Cake Wars And The Coming Conflict Over Religious Liberty

Cake Wars And The Coming Conflict Over Religious Liberty

The new book 'Debating Religious Liberty and Discrimination' provides a good overview of the conflict between religious business owners and LGBT activists, but it also provides a dire warning—people of faith should expect the inquisition.
Nathanael Blake
By

There is an inquisition in America, and its plans for non-conformists are simple: to drive us out of our professions, shutter our businesses and institutions, bankrupt us and even put us in jail. I wish this was hyperbole. But case after case shows that the leaders of the LGBT movement and its allies are determined to hijack anti-discrimination law to silence all dissent. Consider the following parade of persecution.

Florist Barronelle Stutzman kindly told a customer whom she had served faithfully for nine years she couldn’t be part of his same-sex wedding ceremony. For this, the state of Washington has levied six-figure fines and is attempting not only to destroy her business, but to seize her retirement account. Jack Phillips of Colorado sold his baked goods to everyone, but turned down custom orders that would have required using his artistry is ways that violated his conscience. This wasn’t a problem when, for example, he refused to make lewd bachelor party cakes. But when he politely declined to make a custom cake for a same-sex ceremony, the government came after him—imposing heavy fines and demanding that he reeducate his employees, including his family.

Other laws are even worse. Angel and Carl Larsen of Telescope Media are challenging a Minnesota law that, in addition to heavy fines, could imprison them for 90 days if they decline to use their artistic ability to tell the story of a same-sex wedding. In Phoenix, Joanna Duka and Breanna Koski of Brush and Nib Studios are fighting a law that would require them to use their artistic talents to promote same-sex wedding ceremonies or face crippling fines and six months in jail—and that also imposes a gag order that prohibits them from even explaining their religious beliefs.

This persecution isn’t confined to the wedding industry. Atlanta fire chief Kelvin Cochran was fired for writing a Bible-study book that expressed the traditional Christian view of human sexuality and marriage. At least one Catholic hospital has been sued for refusing to remove healthy reproductive organs at the request of a trans individual. And so on. Column after column could be filled with examples of Rod Dreher’s Law of Merited Impossibility: “It will never happen, and when it does, you bigots will deserve it.” What the LGBT movement dismissed as “alarmism” yesterday is its preferred policy today.

Dignitary vs. Material Harm

This context makes the thoughtful and engaging book Debating Religious Liberty and Discrimination, by John Corvino, Ryan T. Anderson, and Sherif Girgis, timely and necessary. This book provides a good introduction into current debates over religious liberty, and offers genuine debate on these issues, with Corvino taking one side, and Anderson and Girgis, writing jointly, the other. Of course the authors are not in total opposition. They all proclaim that it is important to maintain religious liberty and to oppose unjust discrimination. But they differ dramatically regarding emphasis and implementation, illuminating the contours of debate over cases like those above.

A crucial difference is that for Anderson and Girgis, anti-discrimination laws are primarily pragmatic, while for Corvino they are principled. That is, Anderson and Girgis see these laws as proportionate remedies for injustices of a certain sort and severity, with state-enforced racial segregation being the classic example. In contrast, Corvino seems to see them as essential because of the message they send, regardless of the extent of existing injustice. He considers dignitary harm a significant justification for anti-discrimination laws, while Anderson and Girgis are mostly concerned with material harm.

To illustrate, a same-sex couple might be discomfited if their request for a wedding cake is turned down (dignitary harm), but they are not locked out of access to essential goods or services (material harm). Even though permitting a few non-conformist wedding vendors to opt-out of same-sex weddings does no real material harm to anyone, Corvino sees the potential dignitary harm as sufficient to justify government coercion. To the extent that he entertains possible exceptions, they are based not on religious freedom but on the artistic and expressive nature of custom work.

While Corvino is skeptical of religious exemptions, complaining that they make for “Swiss cheese” law, he suggests a sort of “Swiss cheese” enforcement, calling for LGBT activists and their allies to overlook some violations. But Stutzman, whom he singles out as deserving such forbearance, has been given none. Likewise, though he is “inclined to agree” that the six-figure penalty imposed on an Oregon couple for declining to bake a cake for a same-sex ceremony was excessive, he still wants them punished.

Through this legal two-step, where he supports the laws but deplores their implementation, Corvino tries to have his cake and eat it too. If Corvino doesn’t want Barronelle and others sued into financial oblivion, he shouldn’t support laws that turn all non-conformist wedding vendors into outlaws.

A Parade of Horribles

Corvino’s support for laws that he admits disproportionately penalize people is due to his desire to have the law protect LGBT people not only from unjust discrimination but also from psychological harm, and to “send a message about the harmfulness of anti-LGBT views.” Thus, he rejects even easy accommodation for religious believers when it could “reinforce sentiments that ought to be repudiated.”

Consequently, he moralizes in scandalized tones over possible abuses of religious liberty. Anderson and Girgis observe that he relies on a mostly-imaginary “parade of horribles” to bolster his case. He even worries about “morally unpalatable” outcomes for those few religious liberty exemptions he does favor. But the weakness of his argument is revealed by his persistent need to invent new religious wackiness because he can’t find a real example among the multitude of American sects and creeds. The current state of religious liberty and anti-discrimination laws isn’t causing the sky to fall, despite all the hypotheticals Corvino can dream up.

Furthermore, most of his parade of horribles (real or imagined) is pretty weak stuff. While there is plenty of stupidity, silliness, and even malice in Corvino’s examples of religious liberty run amok, few would inflict significant harm if tolerated or accommodated. In this debate, it is the conservative Catholics, not the gay professor, who are tolerant of diversity, including what they see as error.

This tolerance flows naturally from the philosophical and legal framework that Anderson and Girgis develop. Overall, they offer a much more comprehensive, detailed, and coherent argument than Corvino, whose unfortunate choice to frequently write in a “thinking out loud” manner handicaps his case. While his skepticism of “tidy system building” is not unwarranted, Corvino overcompensates, leaving his contributions meandering and lacking in rigor. On the other side, although the “New Natural Law Theory” that Anderson and Girgis rely on has a weakness for too-neat systematizing, they avoid it here.

Living With Integrity

They build a compelling case for freedom of religion and conscience on the foundation of the basic human good of integrity. To live with integrity is to harmonize one’s beliefs and actions, to live authentically with one’s convictions, social relations, and understanding of the transcendent. Such integrity is a basic experiential good, even if some beliefs are mistaken or imperfectly lived up to. But integrity is also particularly fragile, and therefore deserves special consideration from the government. If the government coerces you into violating your conscience and abandoning your integrity, where can you go to get it back?

Of course, freedom of conscience is not a blank check; there are legitimate reasons for government to punish certain actions, however authentic the convictions behind them. But the burden of proof in such cases rests with the government. Demanding that people violate their deeply held moral convictions, or disobey what they believe are the edicts of God, is not to be done lightly, and there are long-standing legal tests to weigh such cases.

Such conflicts between state and conscience can be resolved by limiting the scope of government, or by writing exemptions into the law for those whose conscience rights it would unduly burden, or by vindicating the conscience rights of non-conformists in court. In a society that values integrity and authenticity, all of these methods of protecting conscience rights will have their place.

And it is odd that Corvino doesn’t recognize the force of the argument for religious liberty based on personal integrity, given that the LGBT movement’s reliance on arguments rooted in personal integrity and authenticity: This is who I am, allow me the freedom to live and love in accordance with my deeply felt identity. But he and his allies seem disinclined to practice what they preach about tolerance.

While Anderson and Girgis do not support ideological libertarianism, their approach does have a great deal of live and let live in it, especially as regards the liberty to live authentically in civil society. They argue that it is not government’s role to purify every heart or eliminate all evils, only to prevent or punish them to the extent needed for the flourishing of civil society. Indeed, anti-discrimination laws, both current and proposed, still leave plenty of space for injustice, yet Corvino’s imaginary parade of horribles fails to materialize. So Anderson and Girgis conclude that the real concern of LGBT activists isn’t with remedying actual material harm, or even curbing widespread dignitary harm, but with crushing dissent.

Ironically, this will result in the sort of dignitary harm that Corvino claims to want to prevent. Surely Phillips will suffer dignitary harm if Colorado succeeds in compelling him to reeducate his employees, including his own family, to say nothing of the financial penalties. If Christians and others with traditional views of marriage are penalized (often heavily) if they do not check their beliefs upon entering the market square, then the government is declaring them to be morally inferior—the very definition of Corvino’s dignitary harm.

Free Speech Will Be Next

If religious and conscience freedoms are overridden for the sake of dignity, then free speech will be next, as it is often far more offensive to dignity. The groundwork for this is already being laid, and polls routinely show distressingly high levels of support for restrictions on so-called hate speech. Corvino tries to arrest this tendency by distinguishing between speech and action. But what he actually wants to punish is not action but inaction. Phillips and Stutzman are being punished for saying that they wouldn’t do something.

This is the heart of the matter. Anderson and Girgis argue that such cases, in which feelings are hurt but no one is denied access to essential goods and services, rarely justify government intervention. For Corvino, dignitary harm and the need to send a message necessitate government intervention and override religious liberty concerns. Anderson and Girgis hold that freedom of religion and conscience is a good in itself, essential to the good of personal integrity, which has value even for those whose convictions are wrong. Corvino mostly views religious freedom as an instrumental good that can ameliorate the potential for religious conflict, and he sees nothing of value in the integrity of those whose convictions are badly wrong. Error has no rights. So it is he, more than his debating partners, who views government as a tool of righteousness.

Some of his allies are even more direct about this. A recent Rolling Stone profile of Tim Gill, who spends vast sums bankrolling LGBT activism, says this about the movement’s plans: “We’re going to punish the wicked.” So much for “Love Wins.” Now it’s time to punish. That’s the voice of an inquisitor, a heretic-hunter. And that is what the LGBT movement and its allies are becoming.

Too many American Christians are ignorant of this. They don’t know that their brothers and sisters in Christ are being persecuted—losing their jobs, businesses, assets, and perhaps their liberty. Too many in other religious communities do not recognize that an attack on the religious freedom of one is an attack on all; conservative Catholics and evangelicals are the first targets, but we won’t be the last.

Finally, too many who support same-sex marriage do not notice the persecution that has begun in their name. It is possible to support same-sex marriage without seeking to punish non-conformists or erode religious liberty. Millions of same-sex marriage supporters would likely be horrified if they looked at the details of how anti-discrimination law is being perverted into a weapon of religious persecution. Despite disagreements, they don’t want their conservative friends and family to be destroyed for sincere religious beliefs that materially harm no one.

For them, I have simple questions: Will you tolerate us and stand up for our liberties? And if not, how far are you willing to go to try to force us to recant?

Nathanael Blake has a PhD in political theory. He lives in Missouri.

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