RFRA revisited – an irenic set of hypotheticals

As the scorching heat has begun to reduce, the energy over Indiana RFRA has begun to manifest as light.

Today’s newspaper, and Twitter and Facebook, have continued my RFRA thinking. Someone I’ve known for 50+ years pushed back a bit on something I wrote, and for some reason his very brief comment “clicked” with me.

So I’m relenting from RFRA Wind-Down and offering one more, that’s likely to lead to others. I don’t intend to have this posted on social media until after my Holy Week, though, since that’s where most people seem to read and react. This is more of a Journal entry until then.

I’ve come to understand (if not to agree with) the reaction against the law because of the personalities and interest groups behind it, and how poorly politicians articulated the need for it. That makes left conspiracy theorists salivate, as it would those on the right were the roles reversed. (Nota bene: I’ve never seen the press demand a list of concrete problems necessitating any left-leaning Bill. Just sayin’.)

And I’ve come to appreciate that those shouting past each other (“Bigot!” and “God-hater!”, roughly) may have different cases in mind.

With that, I offer seven hypothetical or paradigmatic cases that I consider more or less arranged by increasing justification for the recalcitrant baker:

  1. Customer walks into bakery. Customer says, pointing, “I’d like to buy a dozen of those cookies.” Baker hands him a questionnaire, including “sexual orientation” and refuses to sell because the answer is “Gay.” “We don’t serve your kind. Get out of here!”
  2. Customer walks into bakery. Customer says “I’d like to order a wedding cake. May I see your portfolio?” After seeing the portfolio, customer says “I’d like #3, exactly as pictured. I’ll pick it up before noon, May 27.” Baker hands him a questionnaire, including “who’s getting married?”, and refuses to sell because the answer is “Adam and Fred.”
  3. Customer walks into bakery. Customer says “I’d like to order a wedding cake. May I see your portfolio?” After seeing the portfolio, customer says “I’d like #3, exactly as pictured. Deliver it to Metropolitan Community Church by noon, May 27.” Baker says: “Whoa! Not so fast! Metropolitan Community Church? Who is getting married? This isn’t a gay wedding is it? I won’t do the cake if it is.”
  4. Customer walks into bakery. Customer says “I’d like to order a wedding cake. May I see your portfolio?” After seeing the portfolio, customer says “I’d like #3, but with two men on top. Deliver it to Metropolitan Community Church by noon, May 27.” Baker says: “Whoa! Not so fast! I won’t put two men on two women on a wedding cake because that’s not what marriage is.”
  5. Two guys walk into bakery. They say “We’d like to order a wedding cake for our upcoming wedding. We’d like to see your portfolio.” Baker says “No need to bother. I won’t do that kind of wedding, even if you just want something straight out of the portfolio.”
  6. Two guys walk into bakery. They say “We’d like to order a wedding cake for our upcoming wedding. We’d like to see your portfolio.” After looking at the portfolio, guys say “We’d like #3, but with two men on top.” Baker says “I’ll do #3 without any figures on top, but not with two men or two women. That’s not what I believe marriage is.”
  7. Two guys walk into bakery. They say “We’d like to order a wedding cake for our upcoming wedding. We’ve seen your work and like it. But we don’t need to see your portfolio. SSM is new and exciting, and your designs are pretty traditional. Make us something new, exciting, one-of-a-kind, and celebrative of our union.” Baker says: “I’m sorry. I don’t have the artistic vocabulary for celebrating SSM. You’d be better off going to someone who’s excited by this new thing.” Customer says “You’re just saying that because you’re a Christianist bigot. We want you to do a custom cake and we’ll see you in court if you refuse.”

With enough time, I could probably come up with extra gradations.

If the people yelling “Bigot!” have case 1 in mind, I’m with them. Case 1 is outrageous, but many, many comment boxes were filled with suggestions that such a thing was exactly what would come from RFRA. They’re wrong about what RFRA would produce, but they’re right that in Case 1, the baker’s wrong. (Got that?)

If they have case 7 in mind, I’m inclined to yell back <hyperbole>”God-hater!”</hyperbole>

One writer has proposed a scriptural proof-text for what to do: “If anyone forces you to go one mile, go with them two miles.” (Matthew 5:41) She writes a winsome “Bake for them two.” Some of my friends are quite smitten with that article, but after an initial flush of good will, I’m not smitten with it at all. I’m not sure what kind of case she and they have in mind, but it appears to be in the 6-7 range from how she set it up.

If she has numbers 6 or 7 in mind, I’d suggest that the apt Bible principle, for those who want chapter and verse, is I Corinthians 10:18-28, but especially 25-26, 28:

Eat anything sold in the meat market without raising questions of conscience, for, “The earth is the Lord’s, and everything in it.” … But if anyone says to you, “This has been offered in sacrifice,” then do not eat it, both for the sake of the man who told you and for conscience’ sake.

Or, being translated, “bake anything without looking for trouble, but if trouble comes looking for you, don’t dodge it.”

I’m not really interested in debate over which proof-text fits better. I left battling proof-texts behind when I saw the 40,000 denominations (and counting) it has spawned. I’m just saying “bake for them two” is an arbitrary choice, and probably not the best. It’s certainly not the only relevant one.

Translated to other trades, like photography, it seems to me that there are no portfolios a photographer could replicate exactly, and that every commission is unique. They’re all “number 7s.” It’s not “looking for trouble” to ask details about the time, place, spouses, etc. in preparation for taking the job, and if it is a same-sex wedding, that will invariably come out in the course of that preliminary work.

I hope case 7 sheds light on why I’ve been adamant about the need for exceptions to non-discrimination laws. Case number 7 has been, roughly, the case I’ve had in mind. Number 7 clearly calls for the baker to draw on creativity and imagination to celebrate a same-sex wedding that, for whatever reason, she’s not prepared to celebrate. That’s got both “free speech” and “free exercise” violation written all over it if government compels such expression.

A RFRA is about as narrow an exception as I can imagine: you get your day in court, trying to prove that your religious/conscience/free speech exemption claim outweighs the need for 100% enforcement of an anti-discrimination law or ordinance and the other guy gets to say “no, anti-discrimination is a compelling government interest and anything less than 100% guts that whole interest.” (Again, RFRA is about far more than discrimination claims between merchant and customer, but that’s the hot button issue.)

Thoughts? This is meant to prompt dialog.

I hope soon to attempt an analysis of whether it’s advisable for a Christian to acquiesce in cases like 6 and 7, or whether perhaps it’s very wrong to do so, analyzing via some tools from moral theology, such as formal participation, material participation and their variants.

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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)

Some succinct standing advice on recurring themes.