By: Harel Kopelman  | 

Can We Stop?

There are three questions every American must ask today. Without stopping to reflect carefully on what is going on in our country which is slowly shifting away from enshrining personal liberty towards Orwellian dystopia, we are faced with the extinction of our most cherished values.

The questions are, can we stop?

First, Can we stop pretending that Indiana’s Religious Freedom Restoration Act (RFRA), a law which simply restates a federal mandate signed into law by then-president Bill Clinton with the overwhelming backing of a Democratically-controlled Senate in 1993, is bigotry?

For those unfamiliar with the bill, whose renown in the media following Indiana governor Michael Pence’s signing it into law last month is outdone only by its presence in 19 state legislatures and 11 state courts, RFRA is not a religion-sanctified license to discriminate.

It is simply a balancing test, which says, “The state cannot substantially burden a person’s exercise of religion unless it is furthering a compelling government interest and acting in the least restrictive way possible.”

That does not mean that if, as detractors claim, a small business owner refused to service a same-sex marriage ceremony because of religiously-held convictions that they could not be sued for alleged discrimination.

Lest the left repeat its groupthink mantra that this law is simply a way to strip gays of their rights, let us harken back to where this sort of legislation has been applied before: to allow a Muslim man being held in an Arkansas prison to protest the policy forbidding growing facial hair for security reasons. This appeal reached the Supreme Court, which agreed that the prison must allow him to grow a beard as per his religious convictions.

Another time an RFRA was used to protect individual liberty was when a Native American student in Texas protested his school’s policy that all boys must keep their hair short, citing his religious belief that his hair must be allowed to grow freely. He won.

In conclusion, the law simply states that courts must apply RFRA’s high standard for upholding religious liberty instead of furthering government interests. The religious plaintiff in whatever case may win or lose; but the law does not give the right to discriminate.

But can we stop even throwing around the d-word? Stop pretending that religious Christian small business owners who prefer not to cater same-sex marriages are doing so not out of hatred or ill-will, but out of honest religious convictions pertaining to traditional marriage, especially as they proudly serve LGBTQ persons as they would any other customer?

Take the case of Barronelle Stutzman, a Washington florist who happily served her gay customers for nine years, and indeed had a special relationship with them. Stutzman had also hired gay employees to work in her shop.

When the gay couple she had known for nearly a decade asked her to make them an arrangement for their wedding, Stutzman explained she could not.

“It was very difficult for me to tell Rob I couldn’t do his wedding,” she says. “I love Rob; he’s very special to me. But because my relationship with Jesus Christ teaches me that marriage is between a man and a woman, I couldn’t do his flowers and create something that was special for him, because it would dishonor Christ.”

Stutzman recommended Rob Ingersoll three other florists that he could contact to service his wedding, and hugged him. Rob and his partner found another florist who agreed to service their wedding.

Unfortunately for Stutzman, Bob Ferguson, Washington state’s Attorney General, filed a lawsuit against her after hearing about the story, saying he wants to “bring about an end to the Defendant’s unlawful conduct, and to make it clear that I will not tolerate discrimination on the basis of sexual orientation.”

Does Stutzman hate gays? Probably not. Did her religious convictions, which include opposition to same-sex marriage, relationships, and intercourse stigmatize these two men over the dozens of times they probably came into her flower shop of the years she’d known them? Again, probably not, as they kept coming to her for nearly a decade.

So why are we unable to admit that this debate is not about discrimination against people, but rather preferring to not materially support a ceremony which violates certain religious convictions?

Could anyone claim that a pro-choice baker who is asked to bake a cake for an anti-abortion rally being held outside a Planned Parenthood clinic is discriminating unfairly when she refuses to supply the cake? Should the ACLU get on her case and force her to service a rally whose message and intents deeply violate her beliefs about female reproductive rights?

Let us also look towards the Azucar Bakery, a Colorado business placed in Stutzman’s opposite position when asked to bake a cake bearing biblical injunctions against homosexuality and sin. Bill Jack asked for two bible-shaped cakes, one with a picture of two grooms holding hands and a large X over it, and one with text stating "Homosexuality is a detestable sin. Leviticus 18:22.”

Marjorie Silva, the bakery owner, refused to make the cake; Jack sued her for discrimination based on his creed. What was the Colorado Civil Rights Division’s verdict?

"The Anti-Defamation League Mountain States Region welcomes the determination of the Colorado Civil Rights Division (CCRD) that there is no probable cause to support a finding that Azucar Bakery treated unequally or denied goods or services to a customer based on the customer’s creed, when the bakery declined to include derogatory language and an image of a same-sex couple on a cake. ADL supports our state's anti-discrimination laws that promote an inclusive and respectful Colorado," said Scott L. Levin, the ADL's regional director.

It goes without saying that gay marriage is a contentious issue; some people fiercely support its legalization on the grounds of granting Americans the same civil rights their heterosexual counterparts enjoy, whereas others oppose it based on historical and social reasons. The debate about its legalization is ongoing; a 2014 Pew study indicates that a full 40% of American still oppose it, with 52% supporting it.

But it is here that we come to the third and most important question, the one which will define what kind of American society we engender for ourselves and leave behind for posterity.

Can we stop thought-policing?

Can we stop demonizing religion? Can we stop trying to censor and punish, what is to some, offensive creed?

In short, will we adhere to the injunction of that foundational document, the Bill of Rights, which says, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech”?

Can same-sex marriage proponents support gay marriage and still respect others’ liberties? Can they be the truly tolerant liberals they claim to be and understand that for some people, marriage is between a man and a woman, and that materially servicing a gay marriage violates that belief? Can we stop equating opposition to gay marriage with racism and homophobia?

The frightening hypocrisy of the Colorado case juxtaposed with the Washington one implies that no, we currently cannot. Some forms of speech, belief and creed are simply being called better than others, and American law is slowly coming to encapsulate and act upon that view.

But the First Amendment is wonderfully content-neutral. Its ingenuity lies not in its ability to legitimize hateful or controversial creed, but in its protection of the individual’s right to express it. In the eyes of the Bill of Rights, one form of speech is no better or more deserving of protection than another.

So when the Ku Klux Klan refused to hand over its list of members to the government in 1993, Grand Dragon Michael Lowe was thrilled that the ACLU would defend him.

He was not, however, expecting his lawyer to be black.

"The Klan says some vile and vicious and nasty and ugly things," Anthony P. Griffin said at the time. "But the Klan has a right to say them. If you ask whether they have a right to organize, to assemble, to free speech, those people we hate have such a right, and we just can't get around that. Because if you take away their rights, you take away my rights also."

What Mr. Griffin so keenly perceived, and what we increasingly miscomprehend, is that when one form of individual expression is protected over another, liberty is not upheld; it is destroyed.

We must do away with the doublespeak of identity politics, which demands we accept the notion that stripping certain individuals of their religious liberties will ensure the rights of other groups. It does not.

Put two and two together: if a black lawyer could uphold the KKK’s personal liberties, can we do the same for Ms. Stutzman’s? Unless you came up with “five,” the answer ought to be clear.