I deeply appreciate the discussion in the comments on my last post. The tangled relationship between anti-discrimination laws and religion is a subject that is worth some real thinking.
Some people are wrestling with how selling a cake got to be a constitutionally (and statutorily) protected “exercise of religion.” There’s a reason this is confusing. Religious believers themselves have never really been able to articulate the connection.
I think the problem began back in the 1990s, when religious landlords first began claiming they were exempt from state laws prohibiting marital status discrimination. In 1996, I represented a heterosexual woman in the first California Supreme Court case to deal with the exemption (Smith v FEHC). The religious landlady objected to unmarried couples living together, but California law prohibited marital status discrimination in housing. The landlady’s claim was that by renting her property to people who were obviously sinning (there was no proof of any sexual activity, and she never tried to provide any, but the court accepted the obvious implications), she was “facilitating” their sin. And in her mind, this was, itself a sin. So the law was forcing her into participating in the sin her tenants were committing.
This was a novel idea. Previously, court cases had tended to focus on things that a religion mandated or prohibited (such as working on the sabbath, forced public schooling, etc.). But in Smith, the landlady’s claim of “facilitating” the sins of others by engaging in commercial activity was neither. While she provided testimony that one branch of her religion (Presbyterian) thought that facilitating the sins of others was, itself, a sin, another, much larger branch of the same religion disagreed and felt that abiding by general laws like this implicated no moral condemnation.
The problem is that courts can’t go around deciding contested theological questions. They must exercise an almost complete acceptance of any religious belief, as long as it is sincerely held (which Mrs. Smith’s was). The U.S. Supreme Court has been very clear about this: A religious belief “. . . need not be acceptable, logical, consistent, or comprehensible to others in order to merit [free exercise] protection.”
I argued that the protection of the “exercise of religion” ought to be cabined by something. While courts must defer to religious beliefs, they can examine actions that are in conflict with laws. Renting apartments would never have been understood by the framers as the kind of exercise of religion they had in mind.
That argument was shot down in less than a paragraph, and that’s probably the right answer. The problem I saw in the commercial world of religious believers picking and choosing which sins they subjectively felt they were “facilitating” has clearly come to pass. And there’s little doubt that this will be deployed by individual believers without much theological consistency or precision. But the role of courts is and should be limited whenever religious issues are being fought over.
There will always be individuals who will distort and mishandle their religion. But the danger of the government second-guessing religious believers is a far more profound concern. This will place a burden on lesbians and gay men in some — maybe a lot — of places in the country. But in the world today, they will not only have options, they will have allies. This is no small fact.
42 Comments for “My Sin”
posted by Doug on
Mixing of the races is against some peoples religious believes too and they if they own a business they have to sell to people of all races. If they have to sell to african americans they have to sell to the LGBT community too.
If you are going to carve out exceptions for any religious believe then you might as well repeal the Civil Rights Act, because I firmly believe you will open the floodgates of discrimination all over again.
posted by Mark on
This is an interesting case (even though the argument seems stronger as applied to housing law than to for-profit businesses selling goods and services).
But in this case, at least it appears as if Mrs. Smith applied her (odd) religious belief consistently–that is, I assume she wouldn’t rent to an unmarried black couple, or white couple, or interracial couple, or unmarried gay couple, etc.
I don’t see any evidence of this with regard to the current round of exemption types. Take, for instance, the anonymous florist in this (excellent) article in today’s Star-Tribune (http://www.startribune.com/politics/statelocal/248039231.html). Assume, for the sake of argument, that the Pious Florist believes that selling a gay or lesbian couple flowers means participating in their sin. The article doesn’t identify the florist’s religion, but presumably there are, also, all sorts of heterosexual marriages of which she disapproves religiously (divorced-and-remarried, married-after-affair, child out of wedlock and then couple gets married, maybe interfaith marriages). Those sorts of heterosexual marriages have all been legal in MN for as long as the Pious Florist has owned her shop. Has she refused service to any of these couples, each of whom violated her sincerely held religious beliefs?
If not–and I suspect she hasn’t refused service to couples like that–it’s hard to accept a claim that sincerely held religious beliefs, as opposed to anti-gay animus, motivated her actions. It might be–given the new ideological currents, and given the Supreme Court’s likely decision in Hobby Lobby–people like the Pious Florist will be able to (arbitrarily) discriminate to the heart’s content, at least against gay and lesbian people. But it seems to me that the Sanchez article in particular badly underestimates the dangers of an era in which gay and lesbian people will have no idea, when they enter a business establishment, whether or not they will be served. Even if only 10 or 15 percent of businesses take the route of the Pious Florist, as I think would occur, that’s a lot of discrimination.
posted by Lori Heine on
Information, information, information. Sunlight really is the best disinfectant. How about developing a voluntary system in which LGBT-friendly businesses as a matter of routine make their presence and availability widely known? Perhaps a sticker or a small sign outside?
No one would be forcing any business to display such a thing. But those that did not would, in fact, be making their statement. Voila! An opportunity for them to express their “sincerely-held beliefs” quite freely — and without the aggression of legislative action.
As for rural areas and small towns, do they not need to do business with big cities in order to survive (tourism, agriculture, etc.)? Municipalities can get these areas, as much as possible, to compete with each other for our business. We could make our influence felt, as voters, by pressuring our cities and their merchants not to do business with communities that pass bigoted laws.
To survive financially, a number of the small mining towns in Arizona have become VERY gay-friendly. They abound with bed-and-breakfasts, art galleries and the like. In not too many more years, the handwriting on the wall will be clear, even to the bigots.
posted by Mark on
I’m all in favor of sunlight–though advocates of the religious exemptions aren’t. (One of the amendments to the AZ law was to require businesses claiming the exemption to identify on their storefronts or websites that they for religious reasons wouldn’t serve gays and lesbians. The amendment was voted down. And none of the anti-gay bakers or photography businesses so often cited appear to have had accessible policies that they didn’t serve gays.)
The voluntary approach just serves as a reminder of how threatening these religious exemptions are. Currently in pub. accommodation states, gays and lesbians know they will be served in any business they enter. Even in other states, the accepted wisdom seems to be that businesses should serve gays and lesbians. (See the comment of Frank Keating, of all people, in the Times a couple of days ago.) In the world envisioned by Sanchez (and Matt Barnum, it seems from his latest post), gays and lesbians would be assured of service only in businesses with a sticker or some other identifying marker. The public marketplace would become something else indeed. Maybe anti-gay business owners eventually would retreat. But as Chick Fil-a has shown, in a country where a third of the people oppose any legal recognition for gay and lesbian people, there are a lot of potential customers for anti-gay businesses.
In such a marketplace, gays and lesbians at the least should have the ability to test the sincerity of those claiming exemptions, to determine if the business doesn’t sell to any sinners, or (like, I suspect, the Pious Florist in MN) refuses service just to gay sinners, but is happy to sell its goods to heterosexual couples whose behavior doesn’t live up to the proprietor’s morality.
posted by Dale of the Desert on
Hmmm….and maybe some additional window stickers for muslims welcome, or Baptists welcome but no Episcopalians. And signs for Straights Only drinking fountains while we’re at it.
Or alternatively….how about people with sincere religious beliefs against legal cohorts of American society have the freedom to operate businesses that do not offer public accommodations?
posted by Houndentenor on
What about those with insincere religious beliefs? Just when I think our politics has reached the far reaches of absurdity, the religious right drags us even further into the crazy dimension.
posted by Tom Scharbach on
Wouldn’t it make more sense to take the other route, which is to permit a public accommodation business to refuse services if and only if the business has posted a “We do not …” notice informing the public in advance?
The answer, of course, is “Of course.”
The problem is, as Mark points out, that such a proposal is politically impossible. It is as it always is — social conservatives want the right to discriminate without accountability or responsibility. Even the suggestion that social conservatives take responsibility for their actions is met with waves of complaint that the government is met with a tidal wave of complaints about “persecuting Christians”.
This is all nonsense. We are twisting ourselves out to meet demands that are essentially irrational.
Maybe what we need to do is change tactics, as you suggest. Let Republicans be Republicans, enacting layer upon layer of unconstitutional laws protecting discrimination under the guise of “religious freedom”, while we focus on identifying and supporting businesses that reflect American values.
A national campaign to allow business owners to voluntary post a nationally recognized notice or symbol is a good idea. So is creating the equivalent of “Emily’s List” or “Yelp”, a national website, sorted by community and type of business, that allows individuals to report discrimination so that potential customers who support American values can refuse to patronize the business. I’m sure that there are lots of things we could do in the internet age.
But I have to say this, too. We have, as a country, worked out, at great cost over many years, a reasonable balance between laws of general application and religious freedom.
Conservative Christians and their Republican cohorts seem determined to upset that balance, at least with respect to gays and lesbians. We are entering a period “massive resistance” to “equal means equal” and it will be a decade or longer before that fight is over.
We need to resist, because the impulses behind the “massive resistance” movement are dark impulses, and because our constitutional balance, once upset, will be hard to restore.
posted by Tom Scharbach on
There will always be individuals who will distort and mishandle their religion. But the danger of the government second-guessing religious believers is a far more profound concern.
The point you miss is that there is a world of difference between (1) a court deciding whether or not religious freedom is abridged in a particular circumstance and (2) the government deciding which particular religious freedoms should be protected, and which should not, in substantially similar circumstances.
The former is a limitation on government power; the later is an expansion of government power in an area where it does not belong.
Take the proposed Oregon law, which is fairly typical:
By what power, exactly, does the government have a constitutional power to decide that religious objection to same-sex marriage is worthy of protection, but that religious objection to a dozen other possible morally objectionable marriages is not?
It seems to me that granting the government the power to pick and choose among religious belief, sanctioning some but not others, in substantially similar circumstances, is a lot more dangerous than letting the courts sort it out.
posted by Houndentenor on
The telling word in the Arizona law was “sincere”. Who is going to decide which religious beliefs are “sincere” and which are not? The “activist judges” that the same people who promoted this law love to rail against?
posted by Tom Scharbach on
An issue with the proposed laws is that the laws make a radical change in the traditional understanding of the test involved in making determinations. RFRA prohibits the government from enacting a law that “substantially burdens a person’s exercise of religion.” Where, in the proposed laws, is the “substantial burden” test?
The saddest thing about the proposed laws is that the negative reaction to the laws — a negative reaction stemming from this and other radical changes (see Mark’s comments) in the way in which religious freedom has been protected under RFRA and in court — is as likely to reduce religious freedom as to enhance it.
posted by bls on
And how, exactly, is selling a cake “facilitating” anything at all? It’s a party snack, and has nothing whatsoever, in any way, shape, or form, to do with sexual behavior.
This is really, really far-fetched….
posted by Houndentenor on
In the early-mid 00’s, the religious right retreated to a fall back position on gay rights. Their line that couldn’t be crossed was marriage. They lost on sodomy laws and in about half the states on anti-discrimination laws (to which they had assigned the Orwellian title “special rights”), but marriage seemed like a safe place to retreat. In state after state they kept winning the discriminatory gay marriage bans. And now they are losing both in courts and occasionally at the ballot box on this issue. They never saw this as a possibility. Watch the rhetoric get increasingly nasty and the cries of persecution grow louder over the next few years.
posted by Tom Scharbach on
Watch the rhetoric get increasingly nasty and the cries of persecution grow louder over the next few years.
We are seeing an increase in irrationality and volume as we speak. I agree with you that the rhetoric will get worse rather than better — for example, Pat Buchanan denounced civil rights laws the other day as existing for the sole purpose of “validat[ing] the slander that America is a racist, sexist, homophobic and xenophobic country”, calling for their repeal — but sticks and stones.
The war in this country is over, except for a $15-20 million decade-long mopping up effort to come, and conservative Christians know it. That’s why conservative Christians are increasingly focusing their efforts on exporting “Christian values” to countries like Russia and Uganda, Jamaica and Belize, and most recently, Kenya.
posted by kosh iii on
Too bad they won’t self-deport themselves to one of those countries that doesn’t value life or liberty. I’m sure Iran or Saudi Arabia would welcome more gay-haters.
posted by Houndentenor on
Or Uganda or Russia.
posted by bls on
The whole “conscience” thing is really getting on my nerves. Imagine that a baker can claim s/he’s “facilitating” something by means of serving a sugared desert to a group of people!
Calling something like that “conscience” degrades the whole idea of conscientious objection to something that actually fits the description or that actually matters in some way.
People are certainly becoming prima donnas all of a sudden….
posted by Jorge on
There will always be individuals who will distort and mishandle their religion.
Given the context, I must object. How is it possible to mishandle one’s own personal religious belief, much less distort it? It is not the place of any outsider to pass judgment on theological and spiritual questions that are ultimately of a very personal nature. So far as the law must be concerned, either all religion is right, or all religion is wrong. You cannot pick and choose which are right and wrong based on your own subjective notions. Only whether or not something is an actual religious belief can be put to the test.
posted by Tom Scharbach on
So far as the law must be concerned, either all religion is right, or all religion is wrong.
I think that the better way to think about this might be that so far as the law is concerned, religion is neither right nor wrong, a matter as to which the law has no opinion.
posted by Jorge on
Taking any religion on its own, sure.
But take religion in tension with other other aspects of society which the law does express an opinion on. There, either the religious protections outweigh society’s interests, or they do not. Which religion is the subject of the discussion is not relevant.
I must say I found that California Supreme Court decision very persuasive.
Fortunately, I found the dissents more persuasive.
posted by Houndentenor on
Please give specifics. In what way did you find the dissents more persuasive?
posted by Jorge on
The plurality opinion pointed out that because any sincere religious belief is entitled to protection under the law, regardless of whether it is conventional or even logical, taking this to the logical conclusion means that any person can have a particular belief that should be considered for an exemption to a state law. The opinion argued this turns the very idea of laws (which exist for a purpose) applying neutrally to everybody on its head–every single person may come to have a particularized right to follow some laws and not others.
One of the dissenting judges pointed out that saying to a woman who believes renting to an unmarried couple causes her(self) to commit a sin, that if she wants to follow her religion, she can always go into a different business, is something that is almost by definition placing a “substantial burden” on the free exercise of her religion (this is what divided the judges). The judge said it would be analogous to the ridiculous propostion that if a doctor doesn’t want to perform abortions, he can always switch careers, it only makes it more expensive to practice his religion. I believe the opinion posited that the doctor entered said industry before said abortion law was passed. This doesn’t mean the state can’t prevail if there is a good reason to outweigh that burden (something both sides pointed out). (One of the two dissenters also argued that there is very little history of “invidious discrimination” against unmarried couples.)
posted by Kosh III on
We don’t need any “stickers” or stuff. A business open to the public must serve all the public or not at all.
No special rights for gay-bashers.
posted by Tom Scharbach on
We don’t need any “stickers” or stuff. A business open to the public must serve all the public or not at all.
Businesses are not subject to non-discrimination laws covering gays and lesbians in much of the country, and probably won’t be for the foreseeable future.
Business owners like Gary James have become celebrities among the far right precisely because they proudly discriminate.
We almost certainly will not be able to obtain non-discrimination protection in states controlled by Republicans, but we can use social media and other tools to protect ourselves.
posted by Mike in Houston on
“but we can use social media and other tools to protect ourselves”…
Not according to Stephen or the ADF / AFA’rs who insist that they must be allowed to discriminate without social opprobrium — because remember, they’re the true victims in all of this. Just ask them.
posted by Tom Scharbach on
We simply cannot let Stephen and other social conservatives redefine religious liberty and/or personal conscience for political purposes. Both are too important to be degraded. We need to oppose the agenda.
posted by Lori Heine on
Tom is taking the adult point of view. The other position sounds like that of a twelve-year-old.
“Stickers and stuff” actually help us to determine where to take our business — and where not to. They don’t help the bigots (who don’t want to stand up and admit they’re bigots) — they help us.
Mandating everything by law robs everyone of the ability to make decisions based on free choice. I want to know which merchants truly want my business, and which ones don’t. That way, I can voluntarily reward those who support me by supporting them.
posted by Tom Scharbach on
If the right advertising folks got hold of this and pushed, the campaign’s logos could become as ubiquitous as the “Buy War Bonds” posters did in World War II, a sign of a business’ patriotism and support for American values.
The logos would steer fair-minded Americans to stores with the stickers, increasing their business and profit. And as to stores who would not display the stickers, well, any wounds would be self-inflicted.
The campaign would, as Lori points out, help us. It would also help anyone else who was interested in fair play in business. As the campaign grew, the logos would provide a useful reminder to all Americans that conservative Christians do not own American values.
BTW, Kosh, I am not suggesting that the logo campaign is a substitute for fair public accommodation laws. I see it as a way to capitalize on the support we’ve built, using support to build support.
posted by tristram on
This all sounds like chit-chat among residents of WeHo and Greenwich Village. Where I live, a “We serve the gays” sticker is an invitation to a broken window. And you don’t have to replace very many plate glass windows (or car windows or windshield wipers if you’re into bumper stickers) to get the message. Like the few brave souls who have put up a rainbow flag (literally or figuratively) and found their flower beds trampled or their mailbox backed over.
As David Link suggests, people around here have options. You either lie real low or move to the city.
posted by Tom Scharbach on
This all sounds like chit-chat among residents of WeHo and Greenwich Village.
Maybe so, but even in rural areas like the one I live in, attitudes are changing. In 2006, when I spent several hours every day for six months knocking on doors and talking about Wisconsin’s anti-marriage amendment, I averaged 3-4 really ugly calls or voicemails a week (my name and phone number were on the literature, as required by Wisconsin law). I’m not talking about “faggots” or other slurs; I’m talking about threats of violence or death. I’ve not had a serious threat in several years, and I’m a prime example of the “homosexual activists” that Stephen and others on the right complain about constantly.
I realize that things are tougher in some areas than others.
Where I live, a “We serve the gays” sticker is an invitation to a broken window.
I’m not suggesting anything that sophomoric. I’m talking about a well planned national campaign to equate “We serve all Americans …” with “American values”. I’ve had no experience with advertising, but I’ll bet that people with that expertise could come up with something that equated fair play with American values, something that would have resonance with conservatives as well as with moderates and liberals.
You can run around trying to get businesses to adopt rainbow flag stickers, for all I care, but that strikes me as idiotic. We need something that ties us in with African-Americans, Hispanics, disabled Veterans, and all the other Americans who have been burdened by discrimination. We need something that appeals to the Chamber of Commerce, Rotary and the Lion’s Club in small towns.
In any event, I don’t think we have to worry about anything like I’m suggesting happening.
posted by Jorge on
Maybe so, but even in rural areas like the one I live in, attitudes are changing. In 2006, when I spent several hours every day for six months knocking on doors and talking about Wisconsin’s anti-marriage amendment, I averaged 3-4 really ugly calls or voicemails a week (my name and phone number were on the literature, as required by Wisconsin law).
I had a bad day today. I had inexperience, social anxiety and other mishaps do a number on me, and I felt bad about it, not the least because I’m still standing. I needed to read or hear something from someone who is a better warrior than I am. Fierce external enemies have indeed been overcome.
You imply that you have leveraged your activism into social change at the community level.
I think you have remarked at times that you are accorded with something of a known insider status within your very conservative community as a result of your face time with your community. As you may know, I favor that as very important. But even I fear at times that it is not enough. You can overcome death threats and vandalism, perhaps. You can’t overcome murder, and it may be too much to count on blocking that with personableness.
I just realized I usually do not actually believe that last sentence; I did say “at times.”
posted by Tom Scharbach on
On a side note, things do not seem to be going any better for the anti-marriage forces in the Michigan trial than they did in California.
Of course, if the only cards you have are unsupported opinion (Girgis, today) and bogus, discredited research (Regnerus, tomorrow), well, those are the cards you have to play. Puts me in mind of the first year law student adage: “If you have the facts, argue the facts. If you have the law, argue the law. If you have neither, just argue.”
posted by Jorge on
“If you have the facts, argue the facts. If you have the law, argue the law. If you have neither, just argue.”
Reminds me of work.
But I, who have both the facts and the law on my side, shall smite the argument down.
posted by Tom Scharbach on
If the lawyers doing cross-examination today handle it skillfully, and if Judge Friedman handles the findings of fact with the attention that Judge Walker did, Regnerus is as finished as an “expert” on same-sex marriage as Blankenhorn was after David Bois and Judge Walker got done with him. The great thing about trials are that they tend to expose puffed-up frauds.
posted by Jorge on
I imagine that’s because it’s impossible for any one puffed-up fraud to take the other side by surprise more than once.
And even in the first trial, pre-trial motions and discovery are so thorough that one time may be exhausted before it’s needed. Certainly an expert witness should not be throwing any surprises at the other side.
Surprise is important. What happens when you remove all surprise from a trial? You get precise measurement.
posted by tristram on
The way I learned the addage, it went – “If you don’t have the facts, argue the law. If you don’t have the law, argue the facts. If you don’t have either, just argue.”
posted by Kosh III on
“BTW, Kosh, I am not suggesting that the logo campaign is a substitute for fair public accommodation laws.”
Ahhhh, perhaps I misread what was said. Sorry.
However, I am still expect the law to require all businesses to be open to all customers. No special rights for bigots.
posted by Tom Scharbach on
I think that “one law, one rule for all” is the goal for any law, but I think that we can make exceptions in particular cases — such as “five units or less” exemption from the federal public accommodation laws.
I short hand this as the “de minimis” exception, and it is based on a recognition that at some point, the balance between societal interest and personal interest shifts in favor of personal interest.
A Super 8 franchise owner is in a different relationship to his customers than a B&B owner housing customers in his or her home. A “de minimis exemption” recognizes the difference, and draws a line. An arbitrary line, to be sure, but one that is probably sensible.
In any event, I think that we should be prepared for SCOTUS to expand religious conscience boundaries.
As I understand it, the California Supreme Court ultimately held that the landlord’s religious beliefs in Smith v. FEHC were not “substantially burdened” (the RFRA test) because the landlord had other investment alternatives, and she could eliminate the conflict by selling the building and investing in other ways.
Prior to her nomination to SCOTUS, Justice Kagan criticized this result. My guess is that she will draw the “substantial burden” line more expansively than the Court traditionally has done.
I doubt that Justice Kagan will go the route of the currently proposed laws — which eliminate the “substantial burden” test entirely for the most part, treating any burden, however slight, as an impermissible burden — but I think that we are in for a change in where the line has been historically drawn.
posted by AG on
Let’s hope you’re not a professional musician. Otherwise a local neo-Nazi group would be delighted to have you perform Hava Nagila at their next meeting.
posted by MR Bill on
I’m old enough to remember when the bigots were still using the ‘religious’ excuse for opposing desegregation: in 1967 I was in the fourth grade, and that teacher, Mr. Moore, had students bring in a daily devotional: a little Bible reading, an ended prayer. Students did the actual work, and everyone had to be quiet: I was trying in my 10 year old way to be reverent. The one that sticks out was the one with a text from Deuteronomy (I think) that inveighed against race mixing as ‘against the will of God”: the pamphlet was from a Southern Baptist minister’s daughter. This was in Hayesville NC and the race issue was alive and discussed in my home: Dad was on the school board, and getting threats and phone calls for saying “of course we need to let these kids of our neighbors go to school here ” instead of busing them some 25 miles to the Negro school outside Murphy NC, the next county over’s seat. Mom and Dad had decided that racism was uncompilable with their Christian belief, and Mom refused to get me a little Confederate Flag because “that’s what people who don’t think black people should have rights wave.”
(Now both pushing 90, they are MSNBC/NPR consumers, and considered odd by their evangelical church..)
I can’t help but see the revulsion of many racists and anti gay bigots as being pretty much the same thing…needing pretty much the same remedy.
posted by SEO on
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posted by “Choosing What to Photograph Is a Form of Speech” | Internet Tax Lawyers on
[…] could we at least narrow what’s a public accommodation? [Scott Shackford, Reason; David Link, Independent Gay Forum (on precedent of landlord reluctance to rent to cohabitors] Earlier on photography and cake cases […]
posted by "Choosing What to Photograph Is a Form of Speech" - Overlawyered on
[…] could we at least narrow what’s a public accommodation? [Scott Shackford, Reason; David Link, Independent Gay Forum (on precedent of landlord reluctance to rent to cohabitors] Earlier on photography and cake cases […]