is a false religion and a cult and she can’t in good conscience sew a dress for this girl’s baptism because it might imply she endorses the child taking upon her the name of another Christ. The Mormon who can’t sew (for reasons beyond her control) feels she is being discriminated against because of her religion. After all, the seamstress sews infant gowns for Christian baptisms. But she won’t provide a dress for an eight-year-old Mormon getting baptized? What about a dress for a Jewish girl’s bat mitzvah? Has she got a thing against Jews too? Huh? The seamstress thinks this is beside the point (but just for the record, she thinks Jews are a whole other ball of string) and she shouldn’t be forced to participate (however tangentially) in an ordinance she thinks is a mockery of the real thing.

Firstmatepiggy3. A member of the Westboro Baptist Church walks into the store of a Jewish piñata-maker. (It’s kind of a long story, but suffice it to say this cat has lived an interesting life.) The Westboro Baptist guy wants to commission a life-size piñata of Gertrude Stein. The piñata-maker says, “First of all, why would you want a likeness of a lesbian sculpted by my non-Aryan hands?” The Westboro guy says, “Actually, we’re not an Aryan supremacist group. We just hate [homosexuals]. We also hate Jews but not because of their race. Mainly because they don’t believe in Christ and often work in alliance with [gay people].”

“Be that as it may,” says the piñata-maker, “I still don’t get it.”

“You’re the only custom piñata business in a hundred mile radius. All our vans are currently being used to transport members to funeral protests. I had to walk here. Anyway, it’s not like we’re going to eat the candy inside or anything. We just want to beat it with a stick and then burn it. It’s a symbolic thing. So how much would you charge for that?”



“Nothing! I’m not making you any piñata, you crazy bastard! Get out of my store!”

“You have a giant replica of Spongebob Squarepants in your front window! Don’t tell me you don’t make life-size piñatas of gay icons!”

“Spongebob Squarepants is a cartoon character. My religion doesn’t condone beating humans with sticks, even in effigy.”

“We have a constitutional right to express our religiously based hatred of Jewish [lesbians]. This is discrimination!”

“You’re a sick [fool]! Now get out before I call the cops!”

“You’ll be hearing from our attorney about this! Also, [redacted]!”

My question is how do we resolve these disputes without the special wisdom that a full disclosure of the lesbian-Muslim haircut settlement might have afforded us? How do you decide whose religious freedom trumps whose?


  1. I think some of the people in these scenarios have a tendency to overshare. Maybe things would be simpler if we kept all information on a need-to-know basis.

  2. sidebottom says:

    You’re already the top google result for “life-size piñata of Gertrude Stein” (but only no. 5 if you remove the ‘life-size’ qualifier)

  3. I have no answers, but this was brilliant!!!

  4. Denton Romans says:

    Gotta love the (within reason) of “You still have the right to your own thoughts (within reason). Says it all.

  5. Denton Romans says:

    And why exactly is it that birth control must be provided at no cost. I can’t even get life-saving medications at no cost. Or vaccines.

  6. “The case went to moderation.”

    I believe the correct legal term is “mediation.” Though, since the parties managed to resolve their differences in a manner that was satisfactory to all concerned, then maybe the case really did go the route of “moderation.”

  7. Yes, EFF, the case did indeed go to *mediation*. That is what I meant to say, but I said the other thing instead. Freudian slip, apparently.

  8. “I’m not sure of the politically correct name for a place that sews clothes to order” I just say tailor, but I haven’t used one in years in the US. They are all over Asia, under the label tailor. Many of them will get your clothes done in 48 hours. They rock.

    ““You’ll be hearing from our attorney about this! Also, [redacted]!”” Best. Comeback. Ever.

    I have to admit, the polygamy one got me. I find it so repugnant that I struggled with it in a way that gay marriage doesn’t bother me, because gay marriage feels consensual and not oppressive or sexist. Lots of food for thought here, including cake.

  9. The cake is a lie.

  10. In my mind, I differentiate between undifferentiated commodities and differentiated services. Maybe a business selling undifferentiated commodities should sell to anyone who has cash in hand (but maybe not). But differentiated services are definitely a different matter.

    A person wants a torture device. The carpenter should be able to refuse the commission.

    A person (whether male or female) wants a bikini shave. The barber (whether male or female, same or different from the prospective customer) should be able to refuse the commission.

    A person wants a large painting celebrating man-boy relationships. The artist should be able to refuse the commission.

    A person wants to produce a song celebrating _______. The vocalist and musician should be able to refuse the commission.

    A person wants a sex toy. The woodcarving toymaker should be able to refuse the commission.

    A person wants a cake to celebrate a same-sex union. The baker should be able to refuse the commission.

    A person wants a tattoo honoring George W. Bush. The tattoo artist should be able to refuse the commission.

    A person wants a banner expressing hatred for Israel as a nation and each and every Jew as a person — the graphic artist should be able to refuse the commission.

    A person thinks of him- or herself as ugly and wants cosmetic surgery. The surgeon should be able to refuse the commission.

    A couple want some photos of their intimacy. The photographer should be able to refuse the commission.

    A person wants to print a book depicting _______. The printer should be able to refuse the commission.

    In all of the above cases, the best solution is for the prospective customer to find another service provider. It’s that simple.

    Nothing here should be construed or distorted as supporting racial or sexist prejudice. The whiteness or blackness, or maleness or femaleness, of the prospective customer is not at issue in any of these examples.

    But for the barber example — well, if a Muslim barber sets up shop in a Muslim neighborhood to serve mainly Muslim men, but other men as well, well, I’m okay with him refusing a commission from a woman. He’s in business to provide a professional service to men. That’s honorable. The woman can easily find another barber. I would also be okay with a female physician or counselor limiting her practice to female patients.

  11. rameumptom says:

    It is an issue of negative vs positive rights. The Constitution and Bill of Rights give us negative rights – rights that we can have, which do not affect others. However, in the last century, positive rights have been pushed more and more. These are perceived rights that require something be taken from one person to give to another.
    In the case of the Muslim barber and the lesbian, she already has the negative right of getting her haircut somewhere. The positive right occurs when we require the Muslim barber to give up his negative right of religious freedom in order to satisfy the lesbian’s positive right of choosing the specific location and person to cut her hair.
    This same positive vs negatives rights conflict applies to forcing a group to purchase contraceptives for another (as in the Hobby Lobby case).
    In a pure Libertarian realm, every business could choose for itself just whom it would serve. If a business owner wished to be racist, it could. It just means that someone else would build another business across the street which would serve all races, and eventually drive the racist business owner out of business. At the same time, in any of your examples, the business owner should have the right to deny service, the customer has the right to go elsewhere or make his own pinata/dress/wedding cake. That is what freedom is all about. When one focuses on negative rights, then it allows freedom to fill the gaps. You may then see someone opening up a shop that caters to all these people you mention. Or one of them may open a shop of their own (the Mormon woman can hire another Mormon woman to sew for her).
    The struggle comes when government tries to dictate morality, push its own agenda, and seeks to impose positive rights on any group whatsoever. Whether it is contraceptives for college students or kickbacks for corporations, positive rights always have unintended consequences that hurt someone else, impinges on others’ freedoms, and eventually restricts everyone’s’ freedoms. Eventually, no one is happy and no one is free.

  12. I agree with ji. There is more than one tailor (people who make clothes are called that), more than one cake maker, etc. The difference is many of the cases we see today is the presence of government coercion. That changes any argument for the worse.

    Also, I find it odd as a latter-day saint reading an article by another latter-day saint an argument (which it appears you favor) is to accomodate those who oppose religious liberty, after the actions state and federal governments took against our church in the 19th century for wishing to live as we choose.

  13. wake up white man

  14. mmmmkay.

  15. jsmith, the problem comes when you have two competing policy commitments (which is exactly what Rebecca is getting at). In the US, we have a strong commitment to religious liberty. We also have a strong commitment to preventing discrimination based on, inter alia, gender, race, national origin, religion, and familial status (and, possibly, sexuality). But those two policy commitments sometimes come into conflict (again, possibly along the lines of Rebecca’s hypos). Where that happens, we can’t throw up our hands and say, “Reset!” Rather, we have to determine how to resolve these conflicts without unnecessarily trampling on anybody’s rights. Sometimes, that means religious liberty trumps. But sometimes it doesn’t. I’m not sure if there’s currently an overarching structure for determining when religious liberty wins, but it’s not immediately obvious that waving our hands and saying, “There’s another tailor,” is the right answer.

  16. Chris Kimball says:

    Mostly I enjoy the ruminations and light approach. But getting a bit serious:
    1. The religious liberty issues have been with us for a long time. There are lots of decisions and they probably don’t make anyone happy. This, notwithstanding confidential settlements in some cases, and the vast number of situations where people of reasonable good-will sidestep a problem–take another job, go down the street to a friendlier shop, carry on with business they’re not completely comfortable with, and so on. Being in the news probably depends on who is directly affected (yes to the several readings of “now that straight white Christian men are involved, let’s all pay attention”).
    2. The belief that there is a moral content, a religious duty, a “supposed to” about how you control or manage or influence other people’s behavior is at the heart of many of these issues. That is itself a particular belief and it is not shared or held in common by “religion” generally. My view is that Mormonism is equivocal on this, that we find threads of thought and teaching that go both ways. (This would be a very interesting discussion!)
    3. The issues are difficult. I feel pretty confident in saying that any simple or extreme answer proposed will not be satisfactory. Not satisfactory in the sense that I could come up with a counter-example that the person proposing the simple rule wouldn’t like (i.e., would not like the way the proposed rule works in my hypothetical).
    4. Not having made a particular study of this area, my impression is that the line drawing is not church/state (which wouldn’t be helpful because that’s the reason for a dispute in the first place), not really public/private (unless you invest a sort-of tautological meaning in “public” and “private”), and not about privileging a particular religion or religious point of view. Rather, the line drawing seems to derive from common carrier rules. There is some sense of “offering to all” (that’s what a common carrier does) that we think should not discriminate. If your business is transportation by train, or delivering electricity, or retailing food, then most people will think that discrimination (for any reason including religious) shouldn’t be permitted. On the other hand, if your business is your own personal service–time and effort–then we’re much more likely to let you discriminate for many reasons including religious. But what about personal service by and through a number of employees and equipment and intellectual property, through a business entity? It’s not quite the same as your own hands-on labor, but it’s not completely different. And now we’re to Hobby Lobby, where I disagree with the result, in legal reasoning, factual basis, and consequences, but would acknowledge that it’s not simple or obvious.

  17. Why don’t you use the example of a gynecologist who discreetly performs an abortion in the case of incest, and then, having established a precedent for performing abortions, becomes required by the courts/law to perform abortions in cases the gynecologist doesn’t find morally palatable (or lose her license)?

    Or, since we’re talking hypotheticals here, a drug company who sells drugs to hospitals but refuses to sell the same drugs to the state because they’ll be used for executions?

    Also (sort of a side discussion but related), should the hippocratic oath, attorney-client privilege, or reporters protecting the identity of sources be given any more merit than deeply held religious beliefs?

  18. Perhaps this proves that black and white thinking doesn’t work. Both sides can be correct based on their belief systems. Dogma rather than common sense causes these kind of issues. The rules versus human beings. Ideology rather than humanity. Does not making the baptism dress stop the baptism? The answer is no. Fundamentalist thinking is a problem whatever belief system. Yet it is only something that appears to be addressed by individuals if they widen their world view – and this appears to be best done internally. Live and let live – mutual respect – would help us all.

  19. I think the only decent differentiation is whether or not there are other reasonable options available – but even that would be a return to an age to which I don’t want to return.

    My own standard is the public vs. private one: If you allow “the public” to enter your establishment, you serve “the public”. If you don’t want to serve “the public”, make your establishment a private club and deal with the consequences of that choice.

  20. There is no cake.

  21. If there is one thing Canada excels at besides hockey it’s turning out good moderators. Witness the stellar work of Steve Evans lo these many years.

    ji – just out of curiosity, who in their right mind would want to buy a sex toy made out of wood from a woodcarver??

  22. The State of Maryland uses wooden dildoes in its school sex ed programs to teach children how to put on a condom. Really!

  23. There’s TMI, and then there’s WTMI. (insert whatever emoticon you want)

  24. ji: I’m with Talon on this one. That image of a wooden sex toy gave me shivers. Maybe that’s why we say “shiver me timbers.”

  25. Angela C, I seriously can’t stop laughing.

  26. Geoff - A says:

    This seems to be an American discussion. In Australia we see ourselves as part of a community. But we also have laws that do not allow discrimination on the basis of race, religion, sex, or sexual orientation.

    As someon said earlier if you provide a service to the public you can not pick and choose which members of the public you serve. Not to far back in history you could have agreement that none of the butchers in a community would serve coloureds.

    This is about community, not individual competing rights.

  27. I disagree…

    Well, I generally agree that a service provider should not discriminate in which customers it will serve — but that isn’t the question — here, the question is whether the service provider, as an artist, can be compelled to create something he or she doesn’t want to create.

    A baker will sell a pre-made cake to anyone who walks into the store, if he or she has any on the shelves. But custom-made products need the agreement of both the artist and the commissioner of the work — if there is no agreement, then there is no commission. This is a true sense of community. The other approach, that the artist is the slave of whomever offers a commission, is a gross expansion of individual rights of the favored class at the expense of the honest artist. So yes, for custom artistic work, a craftsman should be able to select which commissions he or she will accept (even if not being allowed to decide which persons he will serve). Some people may not appreciate this distinction, and that will muddle the debate as we see above.

  28. melodynew says:

    I am far too simple to engage in any critical, legal, or political analysis here, but I will say this – the examples (hypothetical and otherwise) are perfectly expressed. The problem is well-defined. The solution is beyond my grasp. And the single exclamation point is brilliant. I love this post. Thanks, Rebecca J.

  29. A butcher should serve all customers, black and white, male and female.

    But a butcher should be able to turn down custom requests from its prospective customers, even if he or she sometimes does custom requests for other customers, when those custom requests go against his or her religious beliefs. In that light, he or she might even refuse standard work. For example, a Muslim or Jewish butcher might reasonable refuse to butcher a pig, because swine are unclean to him or her. A cow or a goat? That’s fine. A pig? No.

    Any butcher might also refuse a commission to butcher a tabby cat, because it goes against his ethical (even if not religious) principles. Nothing here has anything to do with the whiteness or blackness of the customer — it all has to do with the honest convictions of the butcher.

    Also, a Jewish {or Muslim} butcher that sets himself up as a kosher or shechita {or halal} butcher should be able to refuse all customers whose work would affect the status of his shop.

    Yes, this is about community…

  30. ji,
    Many members of white supremacist organizations fervently believe that God does not want white and black folk to intermingle. Many people who weren’t in the KKK (or the south) argued that segregation was God’s will, laid out in the Bible. If we decided their religious convictions were more important than the maintenance of integration, then we might reasonably decided that we shouldn’t force them to serve black folk. However, we live in an actual historical context where their is a history (that continues into the present) of systemic racial discrimination. In that context, it should give one pause before one privileges religious belief that supports said discrimination.

    That said, I don’t know the specifics of the cake or the wedding photographer that everyone cites. I find it hard to believe that people weren’t able to resolve this without involving the courts. Of course, we should give people space to practice their beliefs as they see fit, so long as it doesn’t result in systemic discrimination or direct harm coming to another.

    Now, perhaps there is or has been systemic discrimination directed about the LGBT people in the world. If that is the case, then re-examining religious beliefs regarding LGBT-ness is probably warranted. Note I didn’t say that they had to or even ought to change, just that re-examination would be prudent.

    While I am aware of persistent Anti-Semitism in the world and while I am also aware of anti-Muslim sentiment (in particular since the period since 9/11), I am unaware of it involving food specifically (at least, not since the middle-ages). I agree with you that demanding a Muslim or Jew butcher your pork products is crass. Should such a thing ever happen, it would definitely be worthy of debate.

  31. Religious persecution stories are so over-played by the clergy of various churches and by certain media. Just because someone disagrees with a certain religious practice does not mean there is persecution, Fox News. It also doesn’t mean that the certain church is true merely because some people don’t like that particular church or its practices.

  32. Here we go again, making this a matter of white versus black — I realize that doing so helps win the argument (for the side that wants to paint the gays as poor blacks and the baker and photographer as evil Klansmen), but it isn’t an honest way to win the argument.

    To me, there is absolutely no comparison between these matters here and the white-black discrimination of Jim Crow. In these matters now, the whiteness or blackness of the customers is not at issue — the gayness of the customers is not at issue. The baker would have gladly sold the gay couple a cake off the shelf, and the photographer would have gladly taken passport photos for the gay couple. But custom artistic work celebrating something that the craftsmen could not celebrate is the matter here. Some people will not appreciate this distinction, and that will muddle the debate as we see above. that sounds familiar…

    How about this? A black videographer is approached by a white Klansman for a project to memorialize and celebrate the history of the KKK. Can the videographer decline the commission? Yes, I say. No, others here would say. What about a white videographer? Yes, I still say. I am colorblind — whiteness or blackness or gayness of the customer has nothing to do with it — it’s the subject matter of the commission. In the same way as a black or white videographer should be able to accept or decline a commission to celebrate the anniversary of the Klan, a black or white baker or photographer should be able to decline a commission to artistically celebrate a same-sex wedding. The Klansman can find another videographer in the community — the gay couple can easily find another baker or photographer. A spirit of community is all that is needed. There is no problem here for which we need a police state to solve.

  33. I’m with ji when the company is a sole proprietorship or perhaps a small partnership (or small llc that is taxed as a partnership).

    But if the business is a medium to large corporation that offers custom services, I don’t think discrimination based on personal religious belief applies any longer, and this is where the right of non-discrimination applies in the fullest sense. If a particular craftsperson or employee that works for the corporation takes personal issue with the project, they can try and work something out with their employer (perhaps have another employee assigned to that particular project) or they can leave the company if the employer is not willing to work with their private beliefs.

    So the gynecologist running a private practice has ability to discriminate between abortions he is willing to perform based on private moral belief, whereas a hospital that hires multiple doctors and enters the abortion business no longer has the right to discriminate beyond what is and isn’t legal.

    So to your examples…
    1) If this is a custom cake (that involves picturing a polygamous marriage) being done by a baker of an individually privately owned bakery, I believe he has the right to refuse the project. If the cake is not in any way differentiated from other custom wedding cakes (can’t be seen as meant specifically for a polygamous wedding), and does not have any private branding on the cake that could be seen by others as (at the wedding) as an endorsement of the polygamous marriage, then the baker does not have the right of refusal (since there is nothing inherent in his services endorsing or taking active part in a polygamous marriage (like a private photographer), he would be discriminating against the individual, not simply avoiding being part of something against his conscience). Or if this was a medium to large corporate chain offering custom cake services, it should not have the right of refusal outside the scope of the law, based on private beliefs alone.

    2) If the seamstress is a sole owner, and there is something inherent about the dress that makes it a Mormon baptism dress, then she has the right of refusal based on conscience. If it is just a white dress, there is no need to discuss that it is for a baptism, or a Mormon baptism at that, it should be a non-issue from the outset. If it is a corporation offering custom dresses, and there is something inherent about the dress that makes it a Mormon baptism dress, they should not have the right of refusal.

    3) The baptist guy doesn’t have to bring up who he is or what he will use the piñata for, then this becomes a non-issue. If he can’t close his mouth, then the small privately owned piñata-maker has the right of refusal, but if he is simply part of a larger corporation, he can be angry, but if it is not illegal I believe the company ultimately should not have the right of refusal.

  34. For SteveF’s comments:

    2) are we talking about this product?
    I can’t figure out how to purchase one from the corporation without providing proof of membership.

    3) A couple walks into a bakery (or piñata shop) and wants to buy a cake for a special occasion. Are you suggesting that if both are of the same sex (or of different races), one should wait outside in the car so the owner will assume the occasion fits his view of what is “normal”? That’s like taking off your CTR ring before shopping. Keeping your mouth closed is pragmatic, but only a temporary solution.

  35. SteveF,

    You might be on to something — maybe we can differentiate between individual craftsmen and large corporations.

  36. @Mark
    -Corporate differentiation based on membership , when membership requirements are within the law, is fair game (Costco for example).

    -To your second point, if the product they are requesting is not proof in and of itself that they will use it for something the provider is morally opposed to, and if the person does not specifically tell you what they are using it for, no I do not believe discrimination is fair on the basis of assuming something based on appearance alone. And I’d go one step further – if the product/product request itself does not provide proof/reason for discrimination, I also feel it should likewise be illegal to ask for information from the customer and then discriminate on that information that wouldn’t have been given otherwise. I think in this way it is not just a temporary solution, because there is no other way to verify a person’s assumptions (even if appearance makes something likely, it’s not proof).

  37. rameumptom says:

    Freedom means allowing people to say, think and do things that are offensive to others. Again, it is an issue of positive vs negative freedoms. The problem with Jim Crow was it was institutionalized racism and segregation. It was imposed on society by law. Without such laws, blacks and whites would have established their stores and businesses differently. Some would have continued refusing to serve those of other races, but would have lost out on financial opportunities lost by not serving blacks, and lose white customers that hated racism.
    A corporation is different than a partnership, in that it represents a variety of stakeholders (stock holders). It is in the corporations best interests to have as many clients/customers as possible, and so would be foolish to limit its clientele by using racist/sexist decisions.
    However, when government imposes its will, it creates winners and losers. We always hope the government comes down on our side. But the marketplace of ideas always tends towards more freedom and opportunity, if you let it.

  38. I left a couple of comments and realized that the spam folder had grabbed them. Ah well, rather than retype them I’ll just thank you for this thread that made me think.

  39. ji,
    I clearly miscommunicated my intent. I don’t think racial discrimination and discrimination based on sexual orientation are directly comparable. I brought it up because it is a clear example of a place where religious freedom and overall liberty conflict. We cannot expect a pluralistic society to conform to our religious views and this may result in infringements to our religious freedom so long as we wish to be a part of the society. I could have chosen someone with a belief in human sacrifice or FGM and said roughly the same thing.

    That said, the reason race is useful is because it places the decision in a historical context, specifically the context of race in America. As you know, religion has been used to justify racial discrimination (and likely still is in many places). Religion has been used to argue against it as well. So there is a question regarding whether or not certain beliefs regarding racial discrimination are necessary to consider yourself a good Christian (or some other religion). Consideration of that question helps undermine systemic racial discrimination, I think, and it certainly undermines notions of uniform religious support for it.

    As to your question of the conscience of the artisan or businessman, obviously we are dealing with a problem of first sale. Once someone has bought your wares or taken advantage of your services, they may well put it to further use that you find morally objectionable, but over which you have no say. In a strictly mercantile sense, it seems strange to want to compel someone to do something that goes against their conscience. Actually, in a strict mercantile sense, it seems impossible (unless they change their mind after agreeing to a contract or something). The only reason to consider coercion is if the matter of conscience coincides with a matter of law. Which brings us to the original point.

    If there is systemic discrimination against LGBT folk, and if this is unjust, then religious beliefs in support of said discrimination should be scrutinized. If they survive scrutiny, so be it. If there turns out to be sufficient warrant within the religion to believe other understandings are possible, then the beliefs should probably have less legal sway. But it is, of course, tricky. Matters that are strictly within the religious community are a different type than matters that affect the wider community. And there is an important balance to be maintained between wider community and religious community values in a pluralistic society. It strikes me that approaching each issue case by case, rather than coming up with universal rules of enforcement is preferable. It will make things seem more arbitrary, but it allows more flexibility, which strikes me as important.

  40. John C.,

    Your starting point is still discrimination against LGBT folk, putting them in a position of privilege and everyone else in a position of supporting that privilege. I think that’s the wrong starting point for the analysis.

  41. ji,
    I fail to see how being discriminated against makes one in a position of privilege.

  42. Your starting point in approaching/solving the matter of whether the baker must make a cake celebrating a gay marriage is the gayness of the customer. I think a better starting point is the honestly-held beliefs of the baker.

  43. ji,
    My starting point is to position the honestly held beliefs of the baker within a historical context and to consider whether or not it is supportive of unjust systemic discrimination. I am getting the feeling that we are talking past each other.

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