Let Them Eat Cake

At the moment the chattering classes are all talking about cakes, and so far as I can tell none of them are this fun.

No, instead, everyone has to have an opinion about whether an Indiana state version of the Religious Freedom Restoration Act (RFRA) will make it impossible for gay couples to hire a florist or cake-maker for their weddings.

It doesn't help that there has been a massive amount of misinformation about how RFRAs work going around. The progressive talking point is that the law is a license to discriminate. This is patently untrue. What the law does say is that in some case where a person is violating a law for a reason which that person says is a matter of religious conscience (and where the court finds that there is in fact a real religious belief which is being substantially burdened by the law) the government has to show that it has a compelling interest in the law in question being applied in the situation in question, and can't achieve the same end by some other means. So first of, the RFRA does not mean that you get to do anything you say your religious beliefs require without legal penalty, it just says that the government must weigh your beliefs against its own goals with the law in question and see if there's a way to satisfy both.

This article provides some examples of cases won (and lost) under the federal RFRA and similar laws which exist in twenty other states in addition to Indiana. One example:

After being baptized in the Sikh faith, Kawal Tagore began carrying a kirpan, “an emblem resembling a small knife with a blunt, curved blade” that reminds Sikhs of their commitment to justice. It’s one of five articles of faith baptized Sikhs are supposed to carry.

She was told to go home from her job with the IRS in a federal building in Houston and told not to return. The building allowed scissors, knives, box cutters and other items with far sharper blades than her kirpan, but they wouldn’t let her carry her religiously required emblem. After working from home for nine months, she was fired.

She sought protection under the Religious Freedom Restoration Act and on November 4, 2014, the government agreed to settle the case.

This letter from a group of law professors concerning the Indiana law also provides some interesting context, in particular noting as an example of the sort of balance that the law is designed to encourage that the little discussed finding (because it satisfied the partisans on neither side) in the Hobby Lobby case is that the federal RFRA protected Hobby Lobby from having to provide contraceptive coverage to their female employees precisely because the employer could be exempted without affecting their female employees' access to contraception.

The ways in which the Indiana law differs from other versions of the RFRA is that it explicitly covers corporate persons (some courts have applied existing RFRAs to companies, others haven't) and that it allows the people to appeal to the RFRA in cases in which the government is not a litigant (a dispute between two private parties). However, since the RFRA only requires the government to see if it can achieve its goals in a case (such as enforcing an anti-discrimination law) while still respecting the religious views of the person in question. Since it's clearly impossible for a government to enforce an anti-discrimination law without... punishing people for discrimination, it's a pretty safe bet that the RFRA will not be successfully appealed to in such cases. (And indeed, though people have tried, no one has won relief from an anti-discrimination law by citing an RFRA.)

So while people have been working themselves up into tizzies of moral quandry over whether various people should be able to deny various others cakes of varying descriptions, everyone is having a proxy fight here.

Clearly a Violation of Religious Conscience

At it happens, Indiana does not outlaw discrimination based on sexual orientation, but if they did the existence of the RFRA would not provide a defense for some baker unwilling to bake a cake for a same sex wedding (or some person with literary taste unwilling to bake a Twilight cake.)

Why the fuss?

I'm fairly ready to spread blame around. The progressives require an enemy in their constant battle against the forces of evil and repression. The conservatives would also like to mobilize their base by pretending to be fighting back against the tide of gay marriage, even if they're really not. Both sides are thus served by pretending to be fighting some big fight that they're really not.

And, in a sense, the fight we're pretending this law is about is the one that people are really interested in. Ross Douthat has a post up asking critics of Indiana's RFRA how far they will be willing to go. It's a question worth asking, though I think it's the rare progressive who'd be willing (or indeed able) to answer the questions honestly. This isn't because progressives are evil and deceptive, it's because the cultural consensus has been moving incredibly quickly on this issue and people's demands have been moving as they go along. As Douthat notes:

But it is my very strong impression that if a religious conservative (or anyone on the right) had said, back in 2004 or even into President Obama’s first term, that they accepted that marriage should be redefined nationwide to include same-sex couples, that they further accepted that this would happen swiftly through the courts rather than state-by-state and legislatively, and that all they asked of liberals was that this redefinition proceed in a way that allowed people like Barronelle Stutzman some wiggle room about whether their businesses or facilities had to be involved in the wedding ceremonies themselves — with the mechanism for opting out being something like the (then-still-bipartisan) RFRA model – this would have been treated as a very reasonable compromise proposal by a lot of people on the center-left, gay as well as straight. I cannot prove this absolutely, and I concede that there are lots of people on the left who wouldn’t have liked the deal. But the world of liberal opinion is a pretty familiar one to me, the world of the past isn’t that far past, and I think my assessment is basically correct.

Today, though, as I said above, I think the consensus center-left position has basically shifted toward the argument offered by Garrett Epps for The Atlantic: It doesn’t matter if Stutzman or any other wedding vendor is a nice person with sincere religious beliefs, and it doesn’t matter if she or they would provide her services to gay clients in any other context; her religious anxiety about decorating a wedding chapel for a same-sex couple is no different from the objection to integration of a Southern store-owner whose preacher taught him the races should be separate, and needs to be dismissed with extreme prejudice lest anti-gay discrimination flourish and spread.

For as long as the tide of power and opinion continue to flow in the direction of making sexual preferences and freedom one of societies few sacred values (trumping older American freedoms such as freedom of religion and freedom of the press), I would expect to see things that were previously unimaginable become the commonly accepted elite and center-left cultural positions.

Myself, I have no idea how far or how long that will go. And so while I don't necessarily know that I would share the scruples of the photographers or cake makers who have run afoul of the gay marriage freight train thus far, if there were a way to protect their consciences I would absolutely support it. Not just because I think they're the ones with the right moral beliefs in terms of same sex marriage, and not just because I in general like the kind of pluralism that tries to let most people live according to their beliefs, but also because it's been made pretty clear that even if you are quiet about your beliefs to the point of near invisibility they may come for you anyway. And I could certainly see that happening to me too some day.

It's not impossible to imagine some modern American equivalent of the Act of Supremacy and the Treason Act that naturally went with it: Sure, you may believe whatever you want in the quiet confines of your head, but if you do not publicly affirm that you agree with the secular American pieties about marriage, you become ineligable for a host of jobs, benefits, and rights. And, of course, like the Elizabethan version, you'd have those who found some way to basically hold the dissenting views while making proper public show of agreeing with the consensus of the powerful. And there would be those who would take a principled stand and receive their marginalization as a result. In our consumer society, beheadings are out of fashion, but just exile people from the jobs people care about.

Perhaps this can evolve to some equivalent of the medieval Jewish codes, which forbade Jews from participating in many fields, pushing them into what at the time were seen as pariah roles like banking. What are the acceptable jobs for traditional Christians in the brave new world? Obviously not flower arranging, cake decorating, or running software companies. A randomly assorted set of jobs, but I'm sure someone would be happy to fill in many others.

Do I expect all this? I really don't know. Dystopias tend to be based on a "if this goes on" projection of certain aspects of our own time. But of course, "this" never goes on in simplistic fashion. And history is much more a pendulum than a highway. There is no moral arc to history, getting better and better over time. Things swing one way, then swing another. Who knows how much further we have to go on the current swing, or where the wandering pendulum of culture will swing next.