Between the rock of religious freedom and the hard place of anti-discrimination

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Religious Freedom Stamp

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Religious Freedom Stamp

Religious Freedom Stamp

Religious Freedom Stamp

I have been pondering a Rasmussen survey taken just prior to Gov. Brewer’s vetoing of the notorious SB 1062. It shows Americans opposing the bill by a margin of 66 percent to 20 percent (with 14 percent undecided) while at the same time strongly supporting “a private photographer’s right to not photograph a same-sex wedding for religious reasons.”

Since the legislation was designed precisely to let a private photographer use religious reasons to justify a refusal to photograph a same-sex wedding, what gives?

I’ve decided that those surveyed had come to understand the legislation as facilitating discrimination, which it did; and they didn’t want that. But as per Brewer’s post-veto public statement, they embraced religious liberty as a core value as well, and so they also thought a photographer should be able to turn down the job of taking pictures at a same-sex wedding. In other words, they wanted to have their cake and eat it too.

They can’t. Real life is not a survey, and in real life core values sometimes conflict.

To  be sure, Gov. Brewer rationalized her veto by claiming that no conflict existed because religious liberty was not really at stake.

Senate Bill 1062 does not address a specific and present concern related to religious liberty in Arizona. I have not heard of one example in Arizona where a business owner’s religious liberty has been violated.

Public understanding would have been better served had she acknowledged that there are indeed Arizonans who, on religious grounds, want to be able to refuse to abide by those city ordinances that prohibit discrimination on the basis of sexual orientation. She should then have gone on to say that, nevertheless, when it comes to business transactions, non-discrimination is a compelling public interest that needs to prevail over a religiously based desire to withhold goods and services.

She could then have pointed out that there are other circumstances, such as when a church hires employees, where the resolution ought to be in favor of religious liberty. And said in conclusion that we need to be honest and admit that even in the best of societies, such as the great state of Arizona, there will be times when one core value has to be sacrificed for the sake of another.

  • Larry

    Jan Brewer already had a record of trampling on 14th Amendment equal protection under the law with the infamous immigration law. The one which made “being brown in public”, probable cause for arrest. The one which SCOTUS envicerated in short order.

    Of course she was not going to recognize the obvious discriminatory intent and effect of the bill. She has never shown herself to be concerned with preventing discrimination. There was never any religious liberty issue here. Religious liberties don’t work in the way these Christian Fundamentalists believe they do.

    Free Exercise does not allow one to circumvent the Establishment Clause.
    It does not allow one to ignore laws of general application. Where government has a legitimate and established right to regulate. Most importantly it is never a legitimate reason to harm the interests of others.

  • As mentioned elsewhere, are you actually arguing that religious people must be discriminated against for the ‘public interest’?

  • Larry

    You need to reverse it for accuracy.

    What is being argued is that religious people don’t get a license to discriminate against others, because of public interest. Just because one claims their actions are based on your religious beliefs, it doesn’t automatically make them acceptable under the law.
    [See: human sacrifices, hallucinogenic sacraments, polygamy, burning crosses on land which isn’t yours…]

  • steve shay

    Larry, Your comment took the words right out of my mouth! I recall Indians in Arizona wanting to use peyote, illegally, for rituals, and of course anti-polygamy laws are revving up in Arizona and neighboring Utah.

    Another way to eviscerate the Christian photographer example is to say, “OK. I am a wedding photographer with deeply-held religious morals. Before I sign on shoot a wedding, family reunion, portrait, or corporate event, I need to interview the person hiring me to see if he or she has ever committed a violent crime, cheated on their spouse, or lied to their customers for financial gain because these people are living in a way that violates my personal religious beliefs.”

    I am a professional photographer, and, looking back, I photographed events for food and wine companies TO PROMOTE THEIR PRODUCT run by, I was sure, the mafia, and I have certainly shot weddings for families involved heavily in white-collar crimes in banking and real estate, people who did not disclose mountains of deceitful practices, and whose son or daughter getting married would also become involved with criminal family business practices AS A RUSULT OF their marriage. (Over the course of 30 years you hear things about your customers.) Therefore, if Christians refuse to photograph a gay marriage, then they need to interview all their potential customers to make sure they ALL abide by the photographer’s moral code.

  • samuel Johnston

    “…what gives?…they embraced religious liberty as a core value as well, and so they also thought a photographer should be able to turn down the job of taking pictures at a same-sex wedding. In other words, they wanted to have their cake and eat it too.”
    Obviously I cannot tell you what anyone actually has in their mind, but I can speculate and have an opinion on proof and process and fairness.
    I really dislike anti discrimination laws as they are processed legally. Perhaps they were a necessary antidote to the monstrous Jim Crow era, but they are dangerous tools in general, because they are so subjective and everybody can be caught in their net if they are not careful.
    Take the photographer. If he advertises that he does not work at gay weddings, then we know what his intent is, but few cases are so clear. What if he makes his excuses (conflict of schedule) then tells a friend that gays make him feel uncomfortable. Does he have a right to be uncomfortable? To express it privately? Let’s say he is an orthodox Jew. Let the gay couple be Palestinian. Let the family be notorious for suing contractors or – you name the personal factor that could be the more important reason.
    I practice law. I only take the cases I choose. Must I take a gay divorce or risk being sued? What if I have no problem with gays, but do not think they should be allowed to adopt? Am I breaking the law because I do not take a gay adoption case? The complications of real life are endless.
    It is easy to pass laws. It is difficult to administer them and get the intended result. I would rather err on the side of personal freedom, rather than group rights. Obviously the government should be evenhanded, but should it prefer the moral the bias of the day to those enumerated in the the Bill of Rights?

  • Susan Humphreys

    I wouldn’t want a photographer to work my wedding IF I knew they disapproved of me in some way. I wouldn’t trust them to do their best. The same would go for a baker or florist. I’d look elsewhere, move the wedding to another town, do without a professional photographer, or baker, or florist. I noticed that there is a movement on the part of some business folk to put signs in their windows “we don’t discriminate, we value everyone’s business.” I think such a movement will in time put the discriminators out of business.

  • samuel Johnston

    Hi Susan,
    Obviously that is the best result, and over time the most likely. Importantly, it is a self interested solution. Social consensus is many times stronger than law, and combined with economic interest is often more powerful than even that old reliable motive – fear.

  • steve shay

    Samuel, After reading your comment three times, I can see you are a good lawyer. You have effectively argued both sides of this issue 😉

  • samuel Johnston

    Hi Steve,
    Does that mean I can earn two fees?
    The public aspect of an issue (appearance) and the private aspect ( the murky world of mind/emotions) is always a problem, as is the divergence of intent and result.
    We all want to feel righteous, especially when we are punishing our those whom we dislike. Better, I think, to assume we are all a bit deformed and untrustworthy going in, rather than discover our impurities later, when we have caused harm.

  • steve shay

    Yes! Charge what the market will bear, plus phone calls 😉

    While I still do not know which side you are on, you make my argument for me, I think, when you speak of public appearance. A gay couple wanting cake or photos is easier to spot than, say, a couple with mafia ties leading a crooked, and maybe violent, life. That is why I feel gay couples are being picked on, singled out, because they stand out. Others leading lives objectionable to the morals of religious photographers are not as easily recognized, and are therefore catered to, literally. So, in my view, the refusal of service to gays is a civil rights matter, not a moral one.

  • samuel Johnston

    Please define the distinction that you are making for me. As for sides, I wonder why one must declare a side. I generally find both sides have some strong, and some weak arguments. Analysis is not about choosing teams. It is about clarifying the situation.

  • Larry

    The trick is that you do not enunciate reasons for turning down a client which are obviously discriminatory in nature. A little plausible creativity is required. 🙂

    The unstated problem with the cases with the wedding photographer and baker are that both people were too uncivil and too obviously discriminatory in their attitude. Worst of all they were too unimaginative to cough up a legitimate sounding excuse for refusing the business.

    My feeling is that stupidity deserves some kind of social sanction. If small business owners are too stupid to come up with polite, plausible business related excuses for turning down a customer, they deserve to be sued.

  • steve shay

    Good point, Larry. I have turned down weddings because the couple seemed fussy and unrealistic. (They’d say things like, “We want outdoor photos of the reception and we want it all to look like a dream, (even though they’d book a hall at night at the Marriott) and we want B&W photos that look fuzzy and edgy, and don’t be taking photos of our grandparents and everything…Just be artistic.” My favorite was always this doozy, “We realize it’s in April, but you’ll promise us good weather, right?” (In Chicago.) If I’d get a bad feeling about the gig, I’d simply say, “Sorry, I am already booked that whole weekend.” As far as wedding cakes go, I am not sure what a good excuse would be.

  • Lynne Newington

    It’s interesting to note here, that in the Religious Discrimination Guidelines of the Victorian [Australia] Equal Opportunity Act, it states in a nutshell using the Catholic Church as an example, that a religious body is among among other things, are permitted to do what conforms with it’s religious doctrines, or necessary to avoid injuring the religious feelings of members of it’s faith.
    Not a good thing as far as I can tell, considering the cover-up of abuse of our children for decades.

  • Shawnie5

    You have outlined VERY well the difficulties presented by these situations. Thank you.

  • tony

    The obvious answer is that the public agrees that a photographer shouldn’t have to violate THEIR conscience and the PRESS misrepresented the arizona law.

    It is amazing how willing liberals are to make themselves purposefully stupid. The businesses aren’t discriminating against people, they are discriminating against participating in an act. Unfortunately, Dr Silk doesn’t have the intellectual dexterity to see such differences or does and it was swallowed up by ideology. If a hetero wedding planner wanted to order a cake for a gay wedding, how is the baker discriminating against gays if they are willing to sell to a gay wedding planner for a traditional wedding.

    If you want to fight discrimination against gays, try the FDA which refuses to use blood donations from gay people. throws then right in the trash. hypocrite.

    Liberals definition of tolerance is fining, jailing or taking away someone’s livelihood until they agree with you.

    If you own a meeting hall should you be required to rent it out to homophobic or racist speakers?

  • Larry

    “If you own a meeting hall should you be required to rent it out to homophobic or racist speakers?”

    You have a problem with free speech or paying customers?

    Do you realize that there are no provisions of the Civil Rights Act or any state anti-discrimination laws which place racists and homophobes under their protection?

    The only argument that seems to be posed in favor of discrimination are stupid hypotheticals about people being uncivil to bigots. The problem with these oft used horsepuckeys is that the laws treat some groups differently. They do so because of longstanding history of discrimination against some personal categories. Race, sexual preference, gender… Arguments out of ignorance of current laws, why we have them in the first place and pretending they did not exist.

    Those proposed bills are just an excuse to violate notions of equal protection under the law and pretend its religious belief. You want to deny goods and services to people on the basis of an alleged religious belief, it does not require any kind of respect under the color of law. It is simply using religion as a pretext to intentionally harm others. Discriminatory business practices are a form of harm to others.

  • tony

    Dear Genius, right aren’t based on historical experience they are acknowledge as inalienable. The first amendment guarantees the “free EXERCISE of religion”, there is no amendment that guarantees not to have your feelings hurt.

    How is anyone being harmed? There were 1,000 photographers willing to work at gay weddings, now there a 1,001 …yippppe!

  • steve shay

    Dear Tony, First of all, you need to learn the difference between a period and a comma. Second of all, I suppose if a black couple is refused service at a restaurant because they are black, there are a thousand other restaurants where they can eat, and their feelings need not be taken into consideration.

  • tony

    your analogy fails…..even the professor admits this issue is about conflicting rights…and when rights conflict you use prudence to resolve them…unless you are a social engineering zealot…your analogy fails on two accounts…first the restaurant is discriminating against a person not an ACT…. second they have no compelling reason to refuse service…the restaurant is not citing a higher good…in fact they are claiming a lower one…bigotry….

    in the real world, the photographers are saying how can the government compel us with the force of law to cooperate in a gay wedding when it is against our religion.

    if you really want to strike against discrimination, petition the democratic administration to stop throwing out blood donations by gays. This is a much more hate filled fundamental rejection of a person than any baker can hope for.

  • steve shay

    Tony, After Googling around, I was shocked to learn that our Democratic administration, which I have little faith in, continues to forbid gays from donating blood. It sounds like this is an archaic law and that science has caught up with problems of blood testing. I hope this law changes. However, two wrongs don’t make a right.

    My analogy is valid in the case of a white restaurateur refusing service to a black. The restaurant owner did so before civil rights, not because of the black person, the individual, but because of a deeply-held, albeit, ugly, belief system held firmly by the restaurant owner. For example, say a black couple from Boston walked into a restaurant in Mobile, Alabama, and the owner said, “Get lost. We don’t serve ‘you people’ here.” The owner did not know the couple, where they lived, what they did for a living, etc., only what they represented. Perhaps in his world he felt compelled because there had been interracial violence in other parts of the country that he observed on TV and did not want to be part of it. Perhaps his friends convinced him his property and business values would go down if blacks moved into his neighborhood. In his mind, and in those days, these were (his) compelling reasons. My main point here is that a restaurant owner was not discriminating against an individual, but rather a cultural movement in a fast-changing world, and he was not ready to change, and therefore acted wrongly.

  • tony

    Steve, you are confusing the act and the intention. In your scenario, the restauranteur is refusing to serve black people. In case of the photographers, they are willing to serve gay people but they are not willing to participate in a gay wedding. They are not discriminating against a class of people, they are refusing to participate in act. I know in this day and age, we judge everything by whether an intention seems “mean” or not but provide an adequate description of the act for either morality or law.

    The problem with blood donation is that in science, unlike sociology, you can’t just pretend to see the world you want and ignore consequences and contradictions. You can get away with saying that gay and traditional marriage are equivalent without being to measure significant differences in the short term but no so much with disease. But you are right. The blood donation issue is a much graver slight than only having 1,000 bakers to choose from rather a 1,001. You should really spend your time and energy on it and let one or two bakers live their lives without threat.

    btw if you are gay, i wish you the best of luck. if you are not, you really need to move beyond judging intentions.

  • steve shay

    Tony, I’m not gay. LOL. I think you make some good points here in arguing my point. I just think you needn’t be in attack mode. You catch more bees with honey.

  • tony

    I wish that were the case. The only reason I bother commenting on this blog is because it is breathtakingly hypocritical. Could you imagine a blog dedicated to exploring the homosexual experience that spent the majority of its time denigrating homosexuals? Dr. Silk would be first in line declaring how hate filled it was and how we need to be open to the perspectives and experiences of other people, especially those we disagree with or find strange. And yet, he has no problem trotting out his warmed over narratives every day that by pass honest debate and merely seek to denigrate people who are trying to live honestly in a way he doesn’t understand. This offends my liberal sensibilities and preference for socratic debate so sometimes I comment on Dr Silk’s operating principles.

  • Larry

    Read my lips: Free exercise of religion is not a license to harm others. It is not a catchall excuse to avoid laws of general application one finds inconvenient.

    “there is no amendment that guarantees not to have your feelings hurt. ”
    Its the 14th Amendment. Equal protection under the law. 🙂

    If discrimination was not considered a harmful act, it would not be grounds for civil lawsuits. This is a stupid argument for you to be getting into.

    Do you think business discrimination when legalized would stop at just a few business owners? Of course not. It creates a climate where commerce is entirely restricted to certain people or in certain locations. Of those 1000 photographers one can choose from, if they have legal sanction to discriminate, it can easily become just a few left.

    Are you really that ignorant that it has to be spelled out for you?
    Discrimination restricts the flow of commerce and is well within the government’s right to prevent. It also is an attack on the basic dignity of a customer to be denied goods and services normally open to the public for discriminatory reasons.

  • steve shay

    Tony, Well, I, for one appreciate your comments, and all comments that help clarify controversy. Dr. Silk can of course speak for himself, but I sense that his articles are somewhat benign, designed to lay the groundwork for discussion and (healthy) debate. In my view you are reading too much into his “operating principles.”

    Regarding hypocrisy, it appears in most all aspects of controversial topics and I feel it is throwing the baby out with the bathwater to dismiss an entire point of view when hypocrisy can be found.

    For example, I live in Seattle. There has been a big push here to limit cigarette smoking both indoors and out, yet now in our state one can legally smoke marijuana outdoors, in public places, and it is admired and almost encouraged. And while marijuana is not proven to be an entree drug, it certainly will encourage young people to smoke cigarettes. This is hypocrisy, yet jailing such offenders is a waste of resources and burdens the system.

  • tony


    First, if you read my response I don’t believe the bakers are discriminating against PEOPLE they are discriminating against participation in an ACT. Second, constitutional amendments restrict the GOVERNMENT not the people. Third, by refusing to support the catholic view on traditional marriage aren’t you shaming them, implicitly convicting them of bigotry, hatred and ignorance. Shouldn’t you be required to attend their services and donate money to stimulate additional economic activity?

  • tony

    Steve the first requirement for a healthy debate is skepticism. In this case, Dr Silk’s blog always has the same heroes and the same villains – Catholics, Mormons and anyone who is not a devotee to secular humanism. He is not an innocent arbiter, he has his thumb on the scale. Moreover, he doesn’t unbiasedly analyze acts in light of principle and prudence. He mentions acts as merely a foray to impugning motives, intelligence and good will. He does all of this while claiming the other side to be judgmental and himself to be liberal, someone who is fundamentally open to experiences and perspectives of another. Yet if you read this blog, he is really as bigoted as the people he denounces and is only open to the mantra “What is truth?”

  • samuel Johnston

    I once had brief conversation with a local federal judge, in which I complained that my client had not received the same consideration as his opponent (i.e., we lost the case). His response shocked me. He said “Your client is not a member of a protected class”.
    My opinion is that equal treatment by the government is preferable in the long run to any special considerations, such as affirmative action, or “civil rights” laws, which are really not about enforcement of constitutional rights, but are rather about remedial actions for groups. Social interactions are exceedingly complex, and remedial actions tend to favor one group over another without proper regard for individualized justice or rapidly changing social norms. In the short run they may be necessary to address a specific situation- voting rights for blacks in the South, for example, or public accommodation laws, but they are like martial law, an extreme tool to address an extreme situation. They should be of short duration and specifically directed, before they succumb to the pressure of being just another bureaucratic agency.
    As to Gays, I can see overturning sodomy laws, as discriminatory, but I cannot support gay marriage (as opposed to civil unions, which are basically contractual). Marriage is a very old institution, highly evolved, which is only partially successful in achieving it’s social goals of promoting civil order, and protecting, and subsidizing the next generation of citizens. Gay unions may or may not serve some or all of these purposes, but the evidence needs to come in over time, rather than to just be assumed. I am not a supporter of religious institutions being superior to the civil institutions, but I am concerned that individual rights promoted as the supreme good can so weaken the power of the state, that it can no longer promote the “general welfare” and perform other important duties.
    I am also concerned that tolerance (meaning respect for other points of view, especially traditional ones) has become so unfashionable, that the only acceptable opinion -enthusiastic, take no prisoners, support- has become the minimum requirement for good standing in most groups, even many academic ones.

  • samuel Johnston

    This article illustrates the legal mess we have created with our good intentions.

  • Larry

    But they are discriminating. Your view of the action doesn’t change that. Denial of goods and service based on personal animus of an outside characteristic of the customer is discrimination.

    It doesn’t matter what excuse you make for the action. The end result is still the same. Cutting off the flow of free commerce based on one’s sectarian animosity is something the government has a keen interest and clearly defined power to prevent.

    Once you open the door to legalized business discrimination, you allow every form of commerce to be denied a given group. You create defacto segregation. This attacks the basic dignity The open marketplace becomes restricted and ultimately harmful to those shut out of it.

    If your business is open to the public, you have no excuses to discriminate. Its the price you pay for engaging in an activity regulated by government affecting daily mundane activities of others.

    Plus as I said before, if you are too much of a bigoted jerk or just too stupid to come up with a legitimate plausible excuse not to take business, you deserve to be sued as a matter of principle. Stupidity and hateful actions should not be rewarded.