The “Religious Freedom” Case That Wasn't -- Right-Wing Media's Slippery Slope Argument Debunked
Right-wing media have falsely suggested that the civil rights protections in Indiana's “religious freedom” bill force business owners to endorse messages that they share serious ideological disagreements with. But a recently-decided discrimination case in Colorado debunked this argument, differentiating between discrimination on the basis of ideology and discrimination on the basis of membership in a protected class.
On April 2, Indiana Gov. Mike Pence (R) signed an anti-discrimination amendment to his state's controversial Religious Freedom Restoration Act (RFRA) after facing widespread criticism due to the law's potential to authorize anti-LGBT discrimination. To address that danger, the amended law explicitly prohibits individuals and business owners from invoking RFRA to deny services on the basis of sexual orientation or gender identity.
Right-wing media were quick to criticize Pence, arguing that the amendment "gutted" the state's RFRA and claiming that the revision would “force” the devout to violate their religious beliefs by holding them accountable to generally applicable civil rights protections. A number of conservative media outlets like The Wall Street Journal took this argument further, falsely claiming that forcing religious business owners to abide by anti-discrimination laws would also “compel” them to serve customers with “politically unacceptable thoughts”:
For that matter, should a Native American printer be legally compelled to make posters with an Indian mascot that he finds offensive, or an environmentalist contractor to work a shift at a coal-fired power plant? Fining or otherwise coercing any small number of private citizens -- who aren't doing anyone real harm but entertain politically unacceptable thoughts -- is thuggish stuff.
But a recent “religious discrimination” case from Colorado illustrates how this hypothetical betrays a fundamental inability to understand that the RFRA debate was over discrimination against gay people, not gay "thoughts."
On April 4, the Colorado Department of Regulatory Agencies -- a state-run consumer protection commission -- ruled that the owner of a Denver bakery did not discriminate against a Christian customer when she refused to make him two cakes with anti-gay messages on it. According to The Washington Post, bakery owner Marjorie Silva refused to make a cake for a customer who “asked that the cake be decorated with the biblical verses 'God hates sin. Psalm 45:7' and 'Homosexuality is a detestable sin. Leviticus 18:2.'” That customer filed a complaint with the state, claiming that Silva discriminated against him based on his religion -- and lost.
Why? According to right-wing media's fearmongering on the subject, this should have been a slam dunk for the homophobic customer -- the same sort of discrimination against LGBT persons the Indiana RFRA can no longer promote.
Eugene Volokh, a First Amendment scholar and founder of The Washington Post's libertarian Volokh Conspiracy blog, explained why the analogy is flat wrong. Contrary to right-wing media's false equivalence, refusing to serve a customer over a political disagreement isn't the same as discriminating on the basis of religion -- or membership in any other protected class, such as sexual orientation (emphasis added):
[W]hile [the customer] has succeeded in getting publicity for his cause, he doesn't have a legal leg to stand on. Colorado law bans discrimination by a wide range of businesses, but only when the discrimination is based on “disability, race, creed, color, sex, sexual orientation, marital status, national origin, or ancestry.” This means that a store may not specifically refuse to sell cakes to gays, or sell them to (say) Baptists. It may well mean that it may not specifically refuse to sell cakes for use in same-sex marriages, or in Baptist events. It may even mean that it may not specifically refuse to inscribe messages that identify buyers as gay (e.g., “John and Bill's marriage”), or as Baptist (e.g., “Baptist Church Picnic”).
But nothing in the law bans discrimination based on ideology more broadly. A store can refuse to sell to someone because he's a Nazi, or a Communist, or pro-life, or pro-choice, or pro-gay-rights, or anti-gay-rights. A store can likewise refuse to inscribe cakes with Nazi, Communist, pro-life, pro-choice, pro-gay-rights, or anti-gay-rights messages, if it's discriminating based on the ideology of the message, rather than the religiosity of the buyer.
National Review Online also tried equally inapt versions of this claim, wondering “if every business in Indiana must do business with everyone who walks through the door” due to the RFRA amendment, then “Are we prepared to handcuff a feminist photographer who won't take pictures at a strip club?” and “Do we respect a vegan woman's right to choose not to bake a cake for the Indiana Pork Farmers' Man of the Year dinner?” Other right-wing sites invented what they thought were their own slippery slope arguments, with the Daily Caller suggesting that a “Jewish baker might have to make” a cake for a Nazi with a swastika on it, and IJReview claiming that Indiana's RFRA protects “the black owners of a T-shirt business” from having to print KKK imagery.