Two big stories emerged last week. The first is that the Indiana Legislature announced a “fix” to the state’s Religious Freedom Restoration Act (“RFRA”), one which explicitly protects sexual orientation and gender identity from “discrimination.” The second is that Arkansas has passed its own RFRA.
The so-called “fix” of Indiana’s RFRA is nothing of the sort. The only thing it accomplishes is to essentially guarantee that the religious freedom of private business owners will not be protected in Indiana. It does so by explicitly stating that businesses or individuals may not refuse to provide services to any member of the public based on sexual orientation or gender identity. The effect of this change is to virtually eliminate from the law any protection for an individual or business that declines for conscience-based reasons to provide artistic services in support of a same-sex wedding.
RFRAs are designed to protect the religious liberty of all citizens. Here are ten Americans who have been protected by such laws. Citizens throughout the country thus should celebrate the passage of these laws because they help ensure that religious freedom will endure in America. Unfortunately, in Indiana, countless individuals will now be pressured to abandon their religious convictions in order to do business in that state. Here are a few examples of why RFRAs matter:
In 2006, photographer Elaine Huguenin was asked to create images telling the story of a same-sex commitment ceremony. Elaine politely declined because it would force her to “commemorate and promote a message contrary to [her] sincerely held religious and moral beliefs.” In a subsequent email exchange, Elaine made it clear that she did not refuse to provide services to same-sex couples, only that she “does not photograph same-sex weddings.”
As a side note, Elaine’s choice to decline the request to photograph a same-sex commitment ceremony was not based on the couple’s sexual orientation. She happily provided her services to individuals, regardless of sexual orientation, race, creed, disability, or any other factor. Her policy was simply that she would not participate in—or create pictures telling the story of—a same-sex commitment ceremony, because it violated her sincerely held religious belief that marriage is between a man and a woman. Notably, Elaine did not single out same-sex commitment ceremonies as the only events she would not photograph. She had previously turned down an invitation to photograph the production of a horror movie, and she also would not positively portray or otherwise endorse abortion, pornography, nudity, or any marital union between anyone other than one man and one woman, including polygamy or same-sex unions.
Elaine’s explanation failed to satisfy the couple, who filed a complaint against Elaine, which led to a ruling that it violated the New Mexico Human Rights Act for Elaine to run her business according to her religious beliefs, and an order that she pay attorney’s fees and costs to the couple.
In 2013, Barronelle Stutzman, a floral artist, was asked to use her artistic talents to design floral arrangements for a customer’s same-sex wedding ceremony. The customer, Robert Ingersoll, was a regular at Arlene’s Flowers. Rob agreed that Arlene’s Flowers sold flowers to him possibly 30 or more times during an almost ten year period, and estimated that Barronelle personally sold flowers to him at least 20 times, almost all of which she personally designed for him. She considered him a friend, saying, “[h]e has a very creative mind and we just kind of hit it off.” Barronelle knew Rob identified as gay, and some of those floral arrangements she thoughtfully designed were for his partner, Curt Freed.
But because Barronelle follows the Bible’s teaching that marriage is only between a man and a woman, she felt obligated to politely decline Rob’s invitation to design floral arrangements for his wedding. She explained, “as much as I loved Rob, I just couldn’t be a part of that. If I did Rob’s wedding, it would be from my heart because I think he is a really special person and I would want to make it really special for him.”
While Barronelle chose not to offer the specific service of designing floral arrangements for Rob’s wedding, she unquestionably served him. She spoke with him about his wedding plans and about his hope that his mother would walk him down the aisle, and she happily referred him to several other local florists. Before Rob left the store, he and Barronelle embraced.
Despite all this, Washington State Attorney General Ferguson heard about the matter through media and filed a lawsuit against Barronelle, and the ACLU quickly followed suit.
The result: a Washington state trial court ruled on February 18 that Barronelle had committed unlawful discrimination. In its ruling, the court left no doubt that faith could not coexist with “tolerance” in Washington, finding that “[Barronelle] cannot comply with both the law and her faith.”
A Cake Baker
In 2012, cake artist Jack Phillips, owner of Masterpiece Cakeshop, was asked to design a wedding cake to celebrate a couple’s same-sex ceremony. Because it would violate his religious beliefs to design a cake promoting same-sex marriage, Jack politely declined, but offered to sell the couple any other type of baked item they wanted.
While the couple had no difficulty obtaining their desired cake from another nearby baker, they nonetheless filed a complaint with the Colorado Civil Rights Division, which ruled against Phillips. One of the commissioners who ruled against him later compared him to a Nazi.
The commission ordered Jack and his staff to design cakes for same-sex celebrations, and also required Jack to “re-educate” his staff that Colorado’s Anti-Discrimination Act requires artists to endorse all views. The commission’s order also compels Jack to implement new policies to comply with the commission’s order, and requires him to file quarterly “compliance” reports for two years. The reports must include the number of patrons declined a wedding cake or any other product and state the reason for doing so to ensure he has fully eliminated his religious beliefs from his business.
It’s Common Sense
If Elaine, Barronelle, or Jack had been in Indiana and the original version of the Indiana RFRA had been in force, their religious freedom might have been preserved. There would have been no guarantee that they would have ultimately prevailed, but the original RFRA would have provided them with a fair hearing for religious freedom. That law would have required the government to show that these substantial burdens on the exercise of their religion were in furtherance of a compelling government interest and was the least restrictive means of furthering that interest.
Now, however, businesses and individuals like these three cannot rely on the Indiana RFRA to provide any protection for their religious freedom.
Many who are speaking out against RFRAs lack a fundamental understanding of their purpose. They also tend to oppose the law simply because they oppose the particular beliefs of some who would benefit from such a law.
But religious freedom and rights of conscience should matter to all people.
When religious freedom and rights of conscience are valued and protected, everyone benefits.
Alan Sears, the president of ADF, experienced this firsthand. In 2013, a photographer refused to photograph Alan’s family for their annual Christmas card, saying “I oppose the goals and objectives of your organization and have no interest in working on its behalf.” Alan supported the photographer's right to follow her conscience, saying “I think I’m a pretty nice guy, and my family are kind folks, but to require this woman to portray me in a loving, family-centered way that is contrary to her views and her conscience, I think it would be an act of violence against her dignity.”
Alan’s reaction tangibly illustrates that when religious freedom and rights of conscience are evenhandedly protected, everyone benefits.
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