The View of Religious Freedom and Sexual Freedom From A Plane

The other day I was on a short domestic flight. Little did I know it would be a great learning experience. I was seated on the aisle and sitting across from me were two people having a friendly, but heated, conversation about Religious Freedom and LGBT Rights. Given what I have been working on I thought, wow, what a small world, but kept my mouth shut and listened. The man sitting closest to me was talking about a recent case in Pennsylvania that may have involved discrimination against an LGBT couple by neighbors (more on that case in a moment). The woman sitting next to him in the window seat mentioned the bakery case from Colorado. Neither used the names of the cases, but I figured the man was talking about the Bucktoe Manor Architectural Control Committee et. al. v. Davis et. al. case, which has recently made headlines, and that the woman was talking about the Masterpiece Cakeshop case.

The conversation was centered on who was being discriminated against the most, religious people who oppose same-sex marriage or the LGBT community. Each made arguments that were interesting and much better than what I often overhear when people raise these topics, and certainly better than I often hear in news stories. The man mentioned what had happened to the couple involved in the Pennsylvania case and their kids. I assumed he was referencing Keith Davis and his partner David Ruth and their kids. For those of you not familiar with the situation. Davis and Ruth were sued by neighbors over a fence shortly after moving to a neighborhood. A court found that neighborhood rules were selectively enforced against the couple and that their being gay seemed to be a major factor in that selective enforcement. To make matters worse the words “Get Out Fags” was spray painted on their garage (and they were the victims of other acts of vandalism). The case does not involve any religious defense, but it is a disturbing situation that involved brazen homophobic discrimination. The man on the plane did a good job explaining what happened, but then said something to the effect that there is too much discrimination against gay people and that “religion” laws are protecting people who discriminate.

The woman with whom he was speaking agreed the situation he described was terrible, but said “religion” laws are not the problem. She then mentioned the “bakery owner in Colorado,” who I assumed was Jack Phillips, the owner of the Masterpiece Cakeshop. She did a good job stating the basic situation that gave rise to the Masterpiece Cakeshop case. Phillips owned and ran a small bakery and he had no problem serving anyone, whether gay or not. He also had no problem making cakes, pastries, etc. for any family event whether the event was for a straight or gay couple. Phillips, who is a born again Christian, did however, have a problem with baking a wedding cake for a same-sex marriage because he believes it is a sin to be complicit in a marriage that is not between one man and one woman. As a result he was sued. As readers of this blog know he lost his case. Interestingly, the woman argued that this was discrimination against him for being Christian and that there are many similar cases.

I must admit that I had not viewed the case or its result as discrimination against Phillips, but rather as a possible violation of his civil liberties. The key, at least in my mind, was whether an appropriate accommodation could be found to protect his religious freedom, but which would not harm the couple who sought his services. The woman on the plane, however, made a powerful argument that “the baker” (Phillips) didn’t have any problem with members of the LGBT community and did not mean to harm anyone since he would have been happy to help the couple with anything else, so that the lawsuit and ruling in the case were targeting, i.e. discriminating, against him based on his religion. The man said that is a terrible situation and asked if she knew why the couple didn’t just go to a different bakery. He explained that if it had been him and his partner they might have been offended, but would have respected Phillips religion and gone elsewhere for their cake.

I finally chimed in and introduced myself as someone with a bit of background in the area. I thanked them both for having such a calm and thoughtful conversation and explained that it would be wonderful if more people could share and empathize with people on both sides of the debate as they each had done. I suggested that good “religion” laws are not a problem, but that some states have been trying to pass laws targeting members of the LGBT community and those are a problem. I also explained that these laws have been struck down by a court in Mississippi and are likely to be struck down in North Carolina and elsewhere when they arise. I suggested that “good” religious freedom laws protect many people from government substantially interfering with their religion.

I also suggested that perhaps both the “baker” (Jack Phillips) and the same-sex couple for whom he refused to make a wedding cake faced discrimination. The couple went to a shop for a wedding cake and they were discriminated against based on their marriage and sexual orientation. Phillips’ sincere religious belief did not minimize the pain of that discrimination. Yet, Phillips himself was the victim of a system that forced him to violate his religious tenets or stop making wedding cakes, which is a major way in which his bakery supported itself. The fact that he could make other cakes would not lessen his pain either. I suggested that the best thing would be to have strong laws protecting members of the LGBT community and strong laws protecting religious freedom, but that even then what to do about small family owned businesses was tough because they serve the general public. The ideal would be for people to just leave these sorts of businesses alone and not sue unless they discriminate against gay patrons or same-sex couples more generally, but I explained that is not likely to happen in today’s climate with both sides seeking out “test cases.”

I thanked them for their thoughtfulness and said the best hope moving forward is good people like them having rational empathetic discussion that can allow us to build bridges. I gave them each a business card and walked off the plane with a sense of hope that the middle may yet find it’s voice.

 

8 thoughts on “The View of Religious Freedom and Sexual Freedom From A Plane

  1. AbnormalWrench (@AbnormalWrench) July 26, 2016 / 7:23 pm

    I’m having trouble understanding your appeal to compromise. Do you think there should be compromise for people who want to discriminate against other suspect classes? Would you make a similar argument for a restaurant worker that doesn’t want to serve black people?

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    • fravitch12 July 26, 2016 / 8:18 pm

      My appeal to compromise is based on the importance in a pluralistic society of protecting both the rights of the LGBT community and religious freedom (in most situations–for example the ability to wear a head covering in court–religious freedom claims have no serious impact on anyone other than the person of faith asserting the claim). Still, there is a significant difference between excusing for-profit entities that discriminate against members of the LGBT community and excusing religious individuals and entities. Please see my post on the Hobby Lobby case.

      Of course I do not support allowing restaurant workers to discriminate based on race or sexual orientation. That is a different situation from most of what I address on this blog. I have repeatedly pointed out that religious freedom laws should not be used to shield social homophobia. There are, however, religions which believe facilitating same-sex marriage makes one complicit in sin. The question is whether we can accommodate members of these religions in our pluralistic society. Clearly, we can accommodate houses and worship that choose not to perform same-sex ceremonies and individuals who choose not to attend, but the questions become harder when we get to businesses like Jack Phillip’s bakery who refuse to perform services related to a same-sex wedding. These are not situations where they refuse to serve members of the LGBT community generally–I am clear that sort of discrimination can not and should not ever be protected by religious freedom laws. Businesses serve the general public and the question is whether they can be accommodated in the same-sex marriage context without doing harm to the couples seeking their services. For larger businesses I think this is impossible and same-sex marriage (and reproductive freedom rights) should always prevail in these cases. In small family owned shop cases, however, so long as their concern is related to a sincerely held religious belief about marriage and they do not discriminate more broadly I have pointed out it is a closer question. Perhaps they can be accommodated and perhaps they can not. The key will be if there is a way to do so that does no harm to the couple seeking their services.

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      • AbnormalWrench (@AbnormalWrench) July 26, 2016 / 8:30 pm

        I hope I don’t need to point out there are many people that justify racism with religion, which is why I have trouble understanding your distinction. If they are not comparable, what is different between them? If you wish to change the analogy to a black couple or interracial couple getting married and looking for services related to such, then let us entertain that. I can’t imagine any compromise happening in that situation because the person or group has religious objections, or anyone sympathizing with their religious sensibilities.

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      • fravitch12 July 26, 2016 / 9:12 pm

        I spend a lot of time in the book explaining the difference between the two situations as related to marriage only, and this is despite the fact that I have supported same-sex marriage since before it was viewed as a major issue by the general public. A prime difference is that in the race context even the religious objections were based on an overall view of white supremacy that went well beyond marriage, whereas in the same-sex marriage context this is not the case (and I am clear that where religious objections to same-sex marriage are just part of a broader view of hetero supremacy the religious objections lose). One of the best ways to demonstrate this difference succinctly is to compare excerpts from the seminal cases in each context.

        In the race context the Court said in Loving v. Virginia: “The fact that Virginia prohibits only interracial marriages involving white persons demonstrates that the racial classifications must stand on their own justification, as measures designed to maintain white supremacy.” Compare that to the following quote from the Court in Obergefell v. Hodges: “Finally, it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their deep aspirations to continue the family structure they have long revered.” It is unthinkable that the Loving Court would have written anything of the sort about those who had religious objections to interracial marriage. The contexts are different.

        I, like you, personally find discrimination, even by religious entities, based on same-sex marriage to be socially and theologically horrific, but I also know that is because my belief system supports same-sex marriage. If you compare the statements of Baronnelle Stutzman or Jack Phillips to those of the folks making religious claims against interracial marriage the difference is obvious. Neither Stutzman or Phillips had any objection to serving members of the LGBT community generally and had no sense of hetero dominance or superiority that they were religiously devoted too. As I note, they still might have no valid legal claim because they are for-profit businesses, but there are good reasons to try to find an accommodation that does no harm to the same-sex couples seeking their services.

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      • AbnormalWrench (@AbnormalWrench) July 28, 2016 / 2:33 am

        I appreciate the reply, and having not read the book in question, I guess I shouldn’t be surprised you address this exact issue. I still have trouble accepting the distinction you are making because it is a bit arbitrary. I can easily imagine a time in the future that the theological distinctions will be seen as equally unjustifiable as the distaste of interracial marriage (which isn’t completely accepted yet). To me the bigger issue is whether they are a suspect class, and I can’t see how anyone could argue they aren’t without embarrassing themselves. Once that is established, it is clearly deserving the same level of protection. Naive I know, since the supreme court can’t even say it outright…yet. Some day.

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      • fravitch12 July 28, 2016 / 6:32 pm

        SCOTUS has been slow to include any classification other than race and national origin within suspect class status, but I think you are correct that sexual orientation could theoretically fit, and it certainly could fit quasi-suspect class status, as gender does. Moreover, there are significant substantive due process protections based on sexual orientation after Lawrence v. Texas and Obergefell v. Hodges. Either way religious defenses would still exist for religious entities and individuals. For profits entities would be a different story.

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  2. readerjohn July 26, 2016 / 9:53 pm

    As Professor Ravitch recounts it, the airplane conversation was indeed civil (though what plane is quiet enough to hear a conversation across the aisle unless they were on the ground?).
    Be it remembered, as Professor Ravitch no doubt does, that the gay couple by suing were trying to force Jack Phillips to design and create a unique work of art for their wedding (or to crush him if he refused).
    I’m not aware of any high-profile case of “discrimination” that involves refusal to sell existing merchandise (the cake in the case, the flowers in the cooler, the picture frame on display) to gay people or gay couples bound for the wedding chapel.
    I detest compelled expression, as seemingly does SCOTUS, as a violation of the first amendment speech clause, and believe that Phillips will win on free speech grounds if SCOTUS takes his case. I suspect that florists and photographers, who reject requests for custom floral arrangements or wedding photos, will get similar treatment with Phillips.
    If one is allowed to balance dignitary harms, I think the experience of having the entire apparatus of government directed toward compelling you to use your creative abilities to celebrate something you disapprove, branding you an enemy of the people if you resist, is far greater than the experience of finding out that some small business owners don’t believe your marriage is something they should help you celebrate.

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    • fravitch12 July 27, 2016 / 12:43 am

      I’m not sure what will happen if SCOTUS hears the Masterpiece Cakeshop case. I can say that the flight was on an Embraer 175, which was remarkably quiet; although I will admit that as soon as I heard what they were talking about I began to listen carefully! I am lucky it was not an Airbus 319 or 320 because they are so loud I could not have heard myself think, let alone them.

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