Freedom for Dummies

It seems wingnuts cannot grasp why a business owner may not refuse to make a standard wedding cake for a gay wedding but may refuse to make a cake with a homophobic message.  The Colorado Civil Rights Division says so, anyway.

In his complaint, Jack claimed Silva discriminated against him “based on my creed.”

Colorado Civil Rights Division argued in its Friday ruling that Silva did not discriminate against Jack because she offered to bake the cake, and only refused to write the messages by which she was offended.

Jack is the founder of the Worldview Academy, a camp that teaches “Christians to think and live in accord with a biblical worldview.”

Of course he is.

Elsewhere, religionista Rick Santorum recently said:

If you’re a print shop and you are a gay man, should you be forced to print ‘God Hates Fags’ for the Westboro Baptist Church because they hold those signs up? Should the government—and this is really the case here — should the government force you to do that? This is about the government coming in and saying, “No, we’re going to make you do this.” And this is where I think we just need some space to say let’s have some tolerance, be a two-way street.

Sally Kohn responds,

There are two problems with Santorum’s reasoning. The first is that a printer doesn’t have to make such signs, under any law, because refusing to do so is not discrimination in any legally prohibited sense. A print shop can also refuse to print a poster that says, for instance, “F*ck Rick Santorum,” either because it disagrees with the language or the sentiment. Both are entirely legally permissible decisions any business can rightfully make.

But let’s say the printer is asked to make a communion sign or a gay wedding sign. In this case—especially in states that prohibit discrimination based on sexual orientation as well as religion—refusing to print such a sign would indeed be illegal. The government isn’t forcing that business to do anything other than follow the law. Which is what we expect of all businesses, equally.

Josh Marshall is more succinct.

If you ask a baker to bake a cake that says “God hates gays” and they refuse, that’s not an imposition on your religion — unless you’re a complete moron.

Yes, that’s the catch, isn’t it?

If you won’t send the same floral arrangement to a gay wedding as a straight wedding, that’s a problem. On the other hand, if just hypothetically, a lesbian couple wanted an elaborate floral arrangement symbolizing a graphic sex act, yeah, I think the florist can turn you down, just as I imagine it’s obvious the florist could turn down a hetero couple in a comparable situation.

Of course, grasping this requires some skill at critical thinking. So righties will continue to not get it.

The Fallout Continues

The newest excuse for Indiana’s Religious Freedom Restoration Act is that other states and even the federal government have the same law, so why is everyone picking on Indiana? Garrett Epps explains,

…even my old employer, The Washington Post, seems to believe that if a law has a similar title as another law, they must be identical. “Indiana is actually soon to be just one of 20 states with a version of the Religious Freedom Restoration Act, or RFRA,” the Post’s Hunter Schwarz wrote, linking to this map created by the National Conference of State Legislatures.

The problem with this statement is that, well, it’s false. That becomes clear when you read and compare those tedious state statutes.  If you do that, you will find that the Indiana statute has two features the federal RFRA—and most state RFRAs—do not. First, the Indiana law explicitly allows any for-profit business to assert a right to “the free exercise of religion.” The federal RFRA doesn’t contain such language, and neither does any of the state RFRAs except South Carolina’s; in fact, Louisiana and Pennsylvania, explicitly exclude for-profit businesses from the protection of their RFRAs.

The new Indiana statute also contains this odd language: “A person whose exercise of religion has been substantially burdened, or is likely to be substantially burdened, by a violation of this chapter may assert the violation or impending violation as a claim or defense in a judicial or administrative proceeding, regardless of whether the state or any other governmental entity is a party to the proceeding.” (My italics.) Neither the federal RFRA, nor 18 of the 19 state statutes cited by the Post, says anything like this; only the Texas RFRA, passed in 1999, contains similar language.

What these words mean is, first, that the Indiana statute explicitly recognizes that a for-profit corporation has “free exercise” rights matching those of individuals or churches. A lot of legal thinkers thought that idea was outlandish until last year’s decision in Burwell v. Hobby Lobby Stores, in which the Court’s five conservatives interpreted the federal RFRA to give some corporate employers a religious veto over their employees’ statutory right to contraceptive coverage.

Second, the Indiana statute explicitly makes a business’s “free exercise” right a defense against a private lawsuit by another person, rather than simply against actions brought by government. Why does this matter? Well, there’s a lot of evidence that the new wave of “religious freedom” legislation was impelled, at least in part, by a panic over a New Mexico state-court decision, Elane Photography v. Willock. In that case, a same-sex couple sued a professional photography studio that refused to photograph the couple’s wedding. New Mexico law bars discrimination in “public accommodations” on the basis of sexual orientation. The studio said that New Mexico’s RFRA nonetheless barred the suit; but the state’s Supreme Court held that the RFRA did not apply “because the government is not a party.”

Remarkably enough, soon after, language found its way into the Indiana statute to make sure that no Indiana court could ever make a similar decision.  Democrats also offered the Republican legislative majority a chance to amend the new act to say that it did not permit businesses to discriminate; they voted that amendment down.

And it seems to me that a lot of people are awfully frantic to defend the Indiana law if it doesn’t actually do anything or allow anything that isn’t already allowed.

See also Indiana’s Mike Pence is starting to look like Lester Maddox — without the spine.

Karma in Indiana

Today Indiana governor Mike Pence signed a “Religious Freedom Restoration Act” into law that allows “any individual or corporation to cite its religious beliefs as a defense when sued by a private party.” It’s understood that the purpose of this is to give homophobe business owners license to discriminate against LGBT customers.

The Indianapolis-based Christian Church (Disciples of Christ) had already told Pence that if he signed the bill, the Disciples would cancel their next convention in Indianapolis and find another city.

“Our perspective is that hate and bigotry wrapped in religious freedom is still hate and bigotry,” Todd Adams, the associate general minister and vice president of the Indianapolis-based denomination, told The Indianapolis Star.

Adams said the Disciples of Christ would instead seek a host city that is “hospitable and welcome to all of our attendees.”

And that’s not all.

The law’s passing comes as the N.C.A.A., the Indianapolis-based governing body of college sports, prepares to hold one of the most visible events on the college sports calendar, the Final Four, next week in the Colts’ Lucas Oil Stadium.

Gov. Mike Pence, a Republican, signed the bill Thursday. Soon after, N.C.A.A. President Mark Emmert said in astatement that the association was “deeply committed to providing an inclusive environment for all our events. We are especially concerned about how this legislation could affect our student-athletes and employees.”