Religious Freedom and Religious Comfort #ldsconf

As we walk the path of spiritual liberty in these last days, we must understand that the faithful use of our agency depends upon our having religious freedom.—Elder Robert D. Hales, “Preserving Agency, Protecting Religious Freedom

Growing up as one of the few Mormon kids in a very un-Mormon part of Oklahoma, I had plenty of chances to feel uncomfortable. Usually this discomfort had something to do with my religious belief, so I gave it a much grander name than it deserved. I called it “persecution.”

For example, there was the time in 8th grade when our geography teacher was telling us that the early inhabitants of America came across the Bearing Strait, and I shouted out “NOT TRUE.” Everybody laughed at me and the teacher told me to be quiet. Or the time that I started crying in class when the history teacher recited a derisive poem about the statue of Brigham Young in Temple Square. I still remember the poem: “Here stands Brigham / High on his perch / His hand toward the bank / And his back to the Church.” It would be years before I actually saw the statue and understood.

An then there was the time when some of the kids in my high school psychology class saw The Godmakers, and we ended up devoting a whole class to the delusions of Mormonism. I was a senior then, and seniors don’t cry. But seniors get mad and go home and tell their parents to write a letter of complaint to the principal. Fortunately, parents know better.

When incidents like these occurred, I almost always found myself trying to describe them as issues of “religious freedom,” which they were not, instead of “religious discomfort,” which they were. But it just didn’t seem possible to me that the Constitution would allow me to feel bad.

I didn’t find a good answer to my teenage complaints until I was the teacher listening to them—that is, until I was teaching English 115 at BYU and a student came in to complain about the “secularist” story he had to read in my class (it was Tolstoy’s “Three Hermits” for those of you keeping track of secularism at the BYU). I said that the English department had adopted the textbook and I was required to use it. He said that being forced to read secular humanist propaganda violated his rights. I told him not to be silly; “you do not have a right to be comfortable all the time.”

Yeah, I came up with that one on the fly. But the more I think about it. The more I think I was probably on to something. I think that Elder Hales’ recent conference talk was right on target. Religious freedom is a hugely important part of our Republic, and it is a necessary ingredient of our faith. Religious comfort is not. When we confuse these two things, we end up using a very powerful rhetorical tool to defend a principle that is, ultimately, just not very important.

The 800 pound gorilla in this conversation, of course, is same-sex marriage. In the current incarnation of the public sphere, that is pretty much all that anyone means when they say “religious freedom.” So let’s go there.

Some people strongly believe, for religious reasons, that homosexual relations are immoral. Such people should not be forced to have them. Also, some religions believe that it would be sinful to solemnize a same-sex marriage. These religions should never be compelled (or even pressured) to perform them. These are genuine religious freedom issues that, I believe, we must defend.

But I am much less concerned with preventing religious discomfort. A whole lot of people are really, really uncomfortable with the idea of two people of the same gender getting married. But that discomfort does not inherently create a religious freedom issue. Nor, I would argue, does the fact that some of these people provide goods and services for use in weddings in jurisdictions that afford anti-discrimination protections on the basis of sexual orientation.

It is kind of a big deal, I think, to set aside the law to accommodate a religious belief. If laws are to mean anything, those requesting such accommodations must prove very clearly that the law substantially burdens actual religious practice. I can imagine a scenario where a photographer or cake baker could meet this standard, but it would be difficult—much more difficult than simply claiming a religious objection to homosexuality or same-sex marriage. It is not at all obvious to me that baking a cake for somebody that one disagrees with creates an insuperable burden to the free exercise of religion–no matter how much discomfort it may produce.

In his talk, Elder Hales articulated four cornerstones of religious liberty: 1) “the freedom to believe”; 2) “the freedom to share our faith and our beliefs with others”; 3) “the freedom to form a religious organization, a church, to worship peacefully with others”; and 4) the freedom to live our faith.” These are wise words and true principles.

Nowhere on the list, however, is the right to avoid discomfort–even when this discomfort arises from a religious belief. Being uncomfortable with stuff is part of living in a society that protects other people’s beliefs and practices to the same degree that it protects our own. We all have to learn how accommodate each other a little bit, even if it makes us uncomfortable to do so, if we are going to have a country that protects everybody equally. It is possible for a society based on these principles to overstep and, in the name of tolerance and diversity, burden somebody else’s religious practice unjustly. I believe that we must prevent this. It is a hill that I and many others are willing to die on.

But we must take great care that we die on the grand hill of religious freedom and not the tiny little mound of religious discomfort.

Comments

  1. Wahoo Fleer says:

    Excellent thoughts. FWIW, there’s a very good First Amendment argument that photographers should not be treated the same as other service providers:

    http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/03/18/elane-photography-v-willock-and-a-first-amendment-right-not-to-create-speech/

  2. Michael,

    Great post–but let me ask a question that I think may be important if we are to operationalize this distinction you’re introducing between liberty and comfort. Is there any way in which the mandate not to discriminate when one is involved in a public accommodation might cause such discomfort that one’s ability to freely exercise one’s religion might be interfered with? For example, it’s been generally recognized that one element of free exercise to be able to teach and model one’s faith for one’s children. So suppose you strongly believe that the recognition of a same-sex wedding as a valid marriage is against God’s law. And let’s say you run a wedding cake shop, and this same-sex couple–because they can, and perhaps for some reason actually need your services or else they would suffer a harm–sues you, under anti-discrimination laws, to publicly accommodate their desire for a cake. Your children will see you doing something you think is wrong, see the enormous discomfort it causes you, and thus your ability to model your religion as their parent has been arguably compromised. Is that, do you think, a legitimate free exercise complaint? Or is there no free exercise right to practice a religion in a culture which the practioner thinks is making it increasingly uncomfortable and therefore difficult for him to do so?

  3. Mark B. says:

    I think it’s an equally big deal to conscript people into a cause in which they do not believe. And since such conscription is not necessary to protect any person from any scintilla of harm, why do it?

    Unless, harm is defined as something even less troubling than the discomfort you suffered when Brigham Young was teased and your religious beliefs are said to be delusional. And thus we see that your argument swallows itself–since nobody has ever claimed any harm greater than the discomfort of being told by a certain vendor that, like Bartleby, he would prefer not to. Do you really suggest that we should force someone to do business with someone else simply because of a discomfort more trivial than yours?

  4. Nice post, Mike.

    Mark,

    Do you really suggest that we should force someone to do business with someone else simply because of a discomfort more trivial than yours?

    Absolutely. That’s precisely what the Civil Rights Act of 1964 does, as far as I understand: it requires people in certain covered fields (including public accommodations) from discriminating based on, among other things, race, gender, and religion. The thought seems to be that, whether or not an individual act of discrimination represents mere discomfort, as a systemic matter, it represents a real problem. (And, I should note, discrimination may be trivial in your community and mine—big cities with plenty of other options—but there are communities small enough that the market may not be there for alternatives to the discriminatory business.)

    Russell, even assuming the owner of a public accommodation has an unavoidable religious mandate to not do business with a gay couple, I don’t think that nondiscrimination norms would interefere with that. What it can do is raise the costs of discrimination: by refusing to do business with the gay couple, they open themselves to civil lawsuits, but I suspect those suits wouldn’t generally end in an injunction, but in money damages.

    And even if they ended in an injunction, the business owner could get out of her public accommodation business. I realize that this is a tremendously costly move, but it is, nonetheless, an option. And, if necessary to salve one’s religious conscience and beliefs, it seems like a viable option. (In my field, if you’re representing somebody and that representation would require you to violate your ethical obligations, you’re required to withdraw your representation, notwithstanding the lost money.)

  5. maustin66 says:

    Russell: Your children will see you doing something you think is wrong, see the enormous discomfort it causes you, and thus your ability to model your religion as their parent has been arguably compromised. Is that, do you think, a legitimate free exercise complaint?

    I think that everybody should have a right to make that case, but I think that, in practice, it will be a very difficult case to make. Of course, this assumes a jurisdiction where discrimination on the basis of sexual orientation is against the law (in other jurisdictions, my particular framing is not at issue). In such a case, then I think that one must make a very compelling case that the religious burden one suffers justifies an exemption to a law that was passed without the intent to target a religious belief.

    Mark B: “Do you really suggest that we should force someone to do business with someone else simply because of a discomfort more trivial than yours?”

    Forcing someone to do business with somebody they don’t like is the business of anti-discrimination laws. In am merely suggesting that (as with all laws) a person asking for a religious exemption has to meet a very high burden of proof that the law is incompatible with their religious belief. This is pretty much how “the rule of law” works.

  6. Mark B. says:

    Sam and maustin:

    It stretches the meaning of “public accommodation” into complete meaninglessness to assert that a baker or a photographer is somehow a public accommodation.

  7. Sam,

    And even if they ended in an injunction, the business owner could get out of her public accommodation business. I realize that this is a tremendously costly move, but it is, nonetheless, an option.

    I think this is a hard, but nonetheless important and correct response to the broad question I put to Michael. The plain fact is that, throughout the 20th century (and perhaps, depending on whose history you most trust, even since the founding of America), there has been a generally Protestant Christian civil religion which became entwined in all sorts of perfectly ordinary operations of government and the marketplace. One of the results of this, though not one often commented upon, is that it resulted in devout Christian traditionalists feeling far more “comfortable” with America’s increasingly pluralistic civil society than one might have expected them to feel otherwise. Perhaps the most important aspect of what Michael rightly notes as the 800-pound gorilla in the room is that, by recognizing marriages which many sincere believers honestly hold to be impossible and invalid before God and man, the state (especially our contemporary liberal state with all its protections against discrimination) has made them deeply uncomfortable, perhaps to the degree that they really will think it necessary, for conscience’s sake, to get out of the “perfectly ordinary operations of government and the marketplace” as much as possible. This phenomenon is nothing new, of course; the Amish have been operating a parallel society alongside secular America for more than 200 years. But now, perhaps, tens of thousands of conservative evangelical Protestant and traditionalist Catholic tax accountants and car mechanics and cake decorators are going to feel a need to do the same thing. “Comfort” is that important a concept, I think.

  8. Great post!
    Elder Hales expanded on what he meant by Religious Liberty Cornerstone #1 – The Freedom to Believe: “No one should be criticized, persecuted, or attacked by individuals or governments for what he or she believes about God.” The idea that our religious liberty protects us from being criticized seems way off the mark. Even in the LDS church, our religious leaders often criticize and “course correct” beliefs about God that aren’t in harmony with official teachings.

    I appreciate the pains you took to differentiate freedom from comfort. Based his actual words though, do you think that’s what Elder Hales meant?

  9. Mark B., many judges disagree with you. Therefore you are wrong.

  10. And Mark, neither of us made that assertion. We simply said that anti-discrimination laws can and do require people to do business with people whom they’d rather not engage with. The most obvious example is in the public accommodation space.

  11. maustin66 says:

    Amy, giving Elder Hales the benefit of the doubt here, I believe (and sincerely hope) that what he meant was that somebody should not be criticized in a formal, state-sanctioned way for what they believe–something like, say, an official declaration from Congress stating that Mormonism is a lesser religion. I can’t imagine that he meant that the principles of religious freedom should prevent anyone from ever being criticized for their religious beliefs or practices, since, as you say, that would dramatically curtail the freedom of other religions to criticize ideas they disagree with–not to mention that whole freedom of speech thing. Anyway, that’s the story I am sticking with.

  12. Good post, very thought-provoking.

    However, in an ongoing effort to ferret out false “doctrine” (though there is an ongoing debate about just what constitutes “doctrine.’), I take issue with the opening quote, “As we walk the path of spiritual liberty in these last days, we must understand that the faithful use of our agency depends upon our having religious freedom.—Elder Robert D. Hales”

    Agency (in the LDS context) is not “freedom of choice.” Agency is limited to those intents and actions that alter our character (our righteousness). Agency does not require any freedom. You have it when living in prison or under a repressive dictatorship, for example. If you are free to choose regular or extra crunchy chicken at KFC, or whether to vote for or against laws regarding discrimination, that is not Agency.

    Just sayin…And, no one should respond, as that would jack the thread.

  13. Mark B. says:

    Steve Evans: Oh, dear. Well, either they’re idiots or part of the great left-wing conspiracy.

    Michael: Your addition of the phrase “with somebody they don’t like” fudges an important distinction. There’s never been any suggestion of personal animus toward people who are gay (or refusal to serve gay customers) by the businesses that have declined to participate in same-sex marriages.

    And, you have not explained how your entire argument is not swallowed up by the “just suck it up and be uncomfortable–you’ll survive” instruction you give to those who seek to exercise their religious rights.

  14. maustin66 says:

    “And, you have not explained how your entire argument is not swallowed up by the “just suck it up and be uncomfortable–you’ll survive” instruction you give to those who seek to exercise their religious rights.”

    I actually answered this question very clearly–it was the “rule of law” thing I said. When somebody argues that their religious belief entitles them to break the law–in this case the law forbidding discrimination–then the issue moves well beyond the comfort level of the individual being discriminated against. What is at stake is the rule of law itself. It is foundational to that rule that one cannot simply choose which laws to obey or disobey based on what one claims to be a religious belief (or that, if one does, one accepts the legal consequences of the action). I do believe in creating narrowly tailored exemptions to recognize actual free exercise claims. But, for reasons that go very deeply into how I understand law to work, I think that those requesting those exemptions have to meet a very high burden of proof.

  15. I’m sorry but I didn’t understand your “rule of law” statement to answer my question. Since the First Amendment, with its guarantees of religious freedom, are part of the Constitution, which declares itself to be the supreme law of the land, I should think that upholding religious liberty claims are as much the rule of law as upholding equal protection claims. So you’ve simply begged the question–or else declared that you think that the discomfort suffered by someone who has to call a second baker is of more significance than the discomfort suffered by a person who has to join in the celebration of something that his faith declares is an abomination.

  16. RAF: “Your children will see you doing something you think is wrong”

    Correction (and the entire point of the post!): they will see you doing something that makes you uncomfortable. They will not see you doing something you think is wrong. RAF, it sounds like you are saying people have an affirmative right to teach their children that they have a right to be comfortable all the time, and that illustrating for them that they do not have that right is a violation of their rights. It sounds like you really didn’t internalize the post’s argument.

  17. Cynthia’s right. Being forced to get gay married (while your children watched) would indeed be a violation of religious liberty. But since no religion of which I’m aware makes baking cakes or taking pictures of *sinners* a sin, it’s not religious liberty, but religious discomfort at play in these cases.

  18. RAF, I have a thought question for you: imagine a hypothetical situation in which there is some employer that will not hire you if you could be “convicted” of supporting gay marriage (with some medium-low-ish “preponderance of evidence” level of proof). Now lets say that your previous employment was in a family business bakery and one of the orders you fulfilled was for a 3-tier wedding cake for a gay wedding. Does that constitute evidence that could “convict” you? Could you just say, “Come on, I made a 3-tier cake, our state has anti-discrimination laws, it doesn’t in any way evidence support of gay marriage!” How do you think most observers would interpret the situation–that you may or may not support gay marriage but having put white frosting on a baked good is not evidence either way? Or that it is perhaps not silver-bullet conclusive, but certainly evidence that you personally support gay marriage? Something else?

  19. Personally, I don’t see how baking a wedding cake is such a big deal. At the same time, I think it is a big deal for the state to punish you for refusing to bake someone’s wedding cake. When it comes to your religious conscience, it doesn’t matter how others perceive the service you are selling; it matters how you yourself see it. Now, if you’re a doctor and feel it violates your religious conscience to treat gay patients, you’re probably in the wrong profession. (You not only don’t get what it means to be a decent person, but you’re also unclear on the concept of “being a doctor.”) But baking and photography are not matters of life and death. Gay couples will still be able to get married even if no one is willing to bake them a cake or take pictures of them, but regardless of where in the U.S. they live, they will probably be able to find a professional who is happy to take their money. (In fact, they will probably be able to find several.) Why is the gay couple entitled to have a wedding cake made by an unwilling baker? So they won’t be inconvenienced by having to visit a second bakery? Yet a baker is not entitled to avoid “religious discomfort” (not necessarily an accurate description of the baker’s experience). I’m not aware of a constitutional amendment covering consumer comfort.

    As I said, I don’t think baking a cake is such a big deal. I also don’t think looking for another baker is a big deal. More to the point, I don’t see why you wouldn’t rather have your cake baked by someone who wants your business. Personally, I’d rather live in a society where the baker is free to refuse to bake me a cake because he doesn’t like Mormons or women or my face, and where I am free to go to another bakery where I don’t have to wonder if the guy’s going to spit in the frosting, and also where I am free to tell my friends and neighbors that the baker is a jerk and they should get their cakes from Tolerance Is Tasty! down the street instead. Forcing everyone to pretend to be on board with gay marriage by threat of legal punishment does not make a more tolerant society. At the risk of sounding like a broken libertarian record, this sort of coercion is much more divisive than letting the free market take its course, and moreover, it’s totally unnecessary.

  20. Cynthia,

    RAF, it sounds like you are saying people have an affirmative right to teach their children that they have a right to be comfortable all the time, and that illustrating for them that they do not have that right is a violation of their rights.

    Correction: I’m not saying, “people have…”; I’m saying, “Is there any way in which…?” In other words, I wanted Michael to explore a hypothetical situation to better understand where he thought “comfort” stands in relation to the vexed problem of respecting discriminatory beliefs in the pluralistic society. Your response is in line with his, I think; that is, that if the exemption one is seeking from a law which you see as interfering in your ability to pass along your religion to your children (a right which was recognizing in Wisconsin v. Yoder, giving Amish families an out from compulsory school attendance laws) is grounded is “discomfort” alone, then it almost certainly won’t stand the compelling test standard.

    Does that constitute evidence that could “convict” you? Could you just say, “Come on, I made a 3-tier cake, our state has anti-discrimination laws, it doesn’t in any way evidence support of gay marriage!” How do you think most observers would interpret the situation–that you may or may not support gay marriage but having put white frosting on a baked good is not evidence either way?

    That’s actually a really interesting hypothetical. (And not ridiculously unlikely either; I know of a situation where an applicant for a position at a conservative Christian university was expected to account for previous work experience they’ve had at notoriously “secular” schools.) I actually am unsure how far actions taken in response to anti-discrimination statutes would be accepted in such a situation. Going back to the point I made in a comment above, I think many of these sorts of situations are at least partly the result of the fact that, for a long time, genuinely “illiberal” religious groups–highly religious conservative Protestants and Catholics, in particular–have nonetheless felt themselves entirely safe and at peace with the ordinary operations of the state and marketplace in America. Anti-discrimination statutes obviously interfered with some of that, with dead-set segregationist churches and religious schools finding themselves facing deep hostility and all sorts of financial complications, but most other non-liberal religious groups continued on just fine. Rules about discrimination didn’t interfere with them conducting their business exact the way they felt fit. The anti-discrimination statutes that are likely to rise now–and especially after the Supreme Court almost certainly rules in favor of same-sex marriage this summer–will cause real consternation for these groups…and because the statutes in question would be the law of that land, discriminating against hiring someone because they adhered to them would itself be invidious discrimination! More reason to suspect, I think, that this sea-change is going to result in even more religious traditionalists sealing themselves off from ordinary government and marketplace transactions.

  21. Rebecca,

    Now, if you’re a doctor and feel it violates your religious conscience to treat gay patients, you’re probably in the wrong profession. (You not only don’t get what it means to be a decent person, but you’re also unclear on the concept of “being a doctor.”) But baking and photography are not matters of life and death.

    True, but between being a doctor and being a cake decorator is a big grey area. Where does “public accommodation” begin, and where does it begin? Does it matter if one’s location or economic situation makes it difficult to get anyone else to provide the cake? Or maybe makes it literally impossible? Or are some commercial operations simply, be definition, never “public accommodations”? The law here is pretty broad and undefined, sometimes purposefully so.

  22. Rebecca successfully swatted down the straw man of the doctor who won’t treat gay patients. I rather wish she had explained what role the doctor plays in a gay wedding, and how that role requires him to violate his conscience by joining in celebrating it.

  23. I apologize if I missed this argument elsewhere, but has anyone addressed whether we really need public accommodations laws–at all–anymore?

    This isn’t civil-rights era America, where an entire race was being systematically denied basic accommodations like food and shelter. Modern instances of discrimination are de minimis compared to those days. That’s why we’re forced to keep talking about the small handful of bakers, photographers, and pizza-makers that are engaging in some form of discrimination–discrimination that results in gay couples having to take their cake, photography, and pizza-catering needs to one of the other tens of thousands of establishments who will willingly serve them.

    And the marketplace is poised to quickly and fiercely weed out such businesses, with the advent of social media and a news media that is hot to trot on these stories. Simply put, I seriously doubt the need for public accommodations laws anymore. There is no wide-spread (or even minimally-spread) effort to deny gays any type of service, let alone crucial services. This issue is much larger in theory than it will ever be in reality.

  24. Mark Brown says:

    What we need to remember is that a significant portion of the racism in America’s history was driven by sincere religious belief, and preached from pulpits in Christian churches. So it would be useful for us, I think, to move this entire discussion away from gay marriage, and instead engage the question against the backdrop of racial exclusion.

    If I ran a lunch counter in Greensboro, NC in 1960, would my sincerely held religious belief that God intended the races to be separate justify my policy of refusing to serve black people? After all, there are dozens of other places where black people can buy a sandwich.

  25. DCH: “Modern instances of discrimination are de minimis compared to those days”

    I know a few million people of color who would disagree with you.

  26. Mark B. says:

    RickH: You completely missed the point I was making. But you’re in good company–nearly the entire Indiana mob action against the pizzeria was based on the same misunderstanding. I don’t know if it was ignorant or willful, but like most mob actions it was at least temporarily successful.

  27. I don’t understand the Bloggernacle’s apparent decision that every time a Mormon cries “persecution,” he’s wrong.

    It’s hard to imagine a legitimate reason for a school teacher to recite a ditty ridiculing Brigham Young or any other figure a child might identify with. (At least, you don’t indicate that the teacher explained his recitation in any way that made it a legitimate history lesson.) Ridicule — mockery — humiliation are more than “discomfort.” An adult indulging in mockery in that setting, when a child isn’t mature enough to understand why he is crying, or sophisticated enough to defend himself or his religion or his respect for the person ridiculed, is doing more than making the child uncomfortable. It *is* persecution. It’s a mild form, perhaps, but it’s real. Maybe some of us do go to an invalid extreme in labeling anything and everything we don’t like as persecution, but pretending that *nothing* is persecution goes too far itself.

  28. FarSide says:

    Michael, since you have no compunction about compelling a wedding planner to service a gay marriage notwithstanding her sincere belief that such unions are contrary to the laws of God, are you also prepared to support a law that would require a Jewish printer, who is the child of a Holocaust survivor, to fulfill an order placed by the American Nazi Party which needs some flyers for its next rally? Bear in mind that there is no issue of religious belief in that situation since, to the best of my knowledge, Judaism doesn’t bar its adherents from doing business with their enemies.

  29. Mark: if we’re talking about whether a sincerely-held religious belief should provide grounds for denying service under any circumstances, then your re-framing of the conversation towards race is fair. There isn’t (or shouldn’t be) a constitutional difference between a restaurant owner who, among many others, denies a black customer service, and a baker who, going it relatively alone, denies service to a gay couple. Legally/Constitutionally, the scale and context shouldn’t make a difference.

    But if we’re speaking about the practical, modern-day effect of accommodations laws, then I stand by my original post. They’re being rendered useless by (1) a society that is, by and large, far more accommodating of all people; and, (2) a marketplace that stands ready to weed out these businesses.

    Steve Evans: I should have been clearer in my OP. Modern instances of discrimination in the public accommodations context are de minimis compared to those days. Do you disagree? Can you point me to data that suggest that minorities (whether by race or sexual orientation) are experiencing a public accommodations denial similar in scale to what blacks experienced during the 60’s? If we are, I’m unaware of it. My strong hunch is that we’re not. And while I won’t deny that discrimination still exists, I must be missing all of the news stories about minorities being systematically denied public accommodations. Maybe you, or one of your million “colored” acquaintances, could point me in the right direction.

  30. maustin66 says:

    FarSide: To my knowledge, no American jurisdiction currently counts Nazis as a protected class, which makes all the difference in the world in the argument that I have made. The issue is not, “can somebody be compelled to support a gay wedding,” but “can religious (or other) discomfort that does not rise to the level of burdening religious practice excuse somebody from obeying an existing law?” Where sexual orientation is protected by civil rights legislation, then, in practice, requiring somebody to obey anti-discrimination laws can indeed have the effect of compelling them to participate in a wedding (which, by the way, is not the same thing as a “marriage,” and this distinction can actually be fairly important to the argument you are making). However, if there is no anti-discrimination law on the books, then the question of compulsion is irrelevant. Again, to my knowledge, there is no law on the books anywhere in the United States (or Canada) that makes Nazis a protected class.

  31. DCH: are prisons and jails public accommodations? What about the police force? You need look no further than rates of arrest, incarceration, killings by police or executions to see that yes, discrimination still exists on levels similar in scale to what blacks experienced in the 60s.

  32. symphonyofdissent says:

    Being made fun of, criticized or questioned for your faith qualifies as religious discomfort, to be required to violate your conscience at the threat of losing your job or license, being fined, or potentially even being prosecuted by the state is religious persecution. I think your argument fails to distinguish between the two. Your first examples are all mere discomfort, but the loss of livelihood faced by those bakers, photographers or florists that do not want to cater to an even they see as sinful is far more concrete and falls under the category of persecution.

  33. SilverRain says:

    If the logic you present is reasonable—hat no one has a right to not be uncomfortable—surely that logic applies both directions. If a baker doesn’t have a right to not decorate a cake for a gay wedding simply because it makes them uncomfortable, neither does a gay baker have the right to refuse to decorate a cake filled with anti-gay hatred. Or a black baker to decorate a racist cake.

    The difference between this and the era of Jim Crow laws is the law: There were laws that enforced segregation. Extreme measures had to be taken to change patterns that had been established. That’s not the case, now. There is no law that forces segregation. It is entirely in the hands of individuals.

    It sounds all pretty to say “these guys are jerks, so we should make them behave nicely,” until it’s your morals that the majority suddenly thinks are asinine. That’s the thing about morals: you can’t have a standard, and yet have everyone meet it. Ultimately, this is a bid for the removal of personal agency from the public sphere. Those who support it now will have cause to regret it later, I predict.

  34. FarSide says:

    That’s a fair point, Michael. But there is a larger question here that we cannot ignore, to wit: whether the current trend in this country is to set the bar insuperably high for those who raise religious objections to being forced to provide services or affirmatively act in a particular manner. Ross Douthat recently authored an excellent opinion piece on this topic in the NYT. In it, he posed the following question:

    “Should religious colleges whose rules or honor codes or covenants explicitly ask students and/or teachers to refrain from sex outside of heterosexual wedlock eventually lose their accreditation unless they change the policy to accommodate gay relationships? At the very least, should they lose their tax-exempt status, as Bob Jones University did over its ban on interracial dating?”

    I don’t think it is hard to imagine BYU being on the receiving end of such an inquiry.

    I know the phrase “slippery slope” is frequently abused in discussions such as these, but the pace at which these changes in the law and society’s attitudes is taking place is nothing short of breathtaking. And somewhat disconcerting.

    I actually agree with you on the wedding planner example. I am concerned, however, that the zeal with which arguments are being embraced in support of the LGBT community may encroach upon religious and other liberties. You may say that you are prepared to draw the line at forcing a minister to perform a gay marriage, but there are many who are equally prepared to ignore such distinctions in favor of compelling religious organizations to conform to their right-way of thinking. To anyone who says, “that will never happen,” I would reply: “It will if we are not vigilant.”

  35. RAF, thanks for your reply. The reason I am interested in the hypothetical is not because I worry about someone being convicted and not hired by that employer, and whether that is itself actionable discrimination, though those are interesting questions. The reason I formulated the hypothetical is because, as Marsha said, I think it’s not really in dispute that literally nobody thinks that baking a 3-tier cake is in itself a sin, regardless of who pays for it or who eats it, or even if you put a gay couple figurine on the top.

    So what is at stake is the possibility that a church exists where their strongly held theology is: “being perceived as supporting gay marriage is a sin.” The courts say we can’t scrutinize theology, so, fine, let’s take that theology as given. Here’s the rub, we *can* scrutinize whether a particular action will, in our nation’s social environment, be interpreted by a reasonable observer as evidencing support of gay marriage. That is not specific to the theology, that is a statement about how people in general interpret an action.

    My hypothetical was an attempt to do this scrutiny–does a reasonable observer interpret a business following the anti-discrimination law of the land to bake a tiered cake as personal support for gay marriage on the part of the baker? I feel like the answer is no.

  36. If I ran a lunch counter in Greensboro, NC in 1960, would my sincerely held religious belief that God intended the races to be separate justify my policy of refusing to serve black people? After all, there are dozens of other places where black people can buy a sandwich.

    If the question is whether or not you’d be legally justified, the answer is of course you would because you had Jim Crow laws mandating racial segregation, which would bolster that flimsy religious freedom argument.

    It’s tempting to compare the marriage equality movement to the black civil rights movement, but it’s not fair to treat them as equivalent just because there are similarities. You can argue for marriage equality effectively without co-opting the historical persecution, disenfranchisement, and enslavement of black Americans. So far, to my knowledge, the media has only covered stories about business people denying services to gay couples in relation to their marriages; I have yet to see a story about a business owner arguing they should be allowed to refuse to serve gay people period. (You may view their insistence that they’d be happy to provide birthday cakes for gay people as disingenuous, but has a gay person ever ordered a birthday cake from them and been refused? Probably they served a lot of gay people without ever knowing it, but is there any evidence they would have cared one way or the other, or are they guilty until they’re no longer free to choose otherwise?) There is the story about the pediatrician refusing to take a gay couple’s baby as a patient. I think that’s a morally indefensible position, but just practically speaking, wouldn’t you say that couple dodged a bullet?

    The fact that such people are a distinct minority of the American public is a relevant point. We are not in the process of going backwards on civil rights for gays. Is it really not enough that gay marriage opponents are publicly demonized for their beliefs? Do we really need the government to fine them just to make extra-double sure all the people in favor don’t change their minds? Maybe they should also be re-educated, as long as we’re disturbing their non-constitutionally protected comfort. A business owner who discriminates against gay couples might do fine despite their refusal to offer wedding-related services, especially if they’re in a religiously conservative community, but a business owner who doesn’t discriminate is going to do better. In the 21st century, which this is.

  37. Geoff - A says:

    I think the initial blog makes a good point. In order to cope with the church I have concluded that the church is made up of the Gospel, programes designed to help us live the Gospel, and conservative american culture being taught as Gospel.
    This debate is in the last group. There was a time when the church had teachings about which sexual positions were acceptable for hetrosexuals. This was not eternal, but conservative culture of the time.
    Our attitude to gay people, and gay marriage, is nothing to do with the Gospel, purely conservative politics.
    So we are talking about the conservative view of the world verses the profressive view. There is no moral question, there is no revelation from God.
    The fact that so much of conference was taken up with it is worrying. Until the church can weed out the conservative politics, and teach the pure Gospel we are very limited in our appeal. We are effectively stalled/ stopped/dammed, by this and similar.
    Do you ever hear Uchtdorf support this view, or does he teach the Gospel without the conservative culture.

  38. Geoff - A says:

    Progressive not professive.

  39. Steve: Once again, you’re dodging my main point: that minorities are not being denied public accommodations at the same level they were during the Civil Rights era. And no — prisons, jails and the police force are not public accommodations. They are public services. The distinction is key. Public accommodations are about access. Jails and the police force serve an entirely different purpose, and your failure to grasp the distinction makes me wonder whether this conversation is worth pursuing with you. You’d clearly rather talk about kill and incarceration rates — both timely and important issues (and one on which we might actually agree), but neither of which have anything to do with the topic of religious freedom and the interplay with public accommodations laws.

  40. Geoff - A says:

    Nearly all the problems in church history are the result of leaders who taught their political views as if they were Gospel.

  41. madhousewife, I think non-discrimination laws do cause a significant and interesting change in dynamic here, namely, they create an environment where baking a cake does not evidence personal support for gay marriage in the same way that doing so absent a non-discrimination law might. So it actually frees up some religious people to not discriminate because their primary concern in the first places that they didn’t want to give the appearance of supporting gay marriage, and now they’re not. Everybody wins!

  42. Mark Brown says:

    Madhousewife, I agree that bringing race into the discussion might seem like swatting flies with a sledgehammer but that is not my intent. My point is only to demonstrate that we have a lot of very recent, very ugly history that was a result of allowing sincere religious beliefs to be a reason to exclude people. I think we have an obligation to think it through carefully.

    I will also freely admit that my opinion is influenced by my current residence. There is some vestigial, undisguised racism hereabouts, and it is disturbing that folks who harbor those views are also the ones most inclined to appeal to freedom of religion in order to justify their contempt for homosexuals.

  43. DCH, I’m not dodging anything. You’re the one who believes that discrimination is a thing of the past. You started that discussion. Now, to avoid the issue, you want to just focus on bakeries and pizzerias, but the whole issue is inseparable. You cannot pretend that somehow public accommodation laws are not needed, simply because black people can eat at the same Dunkin Donuts as you, when the examples of persecution and hatred towards blacks are rampant everywhere else. Stop pretending that all is right in the world, then maybe people will care about your finer points around religious freedom and the interplay with public accommodations laws. For now, you’ve ruined your ability to be taken seriously on any of these issues.

  44. As one who is in the Mormon culture but not of it, I find it odd that we are not on the forefront of defending others with whom we hold differing views. We do not seem to have learned from our own history of persecution. Being the target of an extermination order by the head of the state, on the basis of our religion, is religious persecution. Being Jewish targets of the Nazi regime is religious persecution. The Nazis afforded the same treatment to homosexuals, lesbians, communists, the handicapped, etc. American Jews have a track record of defending targets of religious persecution, as they are well aware how rapidly hate captures the human psyche, and once combined with the power of the State or of a powerful Church, fear can overtake otherwise reasoned human judgment. Instead, Mormons see threats, clinging to our collective identity as Victims. No matter what, people are against us. And so we defend the baker who abhors setting a bad example for her children by baking the wedding cake–instead of asking ourselves: why isn’t this talked about as setting a GOOD example for children? Of demonstrating to children the ability to see the Children of Heavenly Father in the gay couple?

  45. Refusing to bake a wedding cake for a gay couple is such a petty, spiteful act–not only is it rude, but it reminds the couple that, yes, there are still people who don’t consider them fully human. It’s a cruel way to put “those people” in their place, an act of hatred unworthy of those who claim to follow Christ.

    And worse yet, people like Mark B. and FarSide take such joy in their pseudo-righteousness. Instead of expressing sorrow at the “laws” that they believe prohibit them from sharing the joy of a gay couple being married, they take pride in rejecting such couples.

    They also reject those who think that gays deserve to be treated as neighbors. Which, actually, I appreciate, since it tells me that the Mormon church is not for me.

  46. Doug, try not to overblow things, man.

  47. I really am torn on this issue. I do think Jesus would have just baked the cake, but I don’t think he would have constrained all of his followers to do likewise. (Counseled, yes. Ordered, upon threat of fine or imprisonment, no.)

    I tend to take the radical libertarian view on this one – a private business-owner should be free to be as big a damn fool as his/her conscience can stand.

    A business is only a “public accommodation” because the law has defined it as such; the only reason the law was written that way was to give the government a lever to disallow discrimination and compel certain behaviors by private businesses. This is circular and fundamentally specious, and it makes it ludicrous to hang one’s hat on the “public accommodation” definition. Changing something’s name to give you the “right” to order it around doesn’t change the nature of the thing. A business-owner chooses to “serve the public” because the public has money to spend, pure and simple.

    Note that a private company is quite different from a government entity. A government baker, if such a thing should exist, should bake a cake for any comer – gay couple, Kluxxer, even a member of Congress or other unindicted criminal.

    Whether or not a given individual’s actions are stupid or shortsighted or wrong or even counter to her own interests is not at all the same as saying they should be illegal. Ultimately, we’re never going to agree on what constitutes “moral” or “immoral,” and so those decisions, if they become law, will be imposed upon the politically weak by the politically strong, at gunpoint. Fine if you’re the top rail; not so nice once the tables are turned.

    And I may be splitting hairs, but liberty is a matter of splitting hairs. There is a world of difference between what Jesus, Inc., Messianic Carpenter, might have actually done “of his own free will and choice” vs. what he was legally compelled to do.

    I think Jesus would bake the cake. I would bake the cake. I think those who wouldn’t are a little silly, and certainly poor businesspeople. But I defend their right to be that way. I would not coerce them to act correctly; I would convince them to feel and believe correctly – “by persuasion, by long-suffering, by gentleness and meekness, and by love unfeigned; by kindness, and pure knowledge, without hypocrisy, and without guile.” I trust that will drive their actions.

    If it does not, I will recall that I am in the business of winning souls, not in the business of compelling behavior.

  48. AnnieKC says:

    I too would bake the cake, for the sake of my children, and not charge anything for it. That said,while private business is not like government agencies (as well we know form the fast-growing private prison industry, if nothing else!), we should acknowledge that business does benefit from the government help. Such as: tax benefits, highway system, educated workforce, clean water, public safety, and on and on. Companies routinely assess relocation choices on such public goods criteria. That said, I would find New Iconoclast’s arguments compelling IF: 1) centuries of struggle by African Americans (many of whom raised the children of white families!) had brought about a good result without the Civic Rights Act. It did not..People were lynched. By Christians in White Robes, using religious arguments. 2) Mormons would stop complaining about their treatment here in Missouri nearly 200 years ago (some of which–let’s be honest–we brought on ourselves), bemoaning the fact that Governors and the US President did not intervene or protect them, and they were literally run out of the country. This was tragic and a terrible plight. But today, we 21st century Mormons cannot have it both ways.–complaining about our oppression then, and denying people their rights now because, again, we are oppressed.

  49. “I am in the business of winning souls,” says New Iconoclast.

    No, winning souls is not a business. And liberty requires so much more than trusting a business owner to do the right thing. It’s just depressing to read this kind of argument that willfully ignores the idea of a collective good.

  50. Be depressed if you want, Tom; I might be able to recommend a good therapist. Perhaps it’s because you’re too literal – of course winning souls is not a business, at least not in our church. But in our strong and mostly laudable desire to achieve “proper” behavior, part of which is an understandable skepticism of others’ motivations and likelihood to do what we consider to be the right thing, we humans are often prone to err on the side of coercing them, on the grounds that we allegedly know what’s best. Thinking we have the key to the “collective good” has a whiff of arrogance and not a little hubris.

    Liberty requires, simply, giving people liberty.

    We may have a good idea what the outcome should be, but as a race, we have a pretty terrible track record as to the means achieving those ends. As well, He who should be our example used a very personal, very individual approach. You’ll search far and in vain to find a NT reference to the “collective good” or anything like unto it that was created in any way other than as the aggregate of individual principled actions.

  51. Wow! I didn’t realize followers of Christ should be against anti-discrimination laws. I didn’t catch that in the New Testamenf. Thanks New Iconoclast!

  52. I’m in favor of the distinction that was drawn on Sunday night’s the Good Wife episode (if I may): a baker may not refuse the creation of a generic wedding cake no matter what the couple. But refusing to make a cake that says “I hate jews” is protected by the 1st amdendment because it is speech. For me the toss up is with photographers – I could go either way. But when it is a generic “work of art” (cake) that you would have made similarly for a hetero couple? No go, man. Make the cake.

    And I agree partly with New Icon, Jesus would have made the cake. Maybe two.

  53. Al Go Rhythm says:

    I didn’t know Jesus was in the business of celebrating our sin–with cake or crumpets or anything else.

  54. So you didn’t mean it literally, New Iconoclast? Zonkers, now I see it! Thanks for the explanation.

    Seriously, though, liberty is a lot more complicated than you wish it were. And you don’t have to have “the key” to the collective good in order to strive for it. We’re all in this together. That’s what building Zion is about.