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April 01, 2015

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So let's apply it to that florist in Washington:

  1. Substantial burden Let's assume for a moment that it is a "substantial burden" to sell goods to a party, knowing that said party will use said goods in a way contrary to the seller's beliefs. This opens up a whole new class of "substantial burdens" hidden in everyday business transactions. For example, as burdensome as selling flowers for a same-sex wedding is, it would be equally burdensome for a Christian-owned business to be forced to sell flowers for a Muslim wedding, or a bar mitzvah, or a Buddhist funeral, or a wedding between a Christian and a non-Christian. Assuming the florist is Catholic, it would also represent a "substantial burden" for her to be compelled to sell goods for a wedding in which one party is divorced. Every business owner, in the course of his/her business, will provide goods/services for things he/she does not approve of. That's not a "substantial burden" on anything; it's part of running a business.
  2. Compelling government interest The federal courts have ruled, over and over again, that prohibiting discrimination against suspect classes is one of the most compelling of compelling government interests. See for example Bob Jones University v. United States, 461 U.S. 574 (1983).
  3. Least restrictive means This one is probably the easiest of all. There is no other way to prohibit discrimination than by prohibiting discrimination. And the law, by its nature, is applicable to everyone, from mega-corporations to little old ladies and their floral shops.

Phillip, if a person finds it to be a substantial burden to participate in a same-sex marriage ceremony (for example, as the pastor performing the ceremony), then it is a burden to them. Going against your conscience is not the cost of running a business. It shouldn't be the cost for a gay activist advertising agency, and it shouldn't be the cost for anyone else. I care about people not being forced to go against their conscience because that's an affront to human dignity. That's why I can say without reservation that I would fight for your right not to be forced to plan a rally against same-sex marriage. However, whether it's a burden or not doesn't ultimately decide the case for anyone.

It seems from the rest of your comment that you agree that this law can't be misused by people refusing to serve people because of their sexual orientation (a situation different from everything I described above) because of the tests that must be passed, and that's great.

if a person finds it to be a substantial burden... then it is a burden

Um, no. Every interpretation of both the RFRA, as well as the original court case it was based on, has treated "substantial burden" as an objective standard, not some meaningless it-is-if-I-say-it-is sort of thing.

...I would fight for your right not to be forced to plan a rally against same-sex marriage.

But let's compare apples to apples here. No-one is asking the florist to compose or disseminate gay-rights propaganda, or to meaningfully participate in gay rights activism. Forget religious freedom, that would be compelled speech. But let's say you're going to get married, and you walk into Atheist Bob's bakery, and ask him to sell you a wedding cake. Atheist Bob notices a cross around your neck:


"Are you a Christian?"

"Yeah"

"That's great! We serve Christians here, because we do not discriminate against people. I'll be happy to bake a cake for your wedding. Unless, you know, it's a Christian wedding."

"Well, yeah. I'm a Christian, so my pastor will officiate, and they'll read from 1 Corinthians..."

"Yeah, no can do, I'm afraid. We're atheists here at Atheist Bob's, and although we don't refuse service to people we disagree with, we do reserve the right to refuse a disagreeable event.

That is the parallel situation, not what you described. Now, in a state where businesses are prohibited from discriminating on the basis of religion, does or does not Atheist Bob deserve to have his pants sued off?

...does or does not Atheist Bob deserve to have his pants sued off?

Or, more helpfully, what would be the reaction of the Alliance Defending Freedom, The Gospel Coalition, and all the other organizations that are so valiantly defending "freedom of conscience" in the Washington florist case? What, do you think, would be Mollie Hemingway's reaction? (Do we even have to guess on that one?)

Phillip, my main point about the burden comment was that just because you don't understand how it can be a burden doesn't mean it actually isn't a burden for that person. I've been seeing people dismiss the idea that it's a problem just because it wouldn't be a problem for them so they're unable to empathize. That's not what determines whether or not it's a burden for that person.

And yes, this will come up with printers, wedding planners, and eventually ministers.

As for my analogy, I was comparing apples to apples. Participating in a celebration of same-sex marriage makes a statement. Participating in a rally against same-sex marriage would also make a statement. Nobody should be forced to make either statement if it goes against their conscience. I'm not even saying that it would go against everybody's conscience. But when it does, I'm not for forcing people to do it.

And your story is not exactly analogous since having a different type of ceremony isn't the same as having a ceremony that supports a foundational change in the definition of marriage (and I'm not talking just in terms of gender) that comes with same-sex marriage (see my past posts on this). A person's religion is incidental to the essence of marriage. The opposite-sex union, on the other hand, is an essential aspect of it. (I know you disagree about that, but that's the point! You don't have to agree in order for me to have a sincerely-held conviction I should be free to hold.) Unlike your atheist, they're not objecting to aspects of what happens at the wedding, they're objecting to the wedding itself. A more analogous story would by this:

"That's great! We serve Christians here, because we do not discriminate against people. I'll be happy to bake a cake for you. Unless, you know, it's for a wedding. Weddings are against my atheism, and I don't want to be part of that."

Regardless, your atheist is welcome to take his case to court, and if being a part of weddings goes against his conscience and deeply-held beliefs, then I'm not for forcing him to do it. There are plenty of other bakers, so forcing him wouldn't be the least restrictive means.

(Do we even have to guess on that one?)

No, of course you don't. I'm certain she would agree with me. I don't even understand why you would think otherwise. The Federal RFRA was over drugs, and I'm sure she's against drugs, but that didn't stop her from supporting the law. If you can't support freedom of religion for people who have religions you think are wrong, then freedom of religion is meaningless. We understand that.

Here are 10 cases of people who appealed to RFRAs that she wrote about. I have no reason to think she thinks all of their beliefs are correct.

And your story is not exactly analogous since having a different type of ceremony isn't the same as having a ceremony that supports a foundational change in the definition of marriage

In other words, a different type of ceremony. You're equivocating between the merits and validity of same-sex marriage per se, and same-sex marriage vis-a-vis the RFRA. The two are separate. An atheist could, in theory, have a sincerely held belief that Christianity is an immoral and harmful belief system, and that invoking God to begin one's marriage is a recipe for abuse and unhappiness (due to the husband's putative "headship" or for other reasons). Thus, there is a plausible scenario in which "participating" in a Christian wedding would offend an atheist's conscience in the exact same way, and to the exact same degree, as "participating" in a same-sex wedding would for the florist in Washington. My analogy stands.

"Weddings are against my atheism, and I don't want to be part of that."

What about selling a pre-made cake to celebrate a first communion, or a baptism?

No, it's not a different type of ceremony. I would suspect the ceremonies are probably pretty close to the same. It's calling something marriage that they don't think is marriage (and they think saying it is marriage is an affront to real marriage), and that they think will harm our society and marriage (for all the reasons I've posted in the past). It's more than just different customs in the ceremony, but this is all beside the point.

It doesn't matter what scenario you come up with. They're all welcome to appeal to RFRA and see if they pass. If he passes the first two requirements and there's a less-restrictive means to buy a cake (which of course, there is), then no one can force him to take part in the wedding. Everybody has access to RFRA.

Personally, I don't even understand why anyone would want to force him to bake the cake.

Amy,

I was wondering how, from your comprehensive first day's post (Driven by Agenda, Not by Principle), you cold have possibly topped that effort. The graphic does much to explain the essence of the RFRA, giving two examples of how the principles of substantial burden, compelling interest, and least restrictive means will impact our lives.

Still, I am evaluating this process with the established "separation of church and state." Could the least restrictive means still be restrictive. I appreciate your arguments concerning conscience and an appeal toward empathy each side of this issue has to develop.

One missing element in all the protests in Indiana is a statement of regards for the idea of religious freedom by the protestors. They may have made statements to this effect, but I have not heard them reported (the network news can only cover so much in their time limitations). If they are acting to limit religious freedom, this could be unacceptable to those who realize religious freedoms are restricted in other nations who don't have the same value for freedom as in America.

Empathy remains the key, along with the development of principles that allow for conscientious services for the LGBT. A distinction between supplementation and participation must be honed, when our actions would signal condoning or enduring a situation.

In the end, a florist who for conscience sake would not supply flowers for a gay-wedding should be professional enough to find references of colleagues who are so scruppled. Now, if that florist was chosen because his refusal would allow the LGBT to show political power to advance cause ... well, that too has the aspects of Indiana.

This has been the most informative discussion on this issue I have read. Thank you... If, I understand correctly, a business owner who provides more than one service to the community could be justified for holding his beliefs in court and ruled against in a seperate case based upon the type of service provided? I suppose that's obvious, but for example,: A florist would be ruled against in refusing floral arrangements to someone based upon what they are being provided for, but would generally be justified if he refused to say, print images on t-shirts that are out of bounds for his beliefs.
Is this close? It seems the RFRA is incredibly beneficial for balancing justice with the church and state keeping humans from whatever side of an issue accountable to a rubric mutually submitted to. Why not?

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