February 18, 2014
By Ryan T. Anderson, Ph.D. and Leslie Ford
A growing number of incidents show that the redefinition of marriage and state policies on sexual orientation have created a climate of intolerance and intimidation for citizens who believe that marriage is the union of a man and a woman and that sexual relations are properly reserved for marriage. Now comes government coercion and discrimination. Laws that create special privileges based on sexual orientation and gender identity are being used to trump fundamental civil liberties such as freedom of speech and the free exercise of religion.
These laws add sexual orientation and gender identity (dubbed SOGI) to the list of protected classes such as those grouped by race, sex, and national origin. Unfortunately, these sexual orientation and gender laws have serious flaws. They frequently fail to protect the civil liberties of Americans, especially our religious liberty. These SOGI laws tend to be vague and overly broad without clear definitions of what conduct can and cannot be penalized. The definitions can be entirely subjective: Boise and other cities in Idaho now prohibit even indirect acts that make another person feel he is being “treated as not welcome.” And increasingly these local SOGI laws have criminal penalties, unlike the landmark Civil Rights Law of 1964.
Under the newer laws, family businesses — especially photographers, bakers, florists, and others involved in the wedding industry — have been hauled into court because they declined to provide services for a same-sex ceremony that they viewed as a violation of their religious beliefs.
Yes, Americans must be free to live and love how they choose, but we should not use government to penalize those who think and act differently. Protecting religious liberty and the rights of conscience does not infringe on anyone’s sexual freedoms. All Americans should remain free in the public square to act in accordance with their beliefs about marriage without fear of government penalty.
In addition to the well-known examples of Christian adoption and foster-care agencies that have been forced to stop providing those services because they object to placing children in same-sex households, the examples below show how government has penalized citizens trying to run their businesses in accordance with their beliefs.
The case of Elaine Huguenin and her husband, Jon, is perhaps the best-known example of violations of religious liberty at the state level. The Huguenins’ case has progressed the furthest and might soon make it to the U.S. Supreme Court. As described previously on NRO, the Huguenins run Elane Photography, a small business in Albuquerque, N.M. In 2006, the couple declined a request to photograph a same-sex commitment ceremony because, as Elaine explains, “the message a same-sex commitment ceremony communicates is not one I believe.”
Elane Photography didn’t refuse to take pictures of gay and lesbian individuals, but it did refuse to photograph a ceremony that ran counter to the owners’ belief that marriage is the union of a man and a woman (a belief that New Mexico law endorses). Other photographers in the Albuquerque area were more than happy to photograph the event.
But in 2008, the New Mexico Human Rights Commission ruled that the Huguenins, by declining to use their artistic and expressive skills to communicate what what occurred at the ceremony, had discriminated based on sexual orientation. The commission ordered them to pay $6,637.94 in attorneys’ fees. The ruling cited New Mexico’s human-rights law, which prohibits discrimination in “public accommodations” (that is, “any establishment that provides or offers its services . . . or goods to the public”) based on race, religion, and sexual orientation — among other protected classes.
At the end of 2013, the New Mexico Supreme Court upheld the Human Rights Commission. It concluded that under the state’s sexual-orientation and gender-identity law, the First Amendment does not protect a photographer’s freedom to decline to take pictures of a same-sex commitment ceremony even when doing so would violate the photographer’s deeply held religious beliefs. Justice Richard C. Bosson, in a concurring opinion, made the additional claim that requiring the Huguenins to relinquish their religious convictions was permissible as “the price of citizenship.”
Elane Photography has petitioned the U.S. Supreme Court for review of its case.
In early 2013, two women, Rachel Cryer and Laurel Bowman, asked the Oregon bakery Sweet Cakes by Melissa to bake a wedding cake for their same-sex commitment ceremony. Although bakery owners Melissa and Aaron Klein consistently had served all customers on a regular basis, they asserted that this request would have required them to facilitate and celebrate a same-sex relationship — which would violate their religious belief that marriage is the union of one man and one woman. (Oregon law defines marriage in the same way.)
Soon afterward, Cryer and Bowman filed a complaint under the Oregon Equality Act of 2007, which prohibits discrimination based on sexual orientation. During an investigation by Oregon’s Bureau of Labor and Industries, bureau official Brad Avakian commented: “The goal is to rehabilitate. For those who do violate the law, we want them to learn from that experience and have a good, successful business in Oregon.”
In January, the agency issued a ruling that held that the Kleins violated Oregon’s sexual-orientation law when they declined to bake the cake.
Melissa and Aaron Klein faced increasing ridicule for their unwillingness to violate their beliefs. Sweet Cakes by Melissa came under threats, vicious protests, and boycotts. The Kleins, who have five children, reportedly received hundreds of phone calls and letters, including death threats to the family. Fearing for their safety, the Kleins decided to close the doors of their small business in September 2013 and operate from an in-home bakery. In the meantime, the family still has to deal with the Labor Commission’s conclusion that they violated Oregon’s law. The case is likely to proceed to an administrative law judge.
A similar situation occurred when a judge in Colorado — a state that in 2006 constitutionally defined marriage as the union of a man and a woman — decided that Jack Phillips, owner of Masterpiece Cakeshop, violated the law when he declined to bake a cake for a same-sex wedding reception.
In 2012, a same-sex couple received a marriage license in Massachusetts and asked Phillips to bake a cake for a reception back home in Denver. On the basis of his faith, Phillips declined to create a wedding cake: “I don’t feel like I should participate in their wedding, and when I do a cake, I feel like I am participating in the ceremony or the event or the celebration that the cake is for.” The couple obtained a wedding cake, one with rainbow-colored filling, from another local bakery.
The American Civil Liberties Union filed a complaint against Masterpiece Cakeshop with the state, alleging violations of Colorado’s public-accommodation law. Administrative Law Judge Robert N. Spencer ruled against the bakery on December 6, 2013, concluding that Phillips violated the law by refusing service to the two men “because of their sexual orientation.”
Phillips objected to this characterization and responded that that he would happily sell the couple his baked goods for any number of occasions, but baking a wedding cake would force him to express something that he does not believe, violating his freedom to run his business in step with his faith.
On March 1, 2013, longtime customers Roger Ingersoll and Curt Freed met with Arlene’s Flowers and Gifts shop owner Barronelle Stutzman to request that she arrange the flowers for their same-sex wedding ceremony. Washington State had redefined marriage the previous year. Stutzman responded that she could not accept the job because of her “relationship with Jesus Christ” and her belief that marriage is between one man and one woman.
Acting on a complaint filed by the two men, Washington Attorney General Bob Ferguson filed suit against Stutzman, contending that she had violated the state’s sexual-orientation law. Ferguson seeks a $2,000 fine and a court order forcing Barronelle to violate her conscience by using her artistic talents to celebrate a same-sex relationship.
Government should respect those who stand for marriage as the union of a man and a woman. Even in jurisdictions that have redefined marriage, those who believe that marriage is between a man and a woman should be free to live according to their moral and religious convictions.
When he “evolved” on the issue, President Obama insisted that the debate about marriage was a legitimate one and that reasonable people of good will stood on both sides. “Folks who feel very strongly that marriage should be defined narrowly as between a man and a woman — many of them are not coming at it from a mean-spirited perspective,” he said. “They’re coming at it because they care about families.” He added that “a bunch of ’em are friends of mine . . . people who I deeply respect.”
The examples above, though, reveal that in a growing number of incidents, government hasn’t respected the beliefs of all Americans.
Respecting religious liberty for all those in the marketplace is particularly important. After all, as first lady Michelle Obama put it: “Our faith journey isn’t just about showing up on Sunday for a good sermon and good music and a good meal. It’s about what we do Monday through Saturday as well.”
Congress has an opportunity to protect religious liberty and the rights of conscience at the federal level. Policy should prohibit the government from discriminating against any individual or group, whether nonprofit or for-profit, based on their beliefs that marriage is the union of a man and woman or that sexual relations are reserved for marriage. Policy should prohibit the government from discriminating against such groups or individuals in tax policy, employment, licensing, accreditation, or contracting.
The Marriage and Religious Freedom Act, sponsored by Representative Raul Labrador (R., Idaho) in the House (H.R. 3133) with 100 co-sponsors of both parties and sponsored by Senator Mike Lee (R., Utah) in the Senate (S. 1808) with 17 co-sponsors, would prevent the federal government from taking adverse actions. And rightly so: Tolerance is essential to promoting peaceful coexistence even amid disagreement. States need similar policy protections, starting with broad, across-the-board protections provided by state-level Religious Freedom Restoration Acts.
We must work to make sure that marriage law does not marginalize those who believe what virtually every human society has believed about marriage: that it is the union of a man and a woman ordered to procreation and family life. Such belief must not be treated as an irrational prejudice to be purged from the culture. Christians such as Barronelle Stutzman are now seeing the ugly consequences of such marginalization, and the threats they face are the opposite of civil or tolerant.
- Ryan T. Anderson is a William E. Simon Fellow at the Heritage Foundation.
- Leslie Ford is a research assistant at the Heritage Foundation’s DeVos Center for Religion and Civil Society.
Originally appeared in The National Review
Ryan T. Anderson, Ph.D.
William E. Simon Fellow in Religion and a Free Society
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