It was most disheartening to hear that most intelligent network news, NPR, reporting Saturday night on religious freedom claims to exemption from the abortifacient mandate and “religious freedom” to decline commissions for works of art in celebration of events the artist doesn’t wish to celebrate.
On the abortifacient mandate, the coverage wasn’t bad. For one thing, NPR involved Kristina Arriaga, Executive Director of Becket Fund for Religious Liberty, an able religious freedom spokesman. I think the Little Sisters of the Poor got a fair shake –maybe even better than a fair shake considering how the spokesman for the opposing case, “Jay Michaelson, a fellow at the liberal Political Research Associates” demagogued his choir:
I think we’d all agree that a church shouldn’t be compelled to perform a ceremony that it doesn’t want to perform. [Gee, thanks Mr. Magnanimous!] Then the next level up is religious organizations. So Catholic hospitals, Catholic charities — do they have to obey the same laws as everyone else, or do they have a separate set of laws that applies only to them?
I’ll come back to that paragraph.
But on the artists declining commissions, NPR and just about everyone they talked to blew it.
If you haven’t heard about these cases, let me explain. The artists I’m talking about are bakeries, who create commissioned, artistically decorated cakes and other baked goods. One of the owner-artists, a self-described “follower of Jesus Christ,” declined to bake a wedding cake for two men while offering to sell them cookies, birthday cakes or any other kind of baked goods. (Now does it ring a bell?)
He predictably got sued. Less predictably, from my perspective, he lost.
NPR presented his as a “religious freedom” objection. So, for that matter, did he. And the Becket Fund (which isn’t necessarily representing him, so far as they story revealed).
But I don’t see what the religious motivation for declining a artistic commission has to do with anything, whence my use of scare quotes in the opening paragraph.
I do see this as an artistic commission, as I think everyone should. And for my money, it’s easy: American laws cannot coerce expression, verbal or artistic.
But note the implied parallel of Mr. Michaelson, above: unlike a church, which should not be compelled to “perform a ceremony” that it doesn’t want to perform, organizations, hospitals, charities, not to mention butchers, bakers, candlestick makers, and others, should be compelled to perform services they don’t want to perform. (Stay tuned. It gets worse.)
The would-be customers didn’t want to buy a cake, already made, from the display case. They wanted a custom cake. That more people may be able to bake and decorate cakes than can paint portraits; that a cake, fully decorated, may involve much less investment of time than a bronze bust; these don’t alter the principle. Yet the courts have now said that this (cake) artist must express an artistic sentiment that he does not hold. That coerced expression is abhorrent and must not be allowed to stand.
(I had an extended back-and-forth with a close friend on Facebook over a related case: a maliciously ugly and insulting birthday cake as the deliverable when one lesbian ordered a birthday cake for her mate. Is that what we want: take the commission but deliver an inferior result, like “throwing the game” in sports?! Or take it, suppress your convictions – maybe even a gag reflex – and deliver the most beautiful bit of coerced propaganda the government could hope for?)
The same principle applies to floral arrangements, to photographers and to a category that I’m unaware of having been sued so far: musicians for the ceremony or the reception. There’s no shortage of bakers, florists, photographers and musicians to service same-sex weddings. But even if there were, coerced expression is worse than celebrating with a cake baked by a friend or home made by one of the loving pair.
So NPR’s coverage was disappointing, first, because neither the baker nor Beckett Fund used my pet theory. Big deal.
But the other objection is that even on the baker’s apparent theory that he gets an exemption from public accommodations laws because he has a religious objection, NPR’s expression of the countervailing interest was beyond stupid:
What about the argument that this is looking at liberty and rights from the wrong direction – that the freedom of same-sex couples to be married and to express their vows before God in a way that’s consistent with their religion, and prohibiting them from getting married suppresses their basic right to their religious expression?
I’m almost dumbstruck by the stupidity of that. In what sense does this baker, this florist, this photographer, declining to participate interfere with their religion? In what way does it “prohibit them from getting married” or “suppress their basic right to religious expression”? If that cake is necessary to “religious expression,” are we now talking not just about coercing insincere expression, but conscripting concelebrants?
My argument is limited to artistic expression. I don’t even think that artistic expression – the custom made cake, the special flower arrangement, the live band rather than a commercial CD – should be considered “public accommodations” at all. I don’t see how you may ever force anyone to offer artistic expression to all comers, for all occasions. And before you say otherwise, consider the black baker provocatively set up by the Klansman this Spring ordering a custom cake to celebrate the 46th anniversary of MLK’s assassination (“and make it beautiful, capiche?”).
I’m not expressing an opinion on clothing rentals (e.g, two tuxedos instead of one dress, one tuxedo) or other fungible goods. If the couple had been willing to buy an “over the counter” cake rather than a custom one, that, too, would be a tougher case.
But I’m incredulous at the run of losses by bakers and photographers. I’ll be sorely disappointed if someone doesn’t drop the religious exemption argument, or at least pair it with the much stronger coerced expression argument. When they do, expect to hear a lot about Hurley, a case where a smug and nearly unanimous Massachusetts Supreme Court got a unanimous reversal from SCOTUS.
I guess “rough cut” can be pretty rough. I’m a little old to be a fanboy, but I was a fan of the band Adam Again. It was a Christian funk band, soul-baring in way that smashed CCM formulae. I.e., it was real.
If you’ve got 24 minutes, you can try this rough cut Adam Again documentary. Adam Again’s muse, “Gene Eugene,” died just short of age 39 in 2000, of a brain aneurysm. I found out some years later when I went looking for their latest, of which there was none. I don’t get morose about such things, but more than Jim Morrison and Jimmy Hendrix – maybe about as much as Janis Joplin – I wish he had lasted longer.
What is it with all these Black Presidents of recently-racist countries lying about their religion? Sheesh!</Snark>
I guess lies aren’t lies, and reckless speculation doesn’t transgress the command against bearing false witness, if the target is a darker-toned political opponent.
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“The remarks made in this essay do not represent scholarly research. They are intended as topical stimulations for conversation among intelligent and informed people.” (Gerhart Niemeyer)