What Do You Do With a Problem Like Freedom?

I saw this amusing video where confused college students willingly walk into proud and unaware declarations of hypocrisy concerning religious freedom.  Videos like this prove little about the actual merits of an argument because it’s not hard to find someone who supports a position while simultaneously not having thought it through very deeply.  It could be that there are thoughtful people with great reasons for holding a viewpoint, but you can be sure the producer of the video isn’t going to put them in the montage for one reason; they aren’t funny.

Nonetheless, you should watch this video because it’s funny and it supports my point of view.

I was talking through these issues with a gay friend of mine who agrees with me that florists, photographers and bakers shouldn’t be required to provide services for events that conflict with their religious values.

But I knew the issue well enough to know that we’d soon bump into a disagreement about how to form a law around such issues.  I knew we wouldn’t reach agreement because I can’t decide for myself where a line should be drawn.  For my friend, the location of the line was easy; don’t draw one at all.

He was of the opinion that no one should be forced to serve him at all if they objected to his homosexuality.  Not only should the baker be free to withhold his services to make a gay-themed cake for a wedding, the baker should also be free to refuse to sell a cookie to two men who walked in his store holding hands. His position is appealing because it appeals to the ethic of autonomy with the side benefit of being 100% consistent across all concerns.  He’s of the opinion that free market forces would easily resolve the situation by driving the baker out of business.

Because it’s nearly impossible to define what is and what is not “religious” I have a concern that the principle can be abused and used to justify any sort of bigotry.  I believe there is also an ethic of equality that also needs to be respected. The free market might cause ghettos to arise where some parts of Mississippi refused to serve Africans entirely and some parts of California refused to serve Mormons entirely (because in Northern California Christianity is already borderline illegal).

When a baker or a florist might be exercising a certain measure of artistic expression in performing their services for a wedding, I think their consciences should be respected even if I don’t have their same concerns. But when they are offering a tangible product in an open storefront the situation is different. For lack of a more sophisticated way of saying it: individuals should be allowed to choose where they take their business but shouldn’t be allowed to refuse who may enter their business (some non-legally protected exceptions apply).

The problem I have with my proposal is that I immediately encounter an exception.  There are some forms of Judaism and Islam that prohibit men from touching women.  I don’t think a Muslim barber should be required to cut the hair of a woman.  A lawsuit surrounding this issue was filed in Toronto in 2012 and settled civilly and privately. But eventually I feel as this sort of case will find its way into our public legal hearings. If you want to assume a barber is providing a creative service perhaps consider the situation for a Muslim doctor.

Our current value of equality will continue to confront or value of autonomy.  How they will be sorted out will represent injustice in some regard. Someone isn’t going to get their way and it will feel unfair. How do we celebrate someone’s personal freedom when it denies us equality?  How do we celebrate equality when it binds our own conscience?

Lord help us.

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32 thoughts on “What Do You Do With a Problem Like Freedom?

  1. Don’t underestimate the immense amount of work that has already been done judicially around questions of religious freedom. The courts actually do make distinctions between “religious” and “not religious,” they have been doing it for a long time, and honestly they do it in a pretty commonsense way that it’s hard to disagree with.

  2. I hope you’re right because it seems like the conversation is brand new for a lot of people in culture today, like religious freedom was just invented.

    I also have fears because there’s a big push to redefine religious liberty as “freedom of worship” (most notably by Hillary Clinton). There’s a HUGE difference between the two.

  3. I hope you’re right because it seems like the conversation is brand new for a lot of people in culture today, like religious freedom was just invented.

    Indeed. And it makes my eyes roll out of my head.

  4. There is a sort of commonsense argument to make for just letting the market decide in some libertarian fashion. This is probably why just about every gay marriage advocate I’ve met who supports ordering Christian bakers to bake the cake (and for some reason, they almost all seem to), immediately tries to frame the issue as being the exact same thing as anti-discrimination laws in the South forcing businesses to serve black people.

    We all know that at the end of Segregation, it became necessary to pass laws forcing businesses to serve black people – whether the owner wanted to or not.

    Everyone on the side of compelling the Christian baker always brings up this example almost immediately. And just about every defense of gay marriage I’ve read tries to paint the plight of gay couples as EXACTLY THE SAME as that of black people under Segregation, at least in principle. Gay rights is treated as the new “Civil Rights” movement for our time. The hope is that gays will be able to get all the exact same legal reforms that black people got.

    My problem with this line of argument is that anti-segregation laws forcing businesses to serve blacks were kind of an exceptional situation. It was an instance where the courts decided that extraordinary measures were needed to combat a systemic and pervasive injustice that was harming black people in society at every level.

    I do not see the same concerns applying to gays, and I’m not convinced that the courts need to invoke such extreme measures again. As far as I can tell, laws forcing businesses to serve black customers should be the exception – not the rule.

    But gay marriage advocates would apparently like for it to be the rule. The default option any time you get a group of people being discriminated against at any level.

  5. As I understand it, U.S. courts have generally upheld the authority of the government to enforce a wide variety of laws of general applicability that impinge on religious liberty. A pacifist still has to pay taxes even though they fund the military, for example, and a restaurant still has to serve a mixed-race couple even if the owner’s religion frowns on miscegenation.

    So, legally, I’m not sure to what extent the religious-liberty argument can be deciding in many of these public-accommodations cases. However, I believe that in many cases the free-speech provision of the First Amendment can prevent the government from requiring someone to engage in an action that would be understood as an endorsement of (for example) gay marriage.

    The free-speech provision isn’t limited to traditional speech only. Artistic expression (even nude dancing) has been upheld as a type of speech, for example. And courts have held that the government has no more authority to compel speech than it does to prohibit it. A pacifist couldn’t be compelled to display a “I support the war” slogan on his license plate, for example, and the law couldn’t require the restaurant owner to use a mixed-race couple in her advertising.

    I think the strongest cases for carve-outs to public-accommodations laws concern those that involve participation in gay marriage. For example, I wouldn’t think the government could compel a singer to participate in a gay wedding (or any wedding, for that matter, regardless of the reason), as such as action would traditionally be considered as showing support for the marriage. But I wouldn’t be persuaded that the mere rental of a hotel facility for a reception would constitute an endorsement or participation.

    In my view, baking and selling a cake for a wedding doesn’t constitute an endorsement or participation, nor would providing flowers. But I wouldn’t compel a baker to make same-sex cake toppers available. As to wedding photography? If the job requires creative artistry, I’d side with the photographer. The First Amendment doesn’t mean much otherwise.

  6. I find the reliance on the “free market” to be touching. It’s the failure of the free market that made the Civil Rights Act necessary. Rand Paul stated that he would simply not support a business that refused to serve African Americans. But what if whole swaths of businesses, let us say, for example, from Florida through Texas, refuse to serve African Americans, as in my lifetime they did,
    isn’t the free market working for the persons who believe African Americans should not be served? Indeed, at lease one restaurant in OK currently and proudly refuses service to “N…”, Hispanics, “faggots” and welfare recipients, and has for the past 40 years. Apparently the free market has yet to engage to end this practice.

    The Little Sisters of the Poor state that merely having to fill out a form to say that they will not provide insurance that includes contraceptive services; filling out the form, they say, unnecessarily burdens their free exercise of religion, since it will allow others to provide the insurance that includes that coverage. (Their view also ignores Catholic theology on cooperation with evil).

    So we have religious faith, whatever that means, trumping…well just about everything, except military expenditures. I bet Jesus never saw that one coming. So, I wonder why is religious faith, which we all know is changeable, with individuals changing their beliefs easily and frequently, and which is not innate and visible, allowed to mask bigotry and work for an unequal rather than an equal society?

  7. Well, vajra, I believe your statement conforms to Tim’s point and questions. I tend to think the solution is really simple: respect others. Christ gave us a blue print, and yes, even Christians get it wrong. We can find out what that is through scripture. Even if you do not agree that Christ is our savior, it is hard to argue with Christ and his sermon on the mount, among other teaching moments.

    But respecting others is something we must do, but no law can create this kind of respect. It was brought up how there still exist ppckets of racism and bigotry. That is telling. A rightful criticism of the moral right in the 80s and 90s was that you cannot legislate morality. Just the same, this issue of fighting discrimination and bigotry to achieve equality is a moral issue. There will always be bigots, and laws won’t change that.

  8. But whether or not the owner of a public accommodation is a bigot, under current civil rights laws he must serve the public. How long would it have been appropriate for society to wait for misogyny, racism, and religious bigotry to come to an end? 100 years? 200 years? 10000 years?

    I’m well aware of the bigots who decry the burden that having to refrain from using denigrating language has placed on them, along with the horrors of having to press “1” for English. They complained bitterly that using that language instead of “telling like it is” subjects them to politically correct opprobrium. I wonder why within that group it is frequently more disliked to be called a bigot than to be one?

  9. But why must they serve the public? What is the aim in forcing everyone ro serve the public? What is the purpose and what is accomplished? How does that target improve society? Are we more, or less, free in such a situation?

  10. “But why must they serve the public?”

    Just so that I am understanding you correctly, are you saying that a private business open to the public doesn’t have a general obligation to serve the public?

  11. I am asking the question in response to the poster’s statement: “But whether or not the owner of a public accommodation is a bigot, under current civil rights laws he must serve the public.”

    If they do have public duties, why do they have public duties? If it is a private business, after all, it begs the question as to whether it has any public duties at all. So, my question “Why must private businesses serve the public” is merely asking the question as to why there is any duty to serve the public at all. It deserves an answer before we move forward, as it addresses underlying assumptions on this issue.

    The justification for why businesses must serve the public gets to basic understandings of private lives and freedoms that we need to grapple with in a free society.

  12. “If they do have public duties, why do they have public duties?”

    As a conservative American I would say a private store has a duty to provide access to the free market. If private businesses​ systematically refuse access to the market then it seems proper for the legislature to pass laws to enforce access.

    As a conservative Christian to refuse access to the free market seems to violate the command to love our neighbors besides the 8th commandment that requires, “truth, faithfulness, and justice in contracts and commerce between man and man; rendering to everyone his due…”.

  13. Gundek,

    I think that is a fair and good answer. However, as it pertains to freedom, isn’t this an area where we forego our freedoms in lieu of other, competing needs?

    And if we are sacrificing our freedoms for other, competing needs, who is the party to do the sacrifice? Ourselves, or a government? If it is the government, how much do we cede and what powers do we grant them to enforce the powers we grant them?

    We are going down a path where we cede more and more to the government. And if you look at my original response to vajra2, you will note that I state that respecting others is the, at least “a”, solution to the problem. I cite Christ’s Sermon on the Mount as a primary place to determine how people should handle this. Accordingly, I do not think anyone should discriminate, and I think everyone should love and respect their neighbor and withhold judgment and anger towards others (especially for those outside of the church). That said, I also respect the conscience of those who sincerely have reservations about certain transactions.

    What I see missing from the discussion, though, is a respect by the non-religious for the religious. I also happen to think that the above standards of treating others should be applied by all. I tend to think they would agree, as it is not necessarily a Christian concept in and of itself.

    So, a gay couple wanting a Christian baker to bake a cake for their marriage when there are other bakers who can perform the same service seems to suggest a disrespect by the gay couple towards the Christian baker if they sue the Christian baker.

    Remember, if there is a free market out there, there is no need to have the Christian baker violate its conscience if the same product can be found elsewhere. However, what happens when the gay couple forces the Christian baker to bake for them is that the market is manipulated and freedom is lost, as a private business is forced into a transaction against its will.

    On a broader scale, I would argue, when a Christian merchant is forced by a government to violate his or her morals under the threat of government mandate and penalty, we are less free to pursue our lives, liberty, and happiness. Our personal beliefs become secondary to the sensitivity of societal whims.

    Christians must respect others, of course. But there must also be room to allow personal religious thought and room to allow them to act upon their beliefs. Without either, we lose our religious freedom, and forcing Christianity into the closet pushes our religious freedom away.

    How much of this should we tolerate? How much should we cede? How much of this restraint should be personal, and how much should we rely on a government?

    These are difficult questions, yes. I don’t pretend to have all the answers, but I do err on the side of personal choices and responsibility, and therefore feel the government should not be the primary driver in forcing a Christian baker to bake a cake for a group they vehemently disagree with.

  14. My morals are violated every day by government when it wages unnecessary war, when it absolves law enforcement officers of responsibility in the killing of African American men for minor offenses, when it sells/leases public land to those who will pollute and desecrate the environment, when it makes reproduction a state concern, when it works to deprive voters of voice and a vote, and in many other instances. Here I will observe that many Christians and/or Conservatives are in favor of State’s Rights and local control unless it is a right with which they disagree. Many Christians who are screaming about religious persecution in this country, are upset because they are not the “default American” as they once were.

    My view is that you can believe what you will. If, for example, you believe abortion is evil, don’t have one. But you cannot say what I believe or do is less “moral” or deserving of respect than what you believe.Governmental funds, which let’s face it, are fungible, are a slippery slope unless I am permitted to withhold the percentage of my taxes that go for items with which I disapprove.

    *
    There is no imposed obligation or duty to open a business. Indeed, one can open a private business that serves only a limited clientele. However, if a buisiness is ostensibly open to the public, one cannot discriminate against a protected class. What constitutes a protected class is covered under Federal, State, and local laws.

    One can refuse, for example, to decorate a cake with slurs aimed at Jews, if the policy of the bakery is to refuse to decorate a cake with slurs of any kind. One can refuse to admit people without shirts if that rule is evenly enforced. And so on.

    As for “respect,” would there be an enforcement mechanism? Is every person, no matter what they do or say worthy of respect?

  15. Vajra, all of your examples are beside the point, and each of them can be discussed in depth on their own (ie, the necessity of war and the circumstances surrounding the deaths by police officers). The point, in this discussion, is the freedom we have, or not, as it pertains to a freedom to run a business in the context of a freedom of religion. As I asked before, and which you have not answered, is what duty is upon a business to serve the public? Why must they serve the public? You have, at best, stated that if a business ostensibly serves the public, it cannot discriminate against a protected class. But that does not answer why, only that the law says they have to. But I am curious why you think they have to. I am curious what assumptions you have about our freedoms that dictates that you think these restrictions must exist. I am also now curious as to why you think there must be an enforcement mechanism and what that mechanism must be or if it has any limits.

  16. I’m not sure what you mean by “serve”. “There is no imposed obligation or duty to open a business. Indeed, one can open a private business that serves only a limited clientele. However, if a business is ostensibly open to the public, one cannot discriminate against a protected class. What constitutes a protected class is covered under Federal, State, and local laws.”

    My religious beliefs are violated by the examples I gave. Is not my religion entitled to respect.?

    Perhaps you could help me in showing a country in which businesses can discriminate against people bases on race, gender, national origin, or religion and how that benefits the entire society as a whole?

    “That said, I also respect the conscience of those who sincerely have reservations about certain transactions.

    I sincerely have reservations about letting African Americans use the bathroom and eat in my restaurant situated on an expanse of HWY in Utah. It’s just an inconvenience that the next two stops have those same sincere beliefs…

  17. Vajra, you have done nothing to answer my questions. It always disappoints me to see people go around these issues on these topics. Its little wonder why there is such division in this nation. When we are taught that emotion is king, there is no need to address that which is uncomfortable. Distract, distract, distract.

    Now, I will try again: why do private businesses have to serve the public? Give an answer not a run around.

  18. I have asked for reasons that you have not provided. Now, I am not going to respond unless you can answer the questions you have been asked. But as it stands, you have no reason to state that private businesses must serve the public apart frome the law and protected classes. I am asking you to go deeper. Can you do that?

  19. I’m having a hard time seeing why any business has an obligation to serve the public. I’ve never heard that before.

  20. You may not have a legal obligation, I don’t know I’m not a lawyer, but a Christian merchant has a moral obligation to serve the public.

  21. Curious some thoughts on this question: what do Mormons make of God’s command to Abraham to kill Isaac when God is so encouraging of forever families and there is such great disdain for those who have children leave the church?

    It seems these are incompatible, as I would not think the Mormon God would ever command someone to violate his own rule or standard. Does anyone still check here and does anyone have thoughts on the matter.

    Thanks.

  22. Kullervo, maybe… The question occurred to me during church service the other day and I was curious Mormon thoughts on the matter. And no one is likely to visit my blog, where I have not posted in years…

  23. Isn’t the entire reason that God’s command to kill Isaac had such impact precisely BECAUSE family is so important?

    I imagine Mormons are just as uncomfortable with that verse as Catholics and Evangelicals are. The story is meant to be disturbing.

  24. Maybe, Seth. But I a not uncomfortable with it. I see it is as a command that we follow God above all else, including our families. This is the inconsistency I see, and why I am curious your thoughts on it. Mormons, to be more specific, seem to place forever families high on their list of priorities within the church such that a family member leaving the church is problematic to the member whose family left. A single member of the family, as I understand, can greatly alter the afterlives of everyone else in the family, as families were designed to be together.

    So, when I see God command Abraham to kill a family member, I see that as God telling Abraham something inconsistent God’s plan within the context of Mormonism.

    Its not just being uncomfortable, but consistent. Perhaps there is an answer, and maybe that is the answer, but I expand here so you can understand that I am not sure the simplicity you just provided suffices at the moment…

  25. And no one is likely to visit my blog, where I have not posted in years…

    I meant a guest post for this blog. Right now you’re off-topic.

  26. Ah, gotcha. I would be happy to. Off topic, yes, but given how long this has been dormant, I did not see harm in asking the question.

  27. Well, posting it as a guest post would give the discussion more visibility and hopefully participation. I wouldn’t mind seeing this place come back to life.

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