Does IU Have the Legal Right to Prohibit Discimination?

Does IU Have the Legal Right to Prohibit Discimination? March 30, 2015

I was proud when I read the statement by Butler University’s president Jim Danko about the “Religious Freedom Restoration Act.”

Butler University open for everyoneWhen I then saw that the president of IU Michael McRobbie had alsod issued a statement, I found myself wondering about it in relation to the law.

The statement says, “we will not tolerate discrimination on the basis of any of these same factors. “

Butler is a private institution, with a religious heritage even if not a religious affiliation. As a legal “person” it may have its rules protected under the RFRA, as expressions of religious convictions.

But IU is a state institution, and I could well see an attempt by IU to enforce non-discrimation to lead to a lawsuit from a student. Indeed, that seems to be the very purpose of the RFRA.

The IU statement then goes on to say, “These are not merely words written in a policy and soon forgotten. These are core values by which every member of the Indiana University community is expected to treat his or her fellow colleagues, students and visitors.”

I would love to hear from legal experts on this. Can’t a student who falls afoul of this policy at IU claim that it is having its religious freedom burdened by the state through IU, and bring a lawsuit which – thanks to the RFRA – might well be successful?

If you haven’t seen it yet, please do watch the video of Governor Mike Pence refusing to answer a direct yes or no question when asked by George Stephanopoulos whether discriminating against gays and lesbians should be legal in Indiana. His refusal to simply answer “no” says it all. If you had any doubts about just how sinister the motivation behind this legislation is, this should make things unambiguously clear. If one is opposed to discrimination, and if a law does not make room for justification of discrimination, it is easy to say so.



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  • Gary

    Yes, the worse part of the video is at 11:00 on… Not involving the law, but a simple “Should it be legal to discriminate…?”
    Somebody should have looked at the governor’s back, to see if his hands were tied, and he was being held hostage.
    2016 will be interesting, to say the least (which is what the governor is really good at). Should learn the phrase that Nancy Reagan made popular. “Just say No!”

  • John MacDonald

    Proud to be a Canadian!

  • John Pieret

    It does not take much reading between the lines to see that Pence does think the law allows discrimination against LGBT people. He could have simply said … at numerous points … no, it doesn’t. Instead he squirmed and obfuscated and talked about the welcoming nature of most Indianans without acknowledging that anti-discrimination laws are also about protecting minorities from the bigoted few.

  • bkalafut

    There is a distinction not being made: between “discrimination” as objecting to another’s being and “discrimination” as objecting to (and declining to participate in) another’s behavior.

    “You have homosexual attraction therefore we will not serve you”
    “Your upcoming event is a sacrilege and therefore we want no part of it”

    are very different things.

    • And if a business identifies itself as serving only a specific religious community – a kosher deli or a conservative Christian bookstore – I have no objection to them providing services and carrying products for that specific clientele. The problem is when you give the impression that you are a secular business from which anyone may procure services, and then when a customer comes in, you tell them you won’t serve them.

      • bkalafut

        Suppose I operate a bakery, and somebody orders wafers for use at Mass. My bakery may not be overtly religious, but the customer’s order is not for something “secular”. So if I am (for the sake of argument) a Muslim, this is shirk, the greatest of sins, participation in idolatry. It is not I that made the transaction not strictly about worldly things (non-secular) but the customer. It is the customer who has made my business not a “secular business” but a non-secular business.

        But you say, because I haven’t hobbled my business and said I will only serve Muslims–because I’d happily sell a Christian coffee cake, just not something that will become the Body of Christ–I cannot refuse this order. So there is an effective rule now barring me as a Muslim from operating a bakery.

        The effect of this kind of policy more broadly is to ban everyone except atheists and post-Christian secularist types (UCC, Episcopal Church, etc.) from engaging in enterprise except with their co-religionists. If you sell to non-co-religionists at any time, you will have the choice: violate your conscience or forfeit your livelihood. (Because you have “given the impression” that you will act like a secularist in business, whatever your actual beliefs are.)

        Requiring a Muslim to shirk just to earn his livelihood is oppression. Enacting a kind of disability preventing the faithful from owning and operating businesses is oppression, plain and simple.

        Do you support laws restricting enterprise to atheists and secularists only?

        • If you cannot sell your products to everyone then you should not be engaged in that line of work. Many Protestant denominations may use any sort of bread in communion. If you are Catholic, Jewish, or Muslim, and object so strongly to that possibility, you should not refuse to allow Protestants to purchase bread, you should get out of the bread-selling business.

          • bkalafut

            Well, at least you’re honest about wanting (faithful) Muslims to be prohibited by law from owning bakeries. Many try to squirm around the authoritarianism here. Good to see someone own it, however chilling it is.

            Here’s a more interesting case for you.

            Suppose I own a hall where people can have events. And I allow dog shows in this hall. Every few months the area’s kennel club has their event. People come, they trot their dogs (or whatever the word is for what dogs do at dog shows. Prance? Strut?), hand out awards, and maybe eat pizza.

            So I have a hall, I rent it to the public, and I allow events with dogs.

            Now suppose a new religious movement, the Church of Man Dog Love, wants to rent the hall for an event, where owners may trot their dogs and eat pizza but where they will also engage in what we could call unnatural acts of man-dog love.

            Should I be at risk of losing my “secular” business, like a Muslim who won’t make communion wafers–because I strongly object to raping puppies and will not rent a facility to men who intend to use it for just that? Assume for the sake of argument that bestiality is not illegal in the local jurisdiction.

          • I do not think that there would be any need to invoke freedom of religion to have your hall not used for sexual purposes of any sort. But if you were a hotel and allowed heterosexuals to rent rooms but not same sex couples, that would be a different matter – wouldn’t you agree?

          • bkalafut

            Suppose that I would under certain circumstances rent the hall for sexual purposes. Make me a (hypothetical) secularist who’d rent the hall to porn producers or Free Love gatherings as long as everyone cleaned up. But I could not in good conscience open it up to the Man Dog Love people! I’d have to invoke freedom of conscience.

            Hotels are actually a somewhat tricky thing, if we think back to the era of sundown towns and the cartel arrangement that was segregationism. It’s one thing if people have easily fungible alternatives and another if they don’t. (And yet another if there is a kind of violent and government/police supported cartel involved, which there very much was at the time–that’s why anti-discrimination laws of that era are not even controversial among serious libertarians!) We’re balancing a fundamental right (to travel around the country) with another one, so there may be a compelling government interest at work here.

            I can’t identify whose religious exercise would be burdened by being required to rent to a same sex couple. But religion in US law is (rightly) considered in terms of individuals and not in terms of church or sect orthodoxy, so we can consider some hypothetical owner whose idiosyncratic beliefs would require him to not rent to a pair of homosexuals.

            Besides the possible existence of a compelling government interest, the hotel question as you pose it is different from what’s been in the news in another way: you propose a hotel owner who would rent to “heterosexuals” but not “same sex couples”: the distinction, like that between blacks and whites, is about states of being, not about conduct. It’s certainly not about compulsory participation in a sacrilege (communion wafers for a Muslim, gay “marriage” to a Christian). If the hotel owner believes that what gays do in bed is sinful and he’d be materially cooperating in sin, all the hotel owner would have to do to avoid this is to politely refrain from asking the same sex couple “will you two be fellating each other tonight?” the same way he doesn’t ask a married couple “if you do the deed, are you open to life?”

            We live in a country in which Hutterites and Quakers were exempted from military service, the most compelling government interest. (Because without being able to fight wars, a government ceases being a government and can’t protect rights from overseas oppressors.) Men died in their place because the government accommodated them. And this was OK because we were not the kind of people who would just strip religious believers of their dignity and reduce their consciences to nil. (We learned this the hard way–a few Hutterites died of what amounted to torture after they were conscripted during WWI.)

            But now when a faithful Christian florist will turn down good money for some reason it is allowable or even necessary to destroy her, to take away her livelihood and life savings. All this when there are no competing rights to balance (unlike some hotel cases), when her objection is to conduct and not to being, and when an option leaving her dignity intact–buy from the competition!–exists.

            Like a Muslim kept from opening a bakeshop because he won’t make communion wafers, the effect and perhaps the motive is to punish dissent from practical atheism.
            All RFRAs require is a balancing test. And in the hotel case this may not turn out in the favor of the guy who won’t rent to men who may have engaged in homosexual practices with another at some point in the past. To object to RFRA is to object to balancing, which is to reduce the Muslim baker or the Christian florist to the level of an underclass, it’s to hand a trump card to those who would have them “shirk” (to borrow the Muslim term) and make their consciences and dignity not even worth considering.

          • No one is obligated to make any particular type of product – whether communion wafers or wedding cakes. The issue is making them for some customers but not others when they are on your list of available products.

            The fact that you feel the need to envisage scenarios involving dogs either indicates that you don’t think highly of your fellow human beings who stand to suffer as a result of this legislation, or that you really are grasping at straws.

          • bkalafut

            The situation I envisage involves a Baptist cake baker in Washington who is suffering–standing to lose her livelihood and life savings–due to legislation which abridges her right to free exercise of religion.

            Real suffering, not the kind that can be alleviated by going up the street and buying from the competition. Not “there exists someone who disagrees with us, therefore we suffer.”

            Do you believe that this woman in Washington should be forfeit her dignity and life savings? And since you oppose RFRA, do you believe that her own rights should not even be balanced against other claims, that she doesn’t even get her day in court? Is that what little regard you have for others?

            The business about dogs is an attempt to probe whether there are limits to your fascistic requirement that business owners become practical atheists when acting in the marketplace. In our intellectual tradition, in this country, whether the topic is law, philosophy, or natural sciences, we often do this with hypotheticals. Perhaps you’re not familiar with this. It is not a “grasping at straws” but an exploration of the parameter space. “What if.”

            Perhaps I should have asked about requirements to burn a little incense for the Roman gods or be sent to the Coliseum. (After all, the Christians will burn incense at Mass–why do it for some “customers” and not others?) Or whether or not a Catholic priest should offer a Mass to produce a consecrated host for the local Satanists to desecrate. He makes them for his Christian customers, why should he be allowed to “discriminate”?

            You have made you position clear: Faithful Christians or Muslims are prohibited from going into business and must apostasize on request if they do so. The reasons for this, those you have not made clear–maybe it is axiomatic that businessmen must put their consciences aside.

          • To be comparable, you would have to talk about an incense-maker refusing to sell it to Hindus, for instance. No one obliges you to make or sell a given product. But if you offer it, offer it to everyone.

          • bkalafut

            “If you offer it, offer it to everyone” is creating real suffering.

          • To what real life people, as opposed to the ridiculous hypothetical scenarios you have been offering here?

          • bkalafut

            Barronelle Stutzman, of the State of Washington
            Robert and Cynthia Gifford, of upstate New York
            Elaine and Jonathen Huguenin, of New Mexico

            And that’s just for starters.

            I’m wondering how you missed this–it’s all over the discussion of RFRA this year.

            Maybe you can walk back that “ridiculous” now. The hypotheticals are an extension of the abuses of real people you appear to have been endorsing here, to different categories (Muslim, in case you have anti-Christian animus that would prevent you from opposing harm to Christians) and to extremes (the bit about dogs.)

            But if you didn’t know that these real people existed, maybe you weren’t actually endorsing what has been done or is being done to them, and you are not the fascist you seem to be.

            Do you believe that what was done to the Huguenins and the Giffords, the personal destruction, the abridgement of free exercise, is just. Do you believe that it will be right for Ms. Stutzman to lose her house? Is the destruction of Ms. Stutzman what you endorse on this blog?

          • If you had specific cases you wanted to discuss, then why did you fabricate outlandish and insulting scenarios instead of sharing the details of the actual cases that you wanted to discuss?

          • bkalafut

            Since these are the cases that have been in the news and which have motivated the latest season of RFRAs, I had presumed you were in support of what is being done to Stutzman and the Giffordses.

            Why are hypotheticals “insulting” to you? Where I come from (the USA) that’s how we have discussions about law.

          • Comparing people involved in same-sex relations with other human beings to imaginary scenarios involving people who wish to have sex with animals says more about you than it does about same-sex relations. Not all hypotheticals are insulting, but the ones you chose were, and deliberately so. There is no point in pretending otherwise.

          • bkalafut

            The hypothetical I chose was deliberately extreme, as it was meant to probe whether you, if you had your way, would totally forbid business owners from refusing to turn down any business based on matter of conscience, or if this is limited (for whatever reason) to forcing Christians to commit sacrilege when it is not necessary to do so.

            The question about a Muslim baker was in the same vein. What I got from you was specious reasoning, not principles, so I went with the next one, to find out what’s really making you tick.

            And you are insulted because I ask this question? You should ask yourself what it is about your position and the way you state it which makes one think it is totalitarian.

          • Your hypothetical was extreme because you deny the humanity of some of your fellow human beings.

            Let’s try a realistic case. Do you think that a secular grocery store ought to be able to refuse to sell fruit to Indians, because Hindus often use fruit in ceremonies to their gods?

          • bkalafut

            What is meant here by “secular”? Who owns the store? Who is making the decision? In what circumstances? On what grounds?

          • The owner of a business is not the business, and a business being owned by a racist should not give that business the right to be racist.

          • bkalafut

            One of those statements is a tautology, the other raises curious questions about what it means for a business to have a “right”.

            But I can’t answer your first question without knowing: Who owns the business, who is making the decision, on what grounds, and what is meant here by secular?

          • Secular as in not having a religious affiliation. I don’t expect a Christian bookstore to order me a copy of the Qur’an. I do expect Barnes and Noble to do so, even if the owner happens to have strong anti-Islamic sentiments.

          • bkalafut

            If it’s a competitive marketplace–not a cartel, not a “lifeboat” situation, not something where concerns of rights (and not just hurt feelings) come into play–then yes, it should be neither a crime nor a tort to refuse to sell fruit to a Hindu. That’s the only position respecting the equality of both parties, including the right of both to do what the other considers wrong. Whether or not the owners advertise their religious convictions (whether or not the Hindu expects there to be some objection) does not even enter in to the consideration here.

            It may not be good business practice to not be clear in advance. It may even be rude. But we don’t have law to stop people from being rude or improve business owners’s PR.

          • Rudeness only becomes discrimination when it is aimed at some groups and not others. And when one of those groups is a minority which is in danger of having its rights infringed merely due to its beleaguered status, democracies which are concerned not only for majority rule but protection of all to the extent possible, laws against discrimination have been felt necessary.

            Out of curiosity, do you consider all anti-discrimination laws an inappropriate infringement on the freedom of individuals?

          • bkalafut

            “Your hypothetical was extreme because you deny the humanity of some of your fellow human beings.”

            This statement is false. Care to fabricate something else?

      • Bethany

        This is actually something I’ve been wrestling with, because while I certainly don’t approve of homophobia and bigotry and strongly condemn refusing to provide services for same-sex weddings, I’m also weirded out by the notion that a business is required to provide services in the support of something they have strongly-held beliefs against, and not just religious beliefs. If I were a caterer who sometimes caters for political groups (for example) and someone asked me to cater their anti-gay-marriage rally, should I be required to do so, or should I have the right to refuse to contribute my services in support of the event that I strongly disagreed with?

        Refusing to cater an anti-gay-marriage rally also seems to me to be a different issue than (say) refusing to cater someone’s birthday party because you happen to know they’re anti-gay-marriage.

        Like I said, I don’t know where precisely to draw the line.

        • bkalafut

          Is “compelling government interest” and “least restrictive means” a bad place for the line?

          • Bethany

            No, but that still leaves the question of when the government has a compelling interest.

          • bkalafut

            In the ability of anti-gay-marriage rally organizers to hire caterers for their events?

          • Bethany

            No, I mean more generally. The government certainly has a compelling interest in preventing discrimination, but does it apply to all possible instances of discrimination? If I would cater a pro-gay-marriage rally but not an anti-gay-marriage one, then I’m certainly discriminating based on what are presumably the group’s religious beliefs, which would be illegal if I was talking about hiring them or providing them housing, but does that compelling interest extend to sandwiches?

          • bkalafut

            The government historically had a compelling interest in preventing a certain kind of discrimination because certain fundamental rights were in play (most typically the right to travel–there used to be books of what gas stations and hotels were safe for black people) and because the status quo was maintained by the active, terroristic participation of local governments and police forces. So it was a matter of both preserving law and order and protecting a fundamental right.

            You are certainly discriminating if you would cater a pro-gay-marriage rally but not an anti-gay-marriage one, but you what makes it different from discriminating in hiring is that you are are discriminating based on conduct and not being. You are not refusing to deliver sandwiches for a birthday party being thrown by people who just happen to believe X, you are refusing to deliver them to facilitate the promotion of X.

            But even if you were refusing to hire someone who would have been at that rally, it’s hard to find a government interest which is compelling.

        • Bethany, I think you need consider the nature of businesses in terms of the “support” they provide to their customers. If the city bus company is required to let LGBTQ folk ride the bus, is this a statement that the bus company “supports” LGBTQ rights? I don’t think so. If a same-sex couple hires a poet to help them craft their wedding vows, does this indicate that the poet supports their marriage? Maybe so.

          American law has always recognized that the right to conduct public business carries with it certain public obligations: to health and safety, to workers’ rights, to consumer protection, and so forth. For the past 50 years at least, these public obligations have included restrictions on the ability of a business to discriminate against certain classes of people.

          I am Jewish, and I can assure you that I have done business with people who did not approve of Jews and Judaism. I have never imagined that the merchants who do business with me are all friends of the Jewish people! (By the way, I’ve run into very little anti-Semitism in my life. The USA is a great place to be Jewish.) I lived with my wife before we were married, and I’m sure that I bought cakes at the time from people who thought I was living in sin. Doing business with someone doesn’t signal approval of that someone.

          Do I signal support of same-sex marriage by allowing the couple to sit at my lunch counter? By pumping gas for their automobile? By cutting their lawn? If I want to go into the business of selling mattresses, need I inquire into the bedroom practices of my customers? And if the law prohibits me from discriminating against LGBQT folk, then doesn’t my sale of a wedding cake to a same-sex couple indicate nothing more than my general desire to obey the law?

          Rather: where the law provides civil rights for LGBTQ folk, doing business with a same-sex couple is statement-less. It is silence, neither consent or disapproval. The statement comes in refusing to obey the law. And this is precisely the point: businesses that violate civil rights laws protecting LGBTQ folk are not seeking to avoid making a statement of approval; they are going out of their way to make a statement of disapproval. This is the religious right at stake in Indiana: the religious right to censure. And honestly: how much more freedom do we need to censure? If there’s one religious right we’ve exercised to death, it’s this one.

          • Bethany

            “Bethany, I think you need consider the nature of businesses in terms of the “support” they provide to their customers. If the city bus company is required to let LGBTQ folk ride the bus, is this a statement that the bus company “supports” LGBTQ rights? I don’t think so. If a same-sex couple hires a poet to help them craft their wedding vows, does this indicate that the poet supports their marriage? Maybe so.”

            Yes, that’s my point exactly. I think there is an argument to be made that creative or participatory involvement in someone’s wedding ceremony isn’t the same as selling them their morning cup of coffee, and the idea that someone should be compelled to play a creative or participatory role in a rite they believe to be a religious sacrilege (however vehemently I disagree with that belief) makes me a little uncomfortable.

            I mean, there are a LOT of things that I believe override a person’s right not to participate in events that they feel violate their religion, but I’m not sure a cake is one of them.

          • Bethany, I think we’re on the same page. Personally, I’m not sure that anything short of officiating at a wedding signals support of the wedding. Sometimes, not even that. I was married by a justice of the peace who would have performed the same ceremony for Attila the Hun. We had two friends as witnesses; I think they approved of our wedding. I was in favor of it, and most days I think my wife approved.

            But a baker? I’m scratching my head. Do people have intimate relationships with bakeries? I mean, do bakeries typically get involved with the lives of their customers and pass moral judgment on them? “Joe the baker must approve of me; he sold me a danish.”

          • Bethany

            I guess my line of reasoning is that as objectionable as I find refusing to make a wedding cake for a same-sex wedding, I wouldn’t want a situation where a baker could face civil liability for (say) refusing to make a custom cake with “God Hates :bleep:s” on it for an anti-LGBT get-together, and it’s not clear to me on what grounds one can mandate one and not the other — and I see both as different from refusing to sell someone a danish and coffee because the customer is gay or a homophobe.

          • Bethany, you’d make a good lawyer. (I’m a lawyer, so I mean this as a compliment!) But I think there’s a clear distinction between my decision not to sell a particular product, and my decision to sell a particular product to some people and not others. I am not going to sell a cake with “God hates …” written on it. Not to anyone, gay, straight or otherwise. But if I offer to write “Happy Birthday” on the cakes I sell, I think it’s fair to ask me to include this message on any cake I sell, even to customers I don’t like.

          • bkalafut

            But if you believed “Happy Birthday” to be a sacrament and something very evil to lie about, would you write it on a cake when you knew it wasn’t somebody’s birthday?

            And would you, if you were in charge of the courts and the law could be what you desired, say that a cake baker who believed that should be forfeit his business and life savings?

          • Belief that “Happy Birthday” is a sacrament? A sacrament is a religious ceremony or act of the Christian Church that is regarded as an outward and visible sign of inward and spiritual divine grace. For example, baptism and the Eucharist. I don’t understand how “happy birthday” could be a sacrament.

            As for “Happy Birthday” being a lie if it isn’t the cake-buyer’s birthday? Sorry, I cannot grok that, either. Naturally, I cannot be forced to take an oath I don’t believe is true. But a cake is not an oath.

            The right to engage in certain businesses is conditioned on the business’ compliance with law. Many a business owner has lost their business for failure to comply with the law. I can’t go to court and say, I didn’t have to obey the law because doing so would drive me out of business. And of course, I can’t go to court and say that I refuse to obey the law, yet I should be permitted to continue in business nonetheless. This is the difference between law and a helpful hint! The law is mandatory.

          • bkalafut

            It’s a hypothetical, a “what if”. Supposedly when anthropologists went to study village headmen in late Imperial Russia , they would ask things for the purpose of intelligence testing like “Where there is always snow, bears are white. There is always snow in the arctic. What color are arctic bears?” and the village headmen would reply along the lines of “I have never been to the arctic, how should I know?” or “All the bears I know of are brown, everybody knows that.” They didn’t think in the abstract.

            I don’t think you’re a village headman. Expand your mind here to consider how you would treat somebody who thought “Happy birthday” was a sacrament.

          • Expand my mind? I went to school at Berkeley in the 70s. It was practically a laboratory of mind expansion. Can I picture someone who thought that a birthday cake was like a baptism? Of course I can. How would I treat such a person?I’d follow the same techniques I’d use to “talk down” a person on a bad acid trip.

            Can a Catholic priest deny someone the Sacrament of the Holy Eucharist? Evidently, yes. Can he deny this sacrament on religious grounds? Yes. As far as U.S. law is concerned, can he deny this sacrament on racial grounds? Yes, with possible consequences regarding tax exemption. On grounds of gender, sexual preference, what have you? Yes. But that’s because of the status of religion. In contrast, could the baker of a communion wafer refuse to sell wafers to a black Priest? No. This is as close to white bears and brown bears as my mind can come.

          • bkalafut

            Can a priest deny the sacrament to somebody he knows will desecrate the Host?

          • Yes.

            When I lived in New York City, landlords were permitted not to rent apartment to lawyers.

          • bkalafut

            Well then why can’t a Baptist florist refuse to take part in a celebration she believes to be sacrilegious?

          • She can if the sacrilege is owing to the presence of lawyers.

          • bkalafut

            Also, you say “The law is mandatory”, but until the time of Employment Division v. Smith a “law” which violated the free exercise of religion was no law at all unless there was a compelling government interest and it was the least restrictive means to advance that interest.

            Would you, under that earlier (and better) 1st Amendment regime, have argued that Barronelle Stutzman should lose her business and life savings because she refused to participate in what she considered a sacrilege.

            Yes, one must comply with the law, but that doesn’t answer the question of whether or not the law is just. I am arguing that the “law” you favor, which prohibits faithful Christians from doing business (apostasize when a gay man demands or you lose your business) is monstrous as is the legal theory you hold in support of this.

            RFRA re-establishes protections of religious liberty, making laws which abridge it no law in Indiana. I am arguing that this is good and you have me somehow arguing agianst the very existence of law itself?

            But back to the topic: Are you going to argue that Sherbert v. Verner was wrongly decided, that Employment Division v. Smith was rightly decided, and that the pre-Smith era of 1st Amendment law was one of gross injustice?

          • bk, I don’t think you’ve described the state of the law correctly. You need to consider cases like Braunfeld v. Brown along with Sherbert v. Verner. Mandatory Sunday business closure laws were upheld by the courts pre-Smith even though they clearly burdened the practice of Judaism. Even in Sherbert, the court did not hold as you suggested. There is, to my knowledge, no “least restrictive means” test in Sherbert. FWIW, I agree with Sherbert and disagree with Smith. I could support RFRA if all it did was reverse Smith. But it goes much further, on the federal and especially on the state level. The Supreme Court majority decision in Hobby Lobby says so explicitly. It all but states that Hobby Lobby would have lost under pre-Smith law.

            I don’t want to hijack James’ blog. You’re welcome to continue this conversation on my blog.

          • Bethany

            Yeah, I see what you mean, although I’m thinking about creating a product to play a role in activities or events that the creator finds morally objectionable, not to selling to some classes of people and not others.

            Ultimately I’m not necessarily saying that I don’t think this sort of behavior should be illegal. More that I do feel a tension between two rival claims: non-discrimination on the one hand, the freedom of an individual artisan (and I’m thinking of small businesses here, where we’re talking about an individual baker or photographer or florist or poet or whatever who’s going to be providing the service, as opposed to a corporation) to refuse to accept a commission that conflicts with deeply held beliefs on the other.

            I think part of my reaction has to do with being someone who engages in creative activities as a hobby and the feeling that there’s something much more personal for the creator about handcrafting a one-of-a-kind item made for a specific individual/event than there is for selling a mass-produced item which one didn’t make oneself, or even an item which one DID make oneself as part of mass production. Presumably when one engages in artistic work professionally one has to get over this to an extent, but I still can see how the idea of being compelled to engage in that kind of creation in the service of something one finds morally objectionable might be disturbing in a way that selling a product that arrived in your store on a truck isn’t.

            So I think ultimately I’m seeing this more in terms of an individual and their freedom to choose what commissions to accept or reject. (I think that selling someone a pre-existing wedding cake is not quite the same issue as accepting or not accepting a commission for a new one, for example.)

            Idle thoughts:

            What if the baker would be willing to make a “God hates *****” cake for some sort of joke parody pro-LGBT party but not for an actual anti-LGBT event?

            Musicians who sell rights to use their music: should they be able to refuse to sell the rights for projects they have religious or moral objections to, but sell the rights to the same music to projects whose ends they agree with? Similarly for visual artists selling rights to use their artwork? Or musicians who are available to be booked for live performances or visual artists who take commissions, for that matter?

          • Bethany, you’re getting too good at coming up with difficult cases! Yes, we have to balance the public interest against our interest in individual liberty and freedom of expression. We have to draw lines, and some cases are going to come uncomfortably close to the lines we draw. There are going to be cases where the scales tip against a person we feel some sympathy for. This is the nature of law. Line-drawing is difficult, but every law requires us to draw lines. We draw lines separating murder from manslaughter from killing in self-defense, and this line-drawing does not cause us to question the need for laws protecting human life.

            Without question: where we draw lines is important. But the fact that the law requires us to draw lines is no argument against the rule of law. We are not ultimately talking about wedding cakes. We are talking about the history of humanity’s persecution of fellow humans. In its worst manifestations, this history has resulted in slavery and genocide. It is always the question of a “normative” group persecuting an “other,” a majority persecuting a minority, and there’s never been a case in human history where humanity did not ultimately come to regret this persecution.

            So we move forward with this understanding. We decide that a poet need not write a poem she doesn’t want to write, and that she need not read the poem aloud in a setting she doesn’t select, but that if she puts her book of poetry up for public sale, she cannot restrict the sale of her book to white people. Things offered publicly and routinely must be offered to the general public; things offered privately and occasionally may instead be offered to customers of the vendor’s choice.

            Cases involving parody are always difficult. The music case you mentioned reminds me of when Bruce Springsteen objected to Ronald Reagan’s presidential campaign’s use of his song “Born in the USA.” (I don’t remember how that case was resolved.)

          • Bethany

            See, I think that’s where the line gets tricky. When the poet offers the book for sale, sure, she can’t restrict who buys the book. Full agreement there. But if the poet ALSO routinely accepts commissions — thus is publicly and routinely offering her services as a poet to the general public — does that mean she’s obliged to accept commissions to write poems she doesn’t want to write? And if not, can she reject the commission for any reason, or are the some reasons for rejecting the commission that should open her up to civil liability? What are the acceptable vs. unacceptable reasons?

            I agree with your statements about past and ongoing persecution and the enormous weight it carries, but of course things like freedom of speech and religious freedom carry a great deal of weight, too, which is where I think things start getting tricky, balancing important but conflicting issues (especially since it’s precisely when speech or religious beliefs are objectionable to many people that they need protection).

          • bkalafut

            Would you boil a calf in its mother’s milk if I asked you to and paid you good money? Would you be an organist or singer on Trinity Sunday at the local Catholic church if I paid you, a Jew, to sing of God in Three Persons?

          • Please stop trying to change the subject – although I do know singers who offer their services to faith traditions other than the one they belong to. No one is forced to offer a product they don’t sell. A kosher deli that does not sell kid boiled in mother’s milk is not obligated to sell a customer something on their menu. And there are a great many reasons why a person might refuse an order, including “we are out of pastrami” and “we are booked solid for the next month.” Legislation prohibiting discrimination does not in practice stop people using such excuses when in fact they may have other reasons for refusing to provide someone with service. The most the law can do is provide legal recourse when there is good reason to believe that the real reason is discrimination.

          • bkalafut

            But if the real reason is not animus against one’s being (which is what I think you mean by “discrimination”) but rather “I will not participate in sacrilege” will you allow the day in court, which is what RFRA does, or deny it, which is what opposing RFRA does?

          • bkalafut, if I open a Japanese restaurant, it’s not discrimination if I don’t agree to make spaghetti. If I’m an opera singer, it’s not discrimination if I don’t agree to sing country western.

          • bkalafut

            If you bake wedding cakes, is it discrimination to not bake a gay wedding cake, if you believe these to be categorically different things, as Christians (especially those in traditions which follow natural law ethics) do?

            And is “discrimination” the kind of thing that is and ought to be always forbidden? Should we be forbidden to discriminate in who we date or marry? In declining an offer of work from an employer? In allowing people into our houses and at our dining room tables?

          • I pass on question 1. Cakes cannot be gay, and natural law does not provide that a cake changes essence based on its buyer’s sexual preference.

            Regarding question 2, it would not be discrimination if a baker only baked and sold cakes to their spouse, their dates, their employers and guests in their house. Ditto for dining room tables. I do recall something in the NT about Jesus being somewhat “indiscriminate” about who he ate with, but I suppose he wasn’t legally required to do so.