More. Tyler O’Neil at PJ Media writes:
It appears Stutzman will have to show what Phillips showed — that anti-Christian bias was fundamental to the original ruling against her. This will prove more difficult than in Phillips’ case, and the odds are good that the Washington Supreme Court will reissue its old ruling, again prompting a Supreme Court appeal.
Perhaps in 2020 or 2021, the Supreme Court will finally defend free speech and religious freedom, explaining that a Christian florist’s decision to opt out of serving a same-sex wedding is fundamentally different from refusing to serve all LGBT people. Only at that point will justice truly have been served.
A bit surprised that #SCOTUS remanded Arlene’s Flowers. Not in a legal realist sense—they clearly don’t want to resolve the issue—but Masterpiece Cakeshop was already a punt, so lower court will now rubber stamp its previous ruling and we’ll be back at same place. #CatoSCOTUS
— Ilya Shapiro (@ishapiro) June 25, 2018
A compromise on LGBT nondiscriminination rights and religious liberty rights requires that both sides recognize that the other also has rights, and that sometimes these rights conflict and reasonable and workable compromises must be sought.
I’m more partial toward recognizing the right not to be forced to engage in activities that violate religious conscience in the private sector, and in particular the rights of small business owners not to be forced by the state to engage in expressive activities that violate their beliefs. But it seems like the outcome of this North Carolina case regarding a public official is fair to both sides—the individual magistrate does not have to officiate at the same-sex wedding ceremony as long as someone is on hand to provide these services.
This, by the way, differs from the situation in 2015 involving County Clerk Kim Davis in Kentucky, where she would not allow anyone in her office to issue same-sex marriage certificates, including clerks who had no issues with doing so.
A different compromise was reached in that case: Gov. Matt Bevin issued an executive order that removed the names of all county clerks from marriage licenses issued in Kentucky. I wrote at the time:
Government officials are responsible for following the law of the land, even when doing so is at odds with their own religious beliefs. They are public servants, not private, self-employed service providers.
But it’s for the good if a small, symbolic action can defuse a contentious “culture war” face off and serve civility without diminishing individual rights, and I tend to see that happening here.
Allowing individual magistrates to opt out as long as no couple is denied a prompt marriage takes things a bit further, but if no couple is harmed I don’t see a problem. It’s akin to not making religiously observant employees work on the sabbath.
The freedom of any baker to express himself is, in this respect, indistinguishable from that of any gay person to do so — a truth that our current tribalism blinds so many to. I hope, in other words, that the baker prevails — but that the Supreme Court decision doesn’t turn on religious so much as artistic freedom.
More. The response from many on the LGBTQ+ progressive left has been fear-mongering, with little to no empathy for religiously conservative small business owners and often dismissive of religious liberty itself and the right not to be coerced by the state, on pain of losing one’s livelihood (or worse), to engage in expressive activity that violates deeply held religious belief.
Slate: How Clueless Straight White Guys Excuse Religious Homophobia.
What the left keeps getting wrong:
The Wall Street Journal opines:
At issue is whether baker Jack Phillips, who opposes same-sex marriage out of sincere religious beliefs, can be compelled to custom design a cake for a gay nuptial. …
While some on the left liken Mr. Phillips to hotel owners in the Jim Crow era, there’s no evidence of invidious discrimination. Mr. Phillips and others who have denied wedding services to same-sex nuptials have consistently served gays in other contexts. Mr. Phillips said he would sell the gay couple other baked goods—simply not a custom wedding cake.
As the editorial notes, the issue pits the government’s interest in social equality against an individual’s constitutional right to express his beliefs.
There seems to be a fair amount of confusion over whether criticism of Islamic homophobia is Islamaphobia. But try this: would these advocates rally in defense of the rights of Christian fundamentalists? Alternatively, would they ever demand that a halal bakery create desserts for a same-sex wedding?
More. Chris Barron, in a blurb for the satirical Social Justice Warrior Handbook, says it’s invaluable for “the modern LGBTQIA activist desperate to fight the oppression of pronouns and gender specific bathrooms all while ignoring the barbaric treatment of LGBT people in the Islamic world.”
The polarizing conflict between religious liberty (here without the delegitimatizng “scare quotes” so ubiquitous in LGBT circles) and gay rights/LGBT anti-discrimination law was addressed by Jonathan Rauch, a past Independent Gay Forum contributing author, when he spoke at the University of Illinois Law School recently (viewable here via YouTube, about 40 minutes).
Rauch starts by noting that to understand where we are in the discussion of gay rights versus religious liberty, consider two bills now before Congress:
One is called the Equality Act. It would grant [LGBT] Americans…protection from housing, employment and public-accommodations discrimination under federal law, which is something that we lack at present. It’s championed by Democrats and liberals.
The other piece of legislation is called the First Amendment Defense Act, or FADA. It would pre-emptively shield all those people who object to same sex marriages or who choose to discriminate against same-sex marriages…whether on religious or moral grounds…from any federal sanction or disallowance of benefit…. It is championed, as you would imagine, by Republicans and conservatives.
Though coming at the question from opposite corners, the two bills have something in common: each tries to take all the marbles and leave the other side with nothing, or at least with as little as possible. The Equality Act includes a provision revoking any protection which religious objectors might enjoy under the [federal] Religious Freedom Restoration Act. The First Amendment Defense Act shields the objectors from discrimination while leaving gay people wholly unprotected from discrimination under federal law.
If these bills are opening positions in a negotiation, then what should ultimately happen is legislative bargaining leading to the obvious compromise: protections for gay people plus exemptions for religious objectors.
That, however, seems unlikely to happen because advocates on both sides aren’t interested in forging a compromise—which, Rauch notes, is “emblematic of an unfortunate development: an issue on which a few years ago there seemed to be reasonably good prospects for reasonable accommodations…has hardened into legal and political trench warfare.”
To which I’d add, the polarization/compromise-rejection serves those who don’t actually want a solution because they profit from permanent cultural warfare. And that’s because ongoing cultural war equals (1) big money flowing to advocacy groups and (2) hot-button issues that the political parties can use to fire-up their respective bases.