• Gay Marriage vs. Religious Freedom: A proposed solution (part 3)

Gay Marriage vs. Religious Freedom: A proposed solution (part 3)

Click HERE for part 1
Click HERE for part 2

So, having noted in our previous two posts that in a pluralistic society which values religious/speech freedom as well as civil rights against undue discrimination, and having suggested the foundational principle of distinguishing between “High Personal Involvement” and “Low Personal Involvement” as a guide for when such rights come into conflict (as they do in the current LGBT Civil Rights vs. Religious Freedom debate in our culture), we are now in a better position to suggest a practical solution to the seeming impasse between the two sides.

It involves moving the debate away from nebulous and overly-broad concepts of “civil rights” and “religious freedom” altogether! Such concepts are useful for firing up one’s particular “side” emotionally and getting people to vote based on fear or moral conviction…but not much else when it comes to the question of LGBT civil rights and traditional marriage proponents’ religious freedoms. Appealing to these two terms (“civil rights” and “freedom”) over and against one another in the gay marriage debate is like trying to do surgery with a sledge hammer.

Instead, we would suggest that when it comes to government legislation on this issue, the focus should be moved to the nature of the actual goods/services being sought by the consumer.

What we mean by this is simple:

  • Any good or service which inherently consists of a speech-act, religious message, or creative artistry (for the sake of ease, we will refer to these types of goods/services as “Communicative” ones) should be protected under the First Amendment and exempt from civil rights legislation, should a business owner choose to discriminate in how they make it available to consumers.
  • Any good or service which is not inherently Communicative, and is thus speech-neutral in and of itself, would fall under Civil Rights legislative protection, and business owners would not be free to discriminate in regards to it.

So, for example, Communicative goods or services would include things like:

  • religious goods or services
  • artistic creations (things made for the purpose of aesthetics or commemoration)
  • photography
  • celebratory events
  • fundraisers
  • protests
  • visual arts
  • graphic design
  • writing
  • or anything else which involves a person’s creative faculty, speech, or personal involvement.

Non-Communicative goods or services would be basically everything that does not intrinsically involve communicating a message or participating in celebratory, religious, or ethical events. It would include things like:

  • Regular food (as opposed to celebratory culinary creations or religious meals such as Eucharist/wine/Matzoh/etc.)
  • Healthcare
  • Regular housing (as opposed to religious communes, retreat centers, etc.)
  • utilities (electricity, water, gas, communications, etc.)
  • Regular clothing (as opposed to religious vestments, artistic fashion, celebratory garb, etc.)
  • Maintenance goods and services (mechanical, home, lawn, agricultural, technological, etc.)
  • shipping and transport
  • self-service technologies (printing, graphic design, web design, etc.)
  • raw materials
  • Internet access and web-hosting
  • or anything else that does not inherently communicate a message or involve a person’s creative faculty or personal involvement in communicating a message.

Non-Communicative goods could even include items which may have been previously created as Communicative, but which are now for public sale in a storefront marketplace setting. For example, artwork or decorative pieces sold generically on the shelves of a bakery or photography studio.

Okay, but what would this look like in actual practice?

Well, consider a Christian or Muslim bakery which does not make wedding cakes for same-sex weddings. Such businesses would not be required to create a cake or any other decorative item specifically for the celebration of a type of marriage that they have strong religious objection to. This is because the creation of such a celebratory/decorative cake (especially if it contained writing such as “Congratulations Sue and Eileen!” or any other message for that specific same-sex wedding) would be a Communicative service. The cake would serve no other purpose than to celebrate and commemorate a custom that the baker finds objectionable.

However, the Christian or Muslim baker who did not support same-sex marriage would be required to sell any cake or item on their shelves to anyone who walked in their door or ordered from their website. This is because the sale of something already created and available for public purchase is NOT an inherently Communicative service. Thus they would not be allowed to discriminate against LGBT (or any other) persons themselves, regardless of what they believed about the person’s lifestyle or actions. This protects the civil rights of the LGBT (and any other) community, while also upholding the religious/speech freedoms of the businessowner. No one side’s view would be able to totally trump the other’s.

Likewise, to use another example from recent news, the mechanic in Indiana who said he would not work on the cars of any LGBT persons would NOT be protected by religious freedom claims because fixing an automobile is not inherently Communicative. It is speech-neutral by nature and involves no personal involvement in something of a Communicative or celebratory nature.  The same would apply for any doctor who refused to treat patients because of their sexual orientation or parental situation. Such people would not be able to hide behind “religious freedom” laws because their goods/services were not of a Communicative (and thus protected) nature.

So, a photographer would be free to refuse to shoot a same-sex wedding for whatever their personal reasons (because photography, as art, is inherently Communicative and because weddings, as cultural celebrations, are inherently Communicative). But a photography store could not refuse to rent or sell equipment to someone who wanted to shoot a same-sex wedding (because renting or selling photography equipment is not inherently Communicative). There are many more examples that could be used to illustrate this basic distinction, and no doubt courts would probably have to weigh in on those that were more ambiguous. But the overall distinction is fairly self-explanatory and quite reasonable.

This distinction between Communicative and non-Communicative goods and services would also alleviate the genuine concerns LGBT advocates have about widespread discrimination taking place in areas where traditional views on sexual relationships are prevalent. Restaurants, gas stations and any other public business would not be able to refuse public service to LGBT couples. Their housing rights would be protected under Civil Rights legislation. So the fear of a return to Jim Crow-like conditions where gay families were turned away from hotels or not allowed to eat in restaurants or use the same public facilities as heterosexuals would not take place. The core goal of Civil Rights legislation—widespread discrimination against a class of society—would be upheld completely.

However, the religious freedom and First Amendment rights of those business owners who reject the morality of LGBT sexual ethics would also be protected because they would not be legally required to advocate, celebrate or condone through their Communicative goods or services something they strongly object to. A family bakery wouldn’t lose their life savings simply because they did not want to create a decorative cake to celebrate a type of wedding they do not agree with. They could simply refer the couple to another of the MANY bakeries in the area which would gladly accept their business and allow community to decide whether or not they want to continue doing business with the bakery that refused to create the decoration. This would uphold the genuine rights of everyone involved to a degree that is beyond reasonable.

Of course there would undoubtedly be cases in which the lines between Communicative and non-Communicative goods or services might be somewhat blurry. But this is a regular feature many types of law involving intellectual property, copyright, claims of libel or defamation…so it is not unreasonable to suggest that courts could rule on a case-by-case basis if the legal conceptual framework of Communicative vs. non-Communicative is first put in place.

And such a distinction is not beyond the ability of our courts to determine to a fair degree if the foundational principle of High/Low Personal Involvement is used to guide them in exceptional cases.

We suggest that this simple distinction between goods or services which are Communicative and those which are not, if it were used in crafting legislation, would eliminate the VAST majority of conflicts between LGBT and Traditionalist advocates…as well as many other cases where religious freedom and civil rights rub up against one another.

It would maintain the most rights for the most people, and would allow us as a pluralistic society to coexist legally with those who do not share our particular ethics, religious convictions or philosophical worldview.

Of course it would not satisfy those on both sides who seek full capitulation of everyone else to their way of thinking. Such individuals would continue to demonize those with whom they disagree as either “bigots” or “perverts” (or any number of similar slurs often found in current rhetoric).

But from a legal perspective, the vast majority of Americans who reside somewhere between the extremes of the culture warriors would have both their Civil Rights as well as their Religious Freedoms protected from coercion and abuse.

In other words, it would uphold the most good for the most people…which should be the goal of all good legislation, should it not?


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  1. Hello! I finally took the time to read the entire proposal, and, as you may well imagine, I have a few questions and a counter-proposal loosely based on yours.

    First, why invent new categories of high and low personal involvement? Second, does this proposal not still in some circumstances force gays and lesbians to live as second-class citizens?

    I know from personal experience that weddings, in general, are not easy propositions. You have to round up a caterer, a place to hold the wedding, a place for the reception, a designer, and you have to get a whole massive host of other ducks in a row.

    Now imagine that, while under that high personal stress, you’re on the internet or walking around town and FINALLY find a bakery that you like, and you walk in the door. You converse with the person behind the counter. You get planning and sorting your cake. They take your order, they get the size and number of pieces and color and design and God knows what else bakers do when they get information about the cake. A line begins to form behind you, perhaps.

    Then the bakery clerk asks the fatal question: What names go on the cake?

    Your name and your partner’s name are both rather unambiguously same-gendered. You provide the clerk with your names. The clerk writes your name, then, as he’s writing your partner’s, looks up at you with that dreaded expression, a mix of discomfort and self-righteousness, and says, “I’m sorry, we don’t serve your kind. There’s a lovely shop down the street that does, though.”

    Your heart drops into the pit of your stomach. You become painfully aware that the religious iconage around the shop was not merely to be welcoming to people of faith, but signs that the shop was RUN by a person of faith – and that a core tenet of their faith was that they could not bake cakes for people like you.

    Your shoulders drop. Your face turns red. You look hopelessly at the beautiful cakes, the likes of which you one day hoped to have for your celebration but now know are completely beyond your reach because of the faith – you would call it prejudice – of the person who owns the store. You do the walk of shame past the other customers, all of whom are staring intently at their shoelaces. One looks up and mumbles an apology, but you don’t want their pity. You want your damn cake.

    Meanwhile, a few doors down, another bakery with a painfully-Christian name is opening. This bakery’s owner is gay-affirming, but you, having just had a negative experience with another Christian bakery owner, you decide to give them a pass. Also, you decide based on your experience with the first bakery, which put you through a shaming experience, that you never want anything to do with Christianity.


    But suppose if they discriminated they were required to include signs that say “WE DISCRIMINATE” or some other yellow-star-type treatment that clearly warns gays and lesbians that this shop does not welcome their kind.

    I cannot imagine that, as a bakery owner, you would like this situation much either, because perhaps in more liberal areas, being a Christian bakery owner and having to put up signs that say WE DISCRIMINATE would quickly put you out of business. (Perhaps).

    Further, imagine the shame of wandering the streets in the Bible belt looking for a non-discriminating bakery – and photographer, and whatever else – to do your wedding?


    Having thusly imagined empathetic situations, I have a counter-proposal:

    Treat businesses like businesses and people like people.

    There are no Christian businesses. There are no Christian bakeries. There are no Christian photography services.

    There are businesses that are owned by Christians. There are bakeries that are owned by Christians. There are photography services that are run by Christians.

    Businesses are non-human entities, and non-human entities *cannot* have faith or religion of any kind.

    That being the case, my proposition:

    YOU as a person cannot be forced to bake a cake for gay couples. That is your right as a citizen of the United States – a right to freely exercise your religious liberty.

    But you as a business owner CAN be forced not to discriminate. You don’t have to bake the cake personally, or decorate it personally. You can subcontract that work out so that you are not personally doing the high-involvement work.

    If you don’t want to personally bake and decorate a cake, ducky. You don’t have to. But you are running a business so that business is (or at least should be) obligated to provide a cake to anyone who walks in the door. Nobody gets treated as a second-class citizen. Not even you.

    You have a photography service but you don’t serve gays and lesbians? Fine. You find out in advance if the couple is gay or straight and if they’re gay, YOU subcontract the work out. You’re a designer and you don’t want to design gay save-the-dates? YOU subcontract that work out.

    Ultimately, if you are a religious person who owns a business and you personally don’t want to serve certain members of society because it goes against your religion, the burden or hardship of your religious commitment to discrimination should be upon you, not upon members of society unaffiliated with your religion.

    We all have freedom to freely exercise our religion in America and to experience the consequences of our free exercise, but we do *not* have the freedom to impose the consequences of our religious exercise on others who do not share it.


    Well, that’s my proposition. Cheers!


    David M Schell Reply:

    Edit: The Bible belt paragraph should have this addendum: Image the shame of walking from bakery to bakery and finding signs in every window that say “WE DISCRIMINATE,” and knowing the sign is to keep people like you from even considering patronizing them.


    Comment by David M Schell on July 2, 2015 at 12:34 pm

  2. Daniel

    I think this is a helpful distinction, and not one that would be overly difficult for courts to make. Over time, certain rules will be set by precedent and that’s a better solution than trying to precisely define “communicative” from the outset.

    Your proposal recognizes that when people go to work they are still people, every bit as much as the person on the other side of the counter. You do not become a “business” the moment you push a time clock, stripped of all beliefs and values you lived by during your commute to work. This applies to religious and secular alike, and I think your proposal takes an even-handed approach to this.

    I do have a question about how this would scale. Suppose Hobby Lobby has a t-shirt printing service (maybe they do, I don’t know). Can they pass a corporate policy forbidding LGBT-friendly T-shirts, even if the person actually creating the shirt or the manager of the store where the shirt is created have no objections. Once it moves further up the ladder, it’s harder for me to see how the communicative act is being personally carried out by the entity requesting the freedom.

    David, above, is sticking to the script, which leads me to believe that he has not read the post. If a bakery says, “we don’t serve your kind here,” then the customer sues. The way I read your proposal, customer wins. An LGBT customer does not have to look longingly at the beautiful cakes on the shelf. He can buy them, and sue if refused. What he can’t do is demand a cake that communicates a message that the producer does not want to communicate. Am I missing something?

    It’s helpful to imagine how this swings both ways. An atheist photographer would have every right to refuse baptisms or religious weddings, for example. Legally, I’d be fine with that.

    We should acknowledge that there may be some inconvenience and perhaps embarrassment that results from being refused service for a communicative act, but I do not see how this harm outweighs the harm to the provider for being forced to violate principles and perhaps lose their livelihood.


    David M Schell Reply:

    I actually did read the post – all three in the series in fact. I initially thought of going with “we don’t make wedding cakes with messages celebrating same-sex unions,” but ultimately went with “we don’t serve your kind” because they the service they provide is making wedding cakes celebrating unions, and the primary way to for a bakery to serve gays about to get married and seeking a wedding cake is to make a wedding cake celebrating a same-sex union.

    Yes, they could probably buy a generic wedding cake, and yes, gays could buy anything else there, but in this particular respect and for this product, “we don’t serve your kind here” is ultimately what it amounts to.


    jm Reply:

    I disagree, David. The fact that they WOULD have to serve non-communicative goods and services negates the “we don’t serve your kind here” analogy you’re trying to make. In reality, it wouldn’t be “we don’t serve your kind here”…but rather it would be “we don’t express your ideas communicatively here.”

    HUGE difference. (and one that anyone who values the concept of personal freedom and the ability to express dissent should always want to uphold in a pluralist society.) Just switch the situation around some to see how important it is. An LGBT-owned bakery should absolutely have the right to refuse to create decorative displays or cater a fundraiser for Westboro Baptist or the Republican Convention. That wouldn’t be a case of “we don’t serve your kind here” (as you claim), rather it would be “we won’t communicate your views or participate in your cause”…and that should be entirely acceptable. The views/events/beliefs in question are entirely irrelevant in this discussion. That is the point I believe your response fails to recognize, due to the emotional investment you have on this issue in wanting to combat what you see as bigotry…but what others do not.


    Owen Reply:

    I know I am late to this discussion, but I will agree with JM here: the analogy of “we don’t serve your kind here” is wrong. I would even say it is a distortion. Rather, it is to say “I am uncomfortable participating in the message you are sending.” It is acknowledge the personhood of the employee/worker, and not just the customer. IT isn’t any categorical rejection of a group of people; it is a narrow exception under particular circumstances. A “we don’t serve your kind here” is a categorical rejection of a people group, “we don’t participate in that sort of activity” is defined not by the people group, but the activity or the message itself being conveyed. Because another person’s identity may be connected to the activity/message doesn’t mean exception to service is a rejection of the people based on that identity.

    In short, “we don’t serve your kind” would mean we reject any and all service to you because of some trait you have. That is NOT what this proposal is at all; it is the very opposite. It is a narrow exception based upon a) message/content and b) personal involvement.


    Comment by Daniel on July 2, 2015 at 5:48 pm

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