We are about to learn that the First Amendment is the cornerstone of our civil peace by seeing it endangered: this is the real lesson of Masterpiece.
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.
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.
 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.