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The Road to Compromise

Consider the case of Barronelle Stutzman. A grandmother from Richland, Washington, Stutzman worked as a florist for most of her professional life. For more than nine years, she willingly served Robert Ingersoll and his same sex-partner, whom she knew to be a couple. She created many floral arrangements to help them celebrate anniversaries, birthdays, and other special events.

In 2012, an employee told Stutzman that Ingersoll was going to ask her to provide flowers for his wedding ceremony. She talked it over with her husband and concluded:

My faith teaches me that marriage is between one man and one woman. Marriage is sacred covenant between a man and a woman, as Christ is to the church. To create and design something from my heart that helps celebrate their marriage would be dishonoring to God, and my convictions.

Ingersoll came to her store with his request, she gently told him “no,” gave him a hug, and referred him to a florist who had no such objections. The state of Washington’s attorney general and the American Civil Liberties Union responded with ruinous lawsuits that may drive her out of business. The state supreme court ruled against her, but the case has been remanded in light of Masterpiece Cakeshop v. Colorado Civil Rights Commission.[1]

Cases such as this are difficult because they involve conflicting rights. Many states and localities prohibit discrimination on the basis of sexual orientation, and every state and the Constitution’s First Amendment protect religious liberty. Some of these cases also raise questions about whether florists, bakers, photographers, or other creative professionals can be compelled to communicate messages to which they object.

Absolute Victory or Compromise?  

Activists often seek total victory for their side. Refreshingly, most of the authors in Religious Freedom, LGBT Rights, and the Prospects for the Common Good believe that there is room for compromise. The collection’s editors, William N. Eskridge, Jr. and Robin Fretwell Wilson, recruited leading scholars and activists to write 34 essays that provide an excellent overview of these debates and, in most cases, suggest compromises that could better protect the rights of all Americans.

After a helpful introduction by the editors, the book begins with a section dedicated to framing a dialogue that might lead to the discovery of common ground. Particularly noteworthy is the chapter by Douglas Laycock, a longtime proponent of the legal recognition of same-sex marriage and a well-known advocate of religious freedom. Laycock makes the provocative observation (not original to him but well worth repeating) that “sexual minorities and religious minorities make essentially parallel claims on the larger society.” He suggests that if each took the needs of the other more seriously, it would be relatively easy to pass laws protecting lesbian, gay, bisexual, and transgender Americans in red states and religious citizens in blue states.

Alas, not every contributor agrees. When wedding-service providers decline to serve to same-sex couples, their actions may cause offense. This offense has been called a “dignitary harm,” and is the sort of “third party harm” that cannot be tolerated, at least according to contributors Douglas NeJaime and Reva B. Siegal. Religious accommodations that permit such offense differ from “traditional religious liberty claims” that, in their telling, harm no one.

A major problem with the concept of third-party harms is that they often reside, in contributor Ronald Krotoszynski’s words, “in the eye of the beholder.” He points out that the First Amendment has long protected activities that cause harm to others—such as the “profound offense veterans experience when subjected to flag burning.”  

More substantially, from the early colonies to the present day, religious pacifists have been granted exemptions from military service. Surely increasing non-pacifists’ chances of being drafted constitutes a harm to non-pacifists who do not want to serve in the military. The unwilling draftee might well view this harm as greater than a same-sex couple views the harm of being unable to obtain a custom cake from a particular baker.

Few Americans have benefited more from religious accommodations than have Mennonites and Quakers. One would think this would make them supportive of protecting the religious convictions of others, and perhaps it does. Not so in the case of contributor Jason Moyer, a Mennonite professor at a Quaker school. In his essay, Moyer lectures evangelicals about the importance of not imposing their views on others. Mrs. Stutzman in Washington state should simply participate in a same-sex wedding, even though she believes it would be “dishonoring to God, and my convictions.”

Moyer appears to believe that he speaks from a place of authority because he is a member of a religious minority. According to him, “conservative Christians,” by contrast, continue to occupy “the majority position” in America today. To support this remarkable claim, he cites a Pew poll that shows that 70 percent of Americans self-identify as Christians. But of course this figure includes many Christians who are political and/or theological liberals. By any plausible definition, conservative Christians are a minority in America, and there is little reason to believe that more than a handful of them object to providing certain services to same-sex couples. Indeed, I would wager a great deal of money that there are far more Mennonites who have registered as conscientious objectors than there are conservative Christians who have declined to participate in same-sex wedding ceremonies.

Better Protecting the Rights  of All Citizens

Fortunately, essays such as those penned by NeJaime, Siegal, and Moyer constitute a distinct minority in this volume. Far more representative are those by Laycock, Kent Greenawalt, and Wilson, all of whom are genuinely concerned with finding common ground. Writers in the latter group differ as to details, but their proposed compromises include: 1) passing laws to prohibit discrimination on the basis of sexual orientation in states that currently have no such laws, 2) carving out exemptions to protect small business owners, but only if there alternative providers nearby, and 3) requiring these businesses to provide fair notice so that would-be customers are not surprised.

Can such compromises be crafted in the real world? The religious and political leaders who are included in this volume believe so. Particularly encouraging are chapters by Latter Day Saints leader Elder Von G. Keetch and Utah State Senator J. Stuart Adams, both of whom were influential drafting the “Utah Compromise.” This legislation, which was passed in 2015, prohibited discrimination on the basis of sexual orientation in that reddest of red states, but in a manner that ensured religious citizens would not be compelled to act against their religious convictions.

If states allowed creative professionals to refuse to participate in same-sex wedding ceremonies, would that oblige states to permit creative professionals to decline to provide services for interracial couples? LGBT rights activists often answer this question with a resounding “yes,” and so conclude that no exceptions should be made. However, essays in this volume by Steven D. Smith, Michael J. Perry, and Ryan Anderson successfully call into question this analogy and contend that it should not prevent reasonable compromises from being made.

Some religious conservatives believe that LGBT activists will not be satisfied until clergy are required to officiate at same-sex weddings and houses of worship are required to host them. Currently, virtually no one is advocating such policies. A far more realistic fear is that the Internal Revenue Service might revoke the 501c3 status of religious colleges, hospitals, and other institutions if they have policies that discriminate on the basis of sexual orientation. The Supreme Court upheld such a decision with respect to racial discrimination in Bob Jones University v. United States (1983).

No one familiar with Eskridge’s work doubts his commitment to advancing and protecting LGBT rights. It might reassure conservatives that he believes that for “the foreseeable future, Bob Jones poses no threat to the tax exemptions accorded churches, synagogues, mosques, and other places of worship, as well as core religious institutions.” But even if this were not the case, he suggests that it “is not in the best interest of the LGBT rights movement to insist upon disciplining churches for not following the Supreme Court’s lead.” It is far better, in his estimation, to attempt to win the hearts and minds of religious conservatives, and to tolerate those who continue to oppose same-sex marriage.

Anti-discrimination laws have created hardship for some small business owners, and contributor Thomas Berg contends that they may harm others as well. Berg gives as an example the fact that Catholic Charities branches “in Massachusetts, Illinois, and the District of Columbia stopped performing adoptions because of rule requiring them to place children with same-sex couples. The states lost the benefit of the organizations’ experience and contacts, especially concerning hard-to-place children with special needs.”

This is only the tip of the iceberg. Berg shows that religious institutions do a great deal of good, and that many of them will stop providing services to avoid being required to violate their religious and moral convictions. He suggests that sensible accommodations should be crafted to protect these organizations, provided of course that other organizations are available to offer the services in question to LGBT Americans.

Religious Freedom, LGBT Rights, and the Prospects for the Common Good is an encouraging volume. Collectively, the chapters make an excellent case that it is possible to better protect LGBT rights without forcing citizens such as Barronelle Stutzman to choose between their professions and their religious convictions. One can only hope that it finds its way into the hands of state legislators throughout the country.

[1] In the interests of full disclosure, I was an expert witness for the Alliance Defending Freedom in Barronelle Stutzman’s case. I wrote a report, a revised version of which was published in 2015 by the Heritage Foundation as “Religious Accommodations and the Common Good.” Alas, I never had the chance to testify because the trial judge determined, quite remarkably, that no facts were in dispute and the law was clear. Accordingly, he granted summary judgement and the case never went to trial.

Reader Discussion

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.

on March 04, 2019 at 12:17:22 pm

Those educated in history and practice of law have an undeniable advantage over those who must rely on "common sense" and some (but not enough) training in thinking logically. Simple does not mean possible under the law. I understand that.

Still, it seems good to mention simple solutions that might be of some aid in solving complicated problems. In the case of rights, for example - those pertaining to religious freedom as well as those protecting constitutional rights of the citizenry - it seems reasonable to distinguish between services and products necessary to life and those which can be termed "discretionary".

Food, water, shelter, clothing, fuel - these are necessary things. They require service to all at restaurants and food markets, access to running or bottled water for everyone, access to stores and web sites where clothing can be purchased, fuel for cars and home heating systems available at stations or by delivery. Also we would add welfare funding for those who do not have financial resources and who require access to these things and services. Motel and hotel, room rental accommodations, function halls are in this category. These things can often be provided by local and municipal authorities.

Wedding cakes, flowers, photographs, and music are not necessary to marriage. They are decorative. They are discretionary. To force persons of good will who do not agree with our new expansion of marriage to serve those who do seems, on its face, discriminatory and oppressive.

People of religious faith, many of whom in past times supported forced adherence to a particular set of beliefs, have almost all come to understand that this is wrong. It is impossible to force belief. It is also profoundly wrong to force others to act as if they believe as one dominant group does; even worse, to impose penalties for those who do not conform. This is tyranny. If today a religious group were to try to force such a thing, the punishment would be immediate and severe - and rightly so. Has an old wrong become right?

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Latecomer
on March 05, 2019 at 11:15:19 am

I have a million dollar idea based on your comment: LGBTQ Green Book. Ya know, a listing by service & state of religious bigots who won't/don't serve people they don't like. Indiana for example, can pass "Deny Women the right to deny sex to any man" law. Alabama can gleefully enact segregation laws. You know Utah will go all out (pun intended) against gayness, perceived gayness or denial of gayness. They could go back to biblical laws of stoning. Won't that be fun???
American ideals have been sorely torn asunder under the hypocritical term of 'religious freedom."

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Robin Smith
on March 05, 2019 at 14:15:03 pm

Mark David Hall:

[P]roposed compromises include … 2) carving out exemptions to protect small business owners, but only if there alternative providers nearby, and 3) requiring these businesses to provide fair notice so that would-be customers are not surprised.

Latecomer:

[S]imple solutions that might be of some aid in solving complicated problems…. [I]t seems reasonable to distinguish between services and products necessary to life and those which can be termed “discretionary”.

Food, water, shelter, clothing, fuel – these are necessary things….

Wedding cakes, flowers, photographs, and music are not necessary to marriage. They are decorative. They are discretionary. To force persons of good will who do not agree with our new expansion of marriage to serve those who do seems, on its face, discriminatory and oppressive.

I like these instincts: We sense that there are some kinds of antidiscrimination claims that seem trivial. We struggle to find some basis to distinguish between the meritorious claims and the less meritorious. The “really important stuff”/”less important stuff” distinction is popular.

But let me suggest a different basis for drawing the dividing line: the Market Power Affirmative Defense. Basically, I would be allowed to discriminate if I can refer the person I’m dealing with to someplace nearby where they can get comparable goods/services/housing/employment at comparable terms. The premise is that the law should provide compensation when a discriminator leaves people with less desirable options. If people have comparable options, then the discriminator doesn’t actually do any (compensable) harm. (There’s a lot more to it; click the link to learn more.)

Ok, yes, there’s that “dignity harm.” And on that point, I simply say that the law would not attempt to redress that kind of harm—not because such harms don’t exist, but because those are the kinds of harms we must be prepared to endure in a world with freedom of speech and religion.

And let’s get serious: SCOTUS upheld the right of the Westboro Baptist Church to picket outside military funerals carrying signs saying, “God Hates Fags” and “Thank God for Dead Soldiers.” If we acknowledge that free speech defends the right to engage in that kind of behavior, how can anyone seriously argue that withholding a flower arrangement should trigger compensable harm?

Well, I’ll tell you how: People make that argument because Americans have developed the idea of the Sovereign Consumer: As consumers, we expect, and believe we have a right, to be catered to by businessmen. When I tell people that a businessman has the absolute right to throw you out of their store because they don’t like the fact that you attended Michigan University, or that you are blond, they can’t believe it. Surely there must be a law against that! Nope—not to my knowledge. Businessmen can discriminate for good reasons, bad reasons, or no reason—just not a SUSPECT reason.

I generally value autonomy. That that means the right to refrain from associating with people for good reasons, bad reasons, or no reason—anything other than a forbidden reason. Even for businessmen.

Admittedly, I have persuaded very few people to embrace this policy. I sense that for many people, anti-discrimination law is not economic policy. It's moral policy. They take offense at discrimination based on suspect categories, and crave to see the law vindicate their righteous indignation. The Market Power Affirmative Defense would explicitly NOT provide that kind of vindication. But having courts vindicate moral views rather than remedy harms--doesn't that look a lot like Establishment of Religion?

I want the law to punish undue discriminators NOT because they're immoral, but because they cause (compensable) harm to others--harm that goes beyond dignity harm. I'll get my moral lessons from private actors, thank you very much.

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nobody.really
on March 05, 2019 at 16:38:56 pm

The Internal Revenue Service might revoke the 501c3 status of religious colleges, hospitals, and other institutions if they have policies that discriminate on the basis of sexual orientation. The Supreme Court upheld such a decision with respect to racial discrimination in Bob Jones University v. United States (1983).

Yeah, I’ve long grumbled about that one. I favor policy unbundling: If government wants to subsidize higher ed, then subsidize higher ed. If government wants to subsidize racial integration, then subsidize racial integration. But don’t combine your higher ed policies with your racial integration policies; let each policy stand on its own—even if this occasionally means government programs work at cross-purposes. The alternative practice—coordinating government programs—creates too much potential for coercion.

To this point: I favor repealing Section 501c3. Use the tax code to raise revenues. Use the spending power to subsidize what government wants to subsidize. And if the two policies sometimes work at cross-purposes, so be it. But don’t hide spending as a tax exemption.

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nobody.really
on March 06, 2019 at 18:27:40 pm

LGBTQ activists have driven, and continue to drive, this confrontation between religious conservatives and themselves.

Activists by their very nature are not compromising or conciliatory, so good luck with that Mr. Eskridge.

There are two reasons this confrontation seems viable to LGBTQ activists.

The first is 'protected classes' at the Federal level.

The second is a mashing together of all kinds of things under the rubric of 'civil rights'.

Without a hierarchy of 'civil rights', there is no simple way to adjudicate claims of 'violating civil rights' where different notions of 'civil rights' are in conflict.

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HamburgerToday
on March 07, 2019 at 08:12:45 am

This comment clarifies the issue under discussion.

My naive attempt to invoke "common sense" required a shared sense of things we hold "self-evident" such as in "all men are created equal". ("men" included "women" in the usage of the time. I apologize to all who are offended by that usage.)

Thank you to "nobody really" for posting his/her thinking on the questions before us. The replies helped me to recover from the verbal assault that was phrased to inflict personal insults and injury. It had the desired effect.

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Latecomer
on March 10, 2019 at 11:01:53 am

"Cases such as this are difficult because they involve conflicting rights."

Exactly wrong. These cases are simple because the homosexual agitators are not entitled to special treatment under the law. No one has a "right" to demand someone else serve him or give him a product (totalitarian diktats mandating special treatment for certain perverse sexual behaviors notwithstanding).

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Slaw
on March 10, 2019 at 11:04:11 am

People who oppose the homosexual agenda are not the "bigots" (Your (mis)use of the term implies you have no idea of its meaning).

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slaw
on March 10, 2019 at 11:07:42 am

The fatal conceit of this entire argument is that there are no such a things as homosexual "rights." There are only rights; and those are generally applicable to all people regardless of sexual perversion.

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Slaw
on March 10, 2019 at 11:12:41 am

Except, of course, that this conflates a phenotype (i.e. , skin color and directly dictated by genes) with a sexual behavior, which is at it's essence a choice. This argument is both incredibly (1) dishonest; and (2) offensive to all who worked for actual civil rights (i.e., the law treating all under it the same).

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slaw
on March 10, 2019 at 11:13:13 am
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slaw
on March 11, 2019 at 19:14:58 pm

Any attempt on the part of State or Federal Government, to coerce any person into denying The Sanctity of the marital act, by reordering men and women, according to sexual desire/inclination/orientation, which necessarily sexually objectifies the human person, and denies our inherent Dignity as a beloved son or daughter, while violating God’s Commandment regarding lust and the sin of adultery, simultaneously, in an attempt to coerce the affirmation of sexual acts that would necessarily deny the Sanctity of the marital act within The Sacrament of Holy Matrimony, would be a violation of The First Amendment for all Faithful Catholics in communion with Christ and His One, Holy, Catholic, and Apostolic Church.
For Catholics, “It is not possible to have Sacramental Communion without Ecclesial Communion”, due to The Unity Of The Holy Ghost.
It is not possible to coerce a Catholic into denying the Sanctity of the marital act, without first and foremost, “prohibiting the free exercise” of Catholicism, and any other religion that takes Genesis, and thus the fact that God Is The Author Of Love, Of Life, and Of Marriage, seriously.
The fatal conceit of this entire argument is the failure to recognize that while sexual morality will always serve out of respect for the inherent Dignity of the human person, sexual immorality will always serve to demean the inherent Dignity of the human person.

“Caritas In Veritate; Veritas In Caritate”, Through The Unity Of The Holy Ghost. Amen

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Nancy

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.