Category: Discrimination

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.

* * * * *

“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.

Vacation: too brief, too close to home

  1. One simple RFRA question
  2. Christian Conservatives: Have you figured it out yet?
  3. A Real Theocrat
  4. The last time local media were in such high dudgeon
  5. A Proverb that influenced this blog

Continue reading “Vacation: too brief, too close to home” →

Middleweight SSM Opponents duke it out

When it comes to florists, photographers and bakers who decline to service same-sex weddings, I thought the arguments for the two (or more) sides were getting a bit stale.

I don’t exclude my own arguments (although I was pretty pleased with my insight that the law’s burden of persuasion has tellingly if tacitly shifted from (a) the customer seeking to impress artisans into involuntary servitude to (b) the artisans who resist slavishly valorizing some of the most bizarre conceits of the Zeitgeist).

But to my surprise, there’s something interesting (maybe even new and fresh) going on at the Witherspoon Institute’s Public Discourse: a couple of middleweights fairly cordially duking it out, both starting with the premise that same-sex marriage is bad:

Russell Nieli and Jeffery J. Ventrella have been arguing here at Public Discourse about how shopkeepers, such as bakers or photographers, should respond to antidiscrimination laws that require them to provide services at same-sex weddings when they object, on religious or moral grounds, to same-sex unions. Nieli and Ventrella agree that it would be morally permissible and even commendable for such shopkeepers to avoid violating the law by ceasing to serve all weddings, whether traditional or same-sex, or even by ceasing operations completely and finding another line of work. They disagree, however, about a third option proposed by Nieli.

Nieli suggests that it would be morally permissible for such shopkeepers to comply with the law and provide services to same-sex couples if they also announced publicly, perhaps through signs prominently displayed in their businesses, that they believe that marriage is a union of one man and one woman, that the relevant antidiscrimination laws infringe their freedom of conscience, and that they are complying with these laws only under protest and out of respect for the rule of law and the democratic process.

That’s the launching pad for Professor Robert T. Miller’s own foray into moral theology, full of concepts like formal cooperation, material cooperation, just law, unjust law, double effect, and proportionality to “make some distinctions that both Nieli and Ventrella overlook.”

Prof. Miller is keen to emphasize the moral licitness of “material cooperation” with evil (what the reluctant baker, florist or photographer are doing if they go along) when, shall we call them, the plusses and minuses tilt. A watchman unlocking a door for robbers because a gun is at his head, not because he’s in cahoots, is a classic example of the distinction between material and formal cooperation.

The proportionality analysis in cooperation cases has generally concerned such factors as the magnitude of the good the cooperator intends in performing the action constituting cooperation, the closeness of the causal connection between the cooperator’s action and the primary wrongdoer’s action, the degree to which the primary wrongdoer’s action depends on cooperation from the cooperator, and the degree of wrongness of the primary wrongdoer’s action.

Now, the good that the shopkeeper intends is undoubtedly very great: complying with a properly-enacted law, avoiding the stigma and penalties that would come from breaking the law, protecting the goodwill of his business, and earning a just profit by selling his services would each, taken singly, be accounted great goods. Taken together, they comprise a very great good indeed. This implies that cooperation in order to attain these goods will be justified unless the other factors, taken collectively, are extremely powerful.

As to both proximity and dispensability, the shopkeeper’s cooperation with the primary wrongdoer is very slight. There’s no question but that the causal connection between selling a wedding cake to a marrying same-sex couple and any same-sex sexual conduct in which they may engage is very remote. The causal connection with the couple’s action of exchanging vows and getting married is closer, but still remote. It’s not as if the shopkeeper is performing or witnessing the ceremony; at most, he is making the party afterward more enjoyable and memorable. Moreover, the shopkeeper’s cooperating action is dispensable two times over: for not only will some other baker supply the wedding cake if this baker declines to do so, but the same-sex couple would undoubtedly get married even if every shopkeeper refused to sell them a wedding cake. Cakes, flowers, and photographs are very nice accoutrements to a wedding, but they are not essential, and a great many people get married every day without any of these things.

That leaves us with the issue of the gravity of the wrong that the cooperating agent helps or facilitates ….

As for “complying with a properly-enacted law, avoiding the stigma and penalties that would come from breaking the law,” I wonder if he has overlooked the possibility that “a properly-enacted law” is unconstitutional, and thus not “properly-enacted,” if it contains no exception allowing artisans to discern what they’re willing to express for a commission. No comment box allowed me to pose the question to the good Professor, though. (That is a little frustrating, but I’ve seen comments turn into cesspools without attentive moderation, so I understand the choice.)

Professor Millr has even got a link to the Kindle version of Moral Theology A Complete Course Based on St. Thomas Aquinas and the Best Modern Authorities, which is on offer – all 1395 pages(!) – for the very reasonable price of “free.” I suspect this means that the “best modern authorities” are at least one copyright cycle old, but unless the examples are impenetrable to the modern reader, it’s hard to think that the book isn’t worth that price.

As for the underlying Nieli/Ventrella debate, I think Ventrella comes across as the religious freedom litigator he is (Alliance Defending Freedom, a/k/a ADF), unwilling to allow that his clients might have mistaken a moral option for a moral duty, and I think Miller if not Nieli refutes his hyperbole pretty well.

I’m old enough to recall when Christians were called “hypocrites” if they only practiced their faith at Church on Sunday, and didn’t take it into the marketplace with them the rest of the week. Now we’re called “bigots” if we do – unless our Christianity is anodyne Religion of Nice.

But it behooves us at least to try to understand with utmost clarity what faith and conscience do require of us in the marketplace, so I’m looking forward to reading my new free Kindle book (one of these years, real soon now).

* * * * *

“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.

Craftsmanship, Worldview & Coercion

One upon a time, yours truly thought he might want to become a professional photographer. It didn’t hurt that I was in some demand on campus by comely co-eds who wanted to send glamorous photos to their current boyfriends (soon to be replaced by me, I fancied) in Vietnam.

“Glamorous,” by the way, isn’t a euphemism for nude. Sexting hadn’t been invented yet, and in any event, these campuses were pretty conservative.

Still, if some guy had wanted me to do glamorous photos for his girlfriend, the W.A.C. Nurse in ‘Nam, I’d have been at a bit of a loss for a photographic vocabulary. I probably could have learned in time how to photograph a guy so as to fill women with at least vague admiration or longing, but I never decided actually to go pro. I’d be a poor photographer of football, or NASCAR racing, too, as I have no enthusiasm of them and don’t feel obliged to learn how to fake it.

Coincidentally, but in a similar vein, I turned down this week a professional engagement by a desperately needy human being with a real problem – several of them. Our initial failure to mesh expectations warned me that an attorney/client relationship would end up disappointing both of us.

So I sympathize particularly with the photographer who declines engagement for an event that he cannot imagine portraying in a way that would both meet his artistic standards and please the event organizer. I’ve watched the Food Channel just enough to recognize the expressive element in custom cakes, too. And I’ve heard a florist vehemently assert that there is a real artistic element in floral arranging, though on my own, I can’t fathom it.

For a number of craftsmen, though, the first thing that pops out of their mouth (and so, presumably, the first thing that came to mind) when asked to contribute to a same-sex “marriage,” is something like “I can’t do that. It would violate God’s commandments.”

The legalism of that baffles me (though it just occurred to me that “legalism” in this context is really Nominalism, in contrast to the Realism of what follow).

How better, it seems to me, if they said (and if this truthfully were in their hearts) something more like this:

I’ve thought about what to do when this day came. You’ve been my customer for years, and I value you as a human being as well as a customer.

But, like you and everyone else, I have a worldview. It’s not something I superimpose on reality, but is simply how I perceive reality, how I see things interrelating. That I see things differently than others would, in most situations, be celebrated as “diversity.”

But in my worldview, two people of the same sex can’t marry each other. Not “must not,” but “cannot.” It’s not in the nature of “marriage” as a natural institution, however much that institution may have varied over the millennia. I know that “diversity” today seems to have little room for the consequences of my view.

My worldview is certainly shaped, though not dictated, by my religious tradition. It’s not dictate partly because the Scriptures I revere say nothing about same-sex “marriage,” as such a thing was not even imaginable. And it’s not dictated because, believe it or not, when my clergy preach about sin, as they sometimes do (though they preach of grace more), they tend to focus on sins that affect all of us, like pride, rather than maybe 2% of us.

But back to my being shaped by the Christian scriptures. There are no “child-free” couples in those pages – only (1) parents and (2) barren couples who were grieved by their barrenness – grieved sometimes to tears. Our wedding rite is chock-full of blessings for fertility, even for marriages between aging folks, as it is unequivocally assumed as one end of marriage. And we haven’t forgotten Abram and Sarai.

Even in my former tradition, it was a given that married couples made babies if possible. They might delay a few years for various reasons (I wasn’t Roman Catholic), but sooner or later they threw caution to the wind, expecting the blessing of baby burbles in due course.

These “religious” things inform my worldview along with – let me be frank – an incoherent jumble of enlightenment rationalism, “Right Liberalism,” Natural Law thinking, philosophical Realism (versus Nominalism), years of public school homogenization, mass media transgressivism for titillation and heightened viewership, a bit of libertarianism that’s suspicious of government dictating to us or handing out goodies for the sake of votes rather than for any enduring public good, and the kind of secularism that James K.A. Smith writes about, whereby I see my tradition as but one option.

The tradition of the Church in which you’re holding your ceremony apparently is otherwise. Civility is one of my secular sacraments. So is tolerance for a religious tradition that baffles me. But there are limits to what I can do.

My profession involves expression, and I’ve had no epiphany that enables me to express joy and delight in the “marriage” you’re entering, which will never produce baby burbles and looks nothing like one that ever could have. You’d be better served by someone who’s had such an epiphany or is willing to give it a shot anyway.

I’m flattered you asked, and I’d like to think you asked because you admire my work. But I’m going to have to decline this commission. I don’t think I’d be happy with the result if I tried, and I doubt that you would be, either.

Yes, that’s too long and preachy. It could use some distilling. But the distiller should be the religious (probably Christian) photographer, baker or florist to whom I’m primarily writing:

  • If you couldn’t say something like what I wrote without being disingenuous;
  • if you’d feel as if you were just positioning yourself more sympathetically for a Court or Human Relations Commission hearing;
  • if the real, bedrock basis of your refusal is that you think it would violate God’s commandments to photograph a same-sex wedding (or to bake a cake for the reception or to make floral arrangements for the affair) but it would not interfere with your artistry in celebrating a SSM to believe that;
  • if you’re really and truly thinking “I could do a wonderful job of this, and you’d be thrilled at the result, but I’m scared of hellfire if I do;”

then I’m still rooting for you in the Court or Human Relations Commission, but I do not understand you, and I support you mostly to avoid bad precedent.

And if you’re really and truly thinking

  • “I won’t sell you that cake from my ready-made bakery case;” or
  • “I won’t sell you this bouquet in the refrigerator;” or
  • “I won’t sell you this picture frame on display;

because you’re going to misuse it,” then you’ll have to muddle through without my support at all.

* * * * *

“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)

These remarks are an expression of decades of reflection, and more than a bit of legal and religious knowledge, about religious freedom, free speech, expressive speech, protected class status, and the distinction between discrimination simpliciter (i.e., discernment) and invidious discrimination. I may be wrong – I was wrong once before – but not because I’m shooting from the hip..

Some succinct standing advice on recurring themes.