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Gay Rights and the OTHER First Amendment Right
Unjust discrimination against individuals who identify as LGBT is a real problem. So is eroding religious freedom — but in some cases another First Amendment right may be even more relevant.
By Steven D. Greydanus
Yesterday the Becket Fund for Religious Liberty released a statement announcing that a Christian business owner finally won a case brought against him by gay plaintiffs alleging a civil rights violation:
A Kentucky court championed free speech today, ruling that the government cannot force t-shirt printer Blaine Adamson to create gay-pride t-shirts in violation of his religious beliefs. The court agreed with Becket, top legal scholars, and LGBT business owners, who all stood up for the rights of artists to choose what messages they would promote, without fear of government punishment. Today’s ruling emphasized that “the ‘service’ [the printer] offers is the promotion of messages. The ‘conduct’ [the printer] chose not to promote was pure speech.”
Adamson is the owner of Hands On Originals, a small print shop in Lexington, Kentucky. Adamson regularly employs and serves LGBT individuals, and serves everyone regardless of race, gender, or sexual orientation. He also cares deeply about the messages he promotes. Just as pro-choice printers have declined to print pro-life messages, and LGBT printers have declined to print anti-gay messages, Adamson does not print messages that violate his beliefs. Following common printing industry practice, he only creates messages that align with his views, and has declined to create t-shirts promoting strip clubs, violence, and sexually explicit videos. That’s why LGBT business owners stood up for Mr. Adamson’s right to choose the messages he promotes.
“It doesn’t matter what the speech is — pro-gay, anti-gay, pro-immigration, anti-immigration — the government can’t force you to print it,” said Luke Goodrich, deputy general counsel at Becket, a non-profit religious liberty law firm. “That’s the beauty of free speech: It protects everyone.”
This seems to me an important case that may have implications for the wedding-industry wars.
So far as I know, Christian wedding industry professionals — photographers, cake decorators and caterers — have always lost in court for declining to provide services to same-sex weddings.
While I don’t know a lot about the legal reasoning in those cases, whenever I see Christians discussing such cases the issue seems to be framed as a question of the First Amendment right of religious freedom. I wonder this isn’t a mistake.
As the Hands On Originals T-shirt print shop’s successful defense illustrates, religious freedom may the wrong First Amendment right — at least in the case of photographers and cake decorators. (Caterers are probably out of luck, at least as regards this line of thought.)
The strongest First Amendment defense for wedding photographers and cake decorators, I suspect, is not religious freedom, but freedom of speech.
Wedding photography is a service, but photography is also patently an art form, a form of communication. For the purposes of First Amendment constitutional law, it is a form of speech — and speech, in First Amendment constitutional law, with very few exceptions, can be neither suppressed nor compelled.
An important caveat: Freedom of speech does not negate the principles of public accommodation and antidiscrimination law, which I support. I do not take the laissez-faire libertarian view that any business should have the right to refuse to transact with any potential customer or employee for any reason.
For instance, I don’t believe that restauranteurs who are racists should have the right to refuse service to patrons of color — or to relegate them to a separate counter, for instance. Nor do I support Christian business owners (or Muslims or Jews) with traditional beliefs about sexual morality refusing to serve individuals who identify as LBGT.
In saying this, I’m going somewhat beyond federal antidiscrimination law, which prohibits discrimination against protected groups defined by race, color, religion, national origin, and disability, but does not protect individuals singled out for their sex or sexual orientation. (Discrimination based on sex and sexual orientation is prohibited in many areas at the state and local level.)
When it comes to discrimination and bigotry based on sexual orientation, both sides typically claim too much and concede too little. Christians should be willing to recognize and concede that while terms like “hate” and “homophobia” are overused to stigmatize all disapproval of homosexual acts, hatred and unjust hostility toward LBGT-identifying individuals is a real and important problem — a problem too often found among individuals wrapping themselves in the mantle of traditional morality and traditional marriage.
To adhere to and to profess traditional Christian sexual morality, including the belief that homosexual acts are morally wrong, is not hate or bigotry, but hatred and bigotry are very much alive and well among those who profess to adhere to traditional Christian sexual morality.
The Catholic faith tells us that homosexual attraction and homosexual acts are intrinsically disordered, but it also tells us that same-sex attracted persons “must be accepted with respect, compassion, and sensitivity. Every sign of unjust discrimination in their regard should be avoided” (Catechism of the Catholic Church, 2358).
The Catechism wouldn’t bother to say this unless such individuals had often not been accepted with respect, compassion and sensitivity and had often been treated with unjust discrimination.
When Christians meet with hostility and anger from LBGT individuals and their defenders, therefore, it behooves us to understand that behind that hostility and anger may often be painful experiences of mistreatment, rejection, stigma, ostracism and more. When this occurs in the Church, and still more when it involves the clergy, it can be even more devastating.
In view of this difficult reality, I believe Christians have a particular duty to oppose homophobia and gay-bashing in their own ranks and to stand up for dignity and respect for all human beings, including and even especially individuals who identify as LBGT.
We should also recognize that it is understandable for the state to take an interest in protecting LBGT individuals from unjust discrimination — for holding, for instance, that people’s sexual self-identification or lifestyle, along with their race, color, religion and so on, is not grounds for refusing to serve them a meal at a restaurant, or for denying them other services at public accommodations.
Among other things, this would mean that a store that sells T-shirts cannot (and I would add should not) refuse to sell T-shirts to anyone because of their race or ethnicity, religion, sex, gender identification or lifestyle. A racist cannot refuse to sell to people of color, an atheist or a gay activist cannot refuse to sell to conservative Christians, and a Christian cannot refuse to sell to sell to atheists or gays.
By the same token, a T-shirt printer who printed a particular design or message for one customer should be willing to print the same design or message for a customer whose lifestyle he disapproves of.
In the case reported by the Becket Fund, though, another principle comes into play: free speech.
The Hands On Originals case highlights that not every kind of service in the public square is equivalent to buying a meal at a restaurant. Some types of services involve a form of artistic expression or speech that is protected under the First Amendment — and these protections protect us all.
Free speech means a pro-choice graphic designer or commercial artist cannot be forced to print pro-life materials, nor can a pro-life graphic designer or commercial artist be forced to print pro-choice materials. A gay Web developer cannot be forced to create a website for a conservative Christian group, nor can a Christian Web developer be forced to create a website for a gay group.
This is a principle well understood and appreciated by the LGBT business owners cited in the Becket Fund press release, who supported Hands On Original’s right to refuse to print pro-gay materials. All sides and all parties to this discussion should recognize the wisdom of Thomas More’s line in A Man For All Seasons about giving even the Devil benefit of law “for my own safety’s sake.” (N.b. Like More, I’m merely illustrating a principle, not comparing anyone to the Devil!)
Because photography is patently a form of artistic expression, I’m troubled that the courts not so far found that a wedding photographer, or any other wedding industry professional other than clergy, has the right to decline to provide services for a same-sex wedding. Could this be because such cases have generally been predicated on religious freedom rather than free speech? I don’t know, but I wonder.
I believe the principle that speech should be neither repressed nor compelled is so important that I would even defend the right of a white supremacist photographer not to photograph an interracial wedding. His views are despicable — so despicable that I would want nothing to do with patronizing such a photographer, whether or not he had a problem with me — but photography is speech, and speech should not be compelled.
The same considerations seem to me to apply to cake decorators, at least where the cake involves any kind of messaging, even figures of two grooms or two brides on the top. I’m not talking about refusing to sell a cake to an LGBT person or couple, but to decorating the cake with a specific message.
I don’t believe this principle should be controversial, although it is. In 2015 no less patently liberal and pro-LGBT a celebrity than Patrick Stewart offered a thoughtful defense for a baker who was sued for declining to put pro-gay messaging on a cake. The backlash was intense, obliging Stewart to clarify his remarks — though he didn’t back down on his opinion.
This line of thought would not, however, exempt caterers from catering the reception for a same-sex wedding. That would fall into the same sphere as a restaurant selling someone a meal, and would be regulated by applicable antidiscrimination laws.
It’s no secret that free speech itself is under attack in many quarters of American life, notably in academia. The Hands On Originals case seems to me an important affirmation of a foundational principle that protects us all and is worth defending.
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