Must religious bakers bake cakes for gay weddings?
THANKS to the Supreme Court’s decision last month in Obergefell v Hodges, which made same-sex marriage legal nationwide, gays and lesbians are now free to marry their sweethearts in Mississippi and other bastions of conservatism. But that doesn’t mean religious florists and wedding photographers in Hattiesburg or Sioux Falls, South Dakota must now supply goods and services for gay weddings. Most conservative states don’t prohibit discrimination on the basis of sexual orientation. So same-sex couples who live in those states won’t have legal grounds for an anti-discrimination complaint if they’re denied flowers or photos by vendors of faith. The Christian photographer in New Mexico who refused to take snaps of a lesbian commitment ceremony, as well as the pious bakers in Colorado and Oregon who sparked similar controversies by declining to bake cakes for same-sex nuptials, all ran afoul of their states‘ anti-discrimination laws. No law, no lawsuits.
That’s one reason why gay-rights activists, now that the triumph of marriage equality is behind them, are applying their energy and attention to the task of passing local, state and federal laws outlawing discrimination on the basis of sexual orientation in employment, housing and public accommodations. A lesbian living in Indiana can now get married. But she can also get fired or evicted for having a wife. That needs to change.
The worthy project of expanding anti-discrimination statutes to cover sexual orientation troubles religious conservatives, who worry that these laws mean that devoutly religious tailors will be forced to defy their deepest convictions by making tuxes for lesbian weddings. A number of conservative states have passed state-level Religious Freedom Restoration Acts (RFRAs) as a sort of symbolic, anticipatory defence against the rising tide of gay rights. These bills, such as the one signed into law in April by Mike Pence, Indiana’s governor, are hugely controversial, in no small part because they reinforce protections for the religious in places where gays and lesbians have none at all. In all but 22 relatively liberal states and the District of Columbia, gays and lesbians lack legal protection against discrimination, unless they happen live in municipalities that have enacted their own (usually weak) anti-discrimination ordinances.
Gay-rights activists and their liberal allies have duly condemned these new religious freedom bills as thinly-veiled attempts to license discrimination against gays and lesbians. And they have successfully opposed attempts to use state-level religious freedom laws as a defence against anti-discrimination suits.
Yet religious conservatives aren’t wrong to notice that anti-discrimination protections for gays and lesbians in New Mexico, Colorado, Washington and other states have in fact been used to prosecute people of faith for declining to provide goods and services for same-sex ceremonies. As long as state anti-discrimination protections for gays and lesbians continue to trump state religious freedom protections, conservatives are bound to see new anti-discrimination laws as threats to religious liberty, and not without reason.
This dynamic of mutual distrust leaves gays and lesbians in conservative states without vital protections. As long as laws banning discrimination in housing and the workplace come with commands to bake wedding cakes for gay weddings, religious conservatives are going to block the whole bundle. But this can be fixed. It is just a matter of figuring out the best way for handling discrimination in „public accommodations“, interpreted to mean any business or property that is open to the general public. This is the bit that involves Christian bakers and Muslim tailors, and which provokes most of conservatives‘ concern over encroachments on religious freedom.
For a crafty solution to this puzzle, look no further than Utah. In March the state passed a law that banned workplace and housing discrimination against gays and lesbians while protecting the expression of religious conscience. The legislation was the result of patient cooperation between gay-rights activists and the Mormon church, without whose support the law would have been doomed. It is now illegal in Utah fire someone for being gay, but also illegal to fire someone for expressing religious opposition to gay marriage. The law specifies certain narrow exemptions from the new housing and employment regulations for religious groups. Perhaps most significantly, public-accommodations protections weren’t taken up at all, and it remains legal for Utah businesses to deny service on the basis of sexual orientation. That may seem objectionable, but robust legal protection against discrimination in housing and employment for tens of thousands of LGBT Utahns is a great deal better than nothing. Troy Williams, the executive director of Equality Utah, a gay-rights group, praised the law, saying that it „proves that protections for gay and transgender people in housing and the workplace can gracefully coexist with the rights of people of faith. One does not exist at the expense of the other“.
Equality, religious freedom and graceful coexistence are stirring liberal ideals to which every decent state aspires. Conservative states should look to Utah and improve upon its excellent example. For instance, public-accommodations protections for gays and lesbians might be rendered palatable to religious conservatives by including tightly specified exceptions for religious businesses, ensuring that god-fearing florists won’t be punished for not providing wedding bouquets to gays, but will be otherwise required to sell daffodils without regard to sexual orientation. State RFRAs won’t be needed to protect people of faith against the overzealous application of new anti-discrimination laws when religious-freedom provisions are baked into them from the start.
Now that they are free to marry, most gays and lesbians in conservative states don’t really care that much if one in 20 bakeries won’t bake them a wedding cake. But they care a lot about the possibility of losing a home or a job to due to anti-gay discrimination. For their part, few religious conservatives are really all that opposed to gays and lesbians enjoying legal protection against discrimination. But they care a lot about the right to live and work according to their faith. It would be wonderful if everyone could get almost everything they wanted, and it’s possible. Americans got so worked up tearing into each other over Indiana’s RFRA that they neglected to notice that Utah had just proved that civil rights and religious liberty can peacefully coexist.