Huston I: The Baker and the Photographer

March 27, 2015

For the use of the membership only; not for duplication, distribution or quotation without permission of the author.

by Tom Charles Huston

I am astonished at the fury the gay lobby has succeeded in unleashing with respect to legislation that is likely to have little practical impact on gays. This success should be a bell in the night for conservatives who labor under the illusion that acquiescence in the judicial legalization of same-sex marriage will settle the differences between them and gay activists. What we have seen up close in recent weeks is the heavy-handed bullying that is characteristic of this particular political force. These folks don’t engage in discussion or debate; their only mode of discourse is threats. They have intimidated a lot of people and confused others. They now speak for the organized Democratic Party, and the organs of the Democratic Party, such as the Indianapolis Star, now speak for them. They are joined at the hip with the abortionists, and they are inherently hostile to religion as it is practiced by millions of professing Christians in the Protestant Evangelical and Roman Catholic traditions.

Federal, state and local laws and ordinances prescribe a wide range of discriminatory conduct that varies from community to community and state to state. Indianapolis is illustrative of those jurisdictions with the broadest conceivable range of protected classes. Its human-rights ordinance prohibits “the exclusion from or failure or refusal to extend to any person equal opportunities or any difference in the treatment of any person by reason of race, sex, sexual orientation, gender identity, religion, color, national origin or ancestry, disability, age or United States military service veteran status.”

The Indianapolis ordinance does not apply to businesses with fewer than six employees or to any “not-for-profit corporation or association organized exclusively for fraternal or religious purposes, or to any school, education, charitable or religious institution owned or conducted by, or affiliated with, a church or religious institution, nor any exclusively social club, corporation or association that is not organized for profit and is not in fact open to the general public.” The ordinance also includes the so-called “widow’s exclusion,” which exempts from the housing provisions the rental of rooms in a boarding house or single-family home that is occupied at the time of letting by the owner.

Without regard to any religious-liberty law, it is currently lawful in the city of Indianapolis (insofar as its own ordinances are concerned) for any homeowner letting (renting) a room in her residence, any employer with five or fewer employees, any private social club not open to the public, and any church or school, hospital or other institution affiliated with a church or religious institution to discriminate against whomever it wishes.

NOTWITHSTANDING all the high-toned rhetoric about Indianapolis being a “welcoming” place for every individual who comes to town, the fact is that those businesses and institutions most likely to discriminate against gays or lesbians are currently at liberty to do so, and they have no need to rely on any alleged infringement of religious liberty as justification.

Why is that? Because the Indianapolis City-County Council in its infinite wisdom has decided that the best way to maintain peace and tranquility in the community is not to deploy government agents to search every back alley and cubbyhole for incidences of discrimination that have historically arisen in the normal course of the practice of established religion, the free association of individuals for social purposes, and maintaining the peace of mind of the owner-occupant of a boarding house. Such exclusions were part of the original compromise that made possible the adoption of the Civil Rights Act of 1964, and they have heretofore been deemed reasonable accommodations.

I find it inconceivable that a court would find that adherence to the ordinance requirements as they currently exist would “substantially burden” an individual’s exercise of religion except, perhaps, in a very narrow category that involves the provision of personal services. Non-discrimination on the basis of race and other factors in the provision of public accommodations has been the law of the land since 1964. I don’t believe any Indiana court is likely to conclude that extending this commercial rule to encompass sexual orientation or gender identity is unconstitutional. The current rule seems to be that discrimination against gays in commercial transactions is lawful unless a statute or ordinance exists that holds to the contrary. Indianapolis, but not the state of Indiana or many of its other cities, has chosen to bring gays and lesbians within the protection of its laws prohibiting discrimination. I don’t have any problem with that, although I believe that anti-discrimination laws, particularly in the employment context, distort markets and personal relations in ways not generally perceived by those who advocate them.

THE EMERGING SYMBOLS of anti-gay discrimination seem to be the reluctant baker and the recalcitrant photographer. In my judgment, they present materially different cases.

I am unconvinced that baking a cake for a gay couple in the ordinary course of the bakery business involves any sort of participation in or approval of the function at which the cake is to be enjoyed. To the extent that it does, it seems to me the nexus is too remote to justify any exception from the generally applicable rule. If you choose to be in the commercial bakery business in a jurisdiction that prohibits discrimination against gays in the provision of goods and services, you are going to have to bake a cake for a gay couple if requested to do so.

The wedding photographer has, I think, a much more compelling argument as to why she should not be forced to participate in a ceremony to which she has religious objections. Unlike the baker, her product is not a commodity but a service. It requires her presence at and active participation in the rites of marriage, and it demands the exercise of her unique artistic talent. Commandeering the personalized services of an individual against her will (and religious convictions) and demanding her presence at a place she doesn’t want to be under circumstances that she finds objectionable strike me as substantial burdens on her religious liberty. The trade-off here in a rational world would be the burden on the religious convictions of the objecting photographer versus the burden on the gay couple to engage a photographer who is delighted to render the service. I don’t see how anyone wins by forcing an individual to provide personal services against her will under these circumstances.

I favor the religious liberty bill not because I think it represents some sort of “relief” from the judicial imposition of gay marriage, but because I believe government should always bear the burden of proof in establishing that any infringement whatsoever on religious liberty is the least intrusive means available to realize the public benefit intended to be afforded by governmental action. I doubt that it will matter much in cases involving gay rights except in the few instances that involve the commandeering of personal services such as I describe above, but I believe it may matter very much in other cases involving sexuality, particularly government mandates relating to contraception, abortion and artificial conception.

The bullying we have witnessed over the past few weeks is a sign of things to come. Avoiding the temptation to surrender out of moral exhaustion or political expediency is a challenge that will test the faithfulness of many believers.

Tom Charles Huston, A.B., J.D., an adjunct scholar of the Indiana Policy Review who resides in Indianapolis, and served as an officer in the United States Army assigned to the Defense Intelligence Agency and as associate counsel to the president of the United States.

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