Ending the Food Fight Between Gay Marriage & Religious Liberty

Here we are again—another food fight between LGBT activists and Christians. Last time it was wedding cakes in Colorado, and now it’s pizza in Indiana. When Indiana’s governor signed his state’s version of the federal Religious Freedom Restoration Act (RFRA) in March, it provoked an immediate outcry from both LGBT activists and the business community. It also left many Christians confused about how to navigate this new cultural battlefield with some—like tiny Memories Pizza in Walkerton, Indiana—getting caught in the crossfire.

Much of the rhetoric around the law has been poor and even intentionally misleading from both sides. To understand the legal background of RFRA laws, I highly recommend listening to Episode 147 of The Phil Vischer Podcast. We invited Phil’s brother, Rob, to discuss the issue. Rob is a Harvard Law School graduate and Dean of the University of St. Thomas Law School in Minneapolis. 

I’m no attorney, but I have been more engaged with these matters in recent years through my writing, speaking, and time with groups on both sides in Washington D.C. Rather than add to the outrage engine of the internet, I want to share a few ideas to guide the thinking and conversations of those committed to loving both God and their neighbors.

1: Christians should never advocate discrimination against their LGBT neighbors.

I’ve been hearing some Christians argue that a business owner should not be forced to serve customers his faith disapproves. This simplistic and misinformed view breaks my heart not only because it reveals a failure to love one’s neighbor, but because it further alienates a culture increasingly suspicious of Christian faith. We are called to love our neighbors including those we disagree with. Therefore, Christians should never seek the legal right to publicly discriminate against anyone because of their race, gender, beliefs, age, or sexual orientation. 

If this ultra-libertarian argument gains support among those feeling threatened by the advance of LGBT rights, it would represent a terrible step backward to the era of segregation. The fight for equal opportunity legislation was waged decades ago, and in many cases the effort was led by Christians. We should celebrate and champion these non-discrimination laws not because we believe the behaviors, beliefs, and values of all people should be equally affirmed, but because we strongly believe all people are created in the image of God and are worthy of dignity. 

This cultural value is an inheritance from Christianity practiced in ages past and all too rare in parts of the world lacking this heritage. Christians should be the very last people to dismantle these laws in the name of “religious liberty.”

2: No one should be forced by the government to participate in rituals that violate their conscience. 

This is where things get tricky and where much of the debate is being waged. The core question seems to be: What constitutes participation in a same-sex wedding? 

Will the government require clergy to marry gay couples as some fear mongering conservative voices suggest? On this, the law is clear—No. The last time someone tried to prosecute a minister for discrimination was in 1985 after a pastor refused to marry an interracial couple in Kansas (State v. Barclay). That suit was laughed out of the Kansas Supreme Court and the prosecutors reprimanded for wasting the court’s time. It is a long-standing rule that non-discrimination statutes do not apply to clergy or churches. No one is going to force your church or pastor to participate in same-sex unions.

What about religious business owners? A Colorado court ruled that baking a cake for a same-sex couple’s wedding was not participating in the ceremony as the Christian baker tried to argue. I agreed with the court but for theological rather than legal reasons even as others used the case as call to cultural arms. Nonetheless, we cannot look at the cake baker ruling as the final answer to the participation question.

For example, the case of the photographer in New Mexico is very different. Photographing a wedding ceremony requires one’s presence at the event and active participation, as does catering, decorating, or performing music. It seems both unconstitutional and unneighborly to force someone to attend and perform in a ritual that violates their beliefs. Should a Muslim florist be required to arrange flowers around a statue of Ganesh at a Hindu wedding in violation of Islam’s strict prohibition against idolatry? Should a Jewish pianist face a lawsuit for refusing to play a march at a skinhead fundraiser? Why then is a Christian photographer fined by the state for declining to attend and photograph a same-sex union?

Unfortunately, the Supreme Court declined to hear the photographer’s case last year, so we still do not have an answer to what constitutes legal “participation” and what does not. Still, I suspect this is an area where broad agreement may still be possible if we appeal to something more than just religion, and that leads to the third proposition…

3: Americans may be divided about religious liberty, but we can find common ground around free speech.

Jordan Lorence, the attorney representing the New Mexico wedding photographer, made a very important distinction in his argument before the court. He recognized that requiring a photographer to create art in conflict with her beliefs was not just a violation of her freedom of religion but also her freedom of expression. This is what is getting lost in the current media feeding frenzy over gay pizzas and Christian wedding cakes.

Framing the conflict as a battle between LGBTs and Christians, or “God v. Gays,” gets all sides fired up, and it clearly identifies who the enemy is depending on one’s point of view. This simple narrative is effective at drawing eyeballs to cable news, clicks on social media, and dollars to interest groups. In other words, there are strong financial and political motivations for focusing this fight narrowly on religion. It’s very acceptable and even chic to be anti-religion today. It’s far less sexy to be anti-free speech (except on some college campuses).

If the media and advocates on both sides presented a narrative about expanding legal protection for LGBTs while maintaining freedom of expression rights for all Americans, the issue becomes much less combustible. It becomes harder to demonize one side or the other, and, therefore, harder to generate attention, outrage, or funding. If a solution is to be found, however, this is exactly what must be done.

Lorence tried to do this in as reported in a recent article in the LA Times. He agreed that no LGBT person should be denied equal accommodation by businesses, restaurants, or hotels, but nondiscrimination statues, he argued, cannot be used by the government to force Americans to create art they disagree with. This isn’t merely about religious liberty. It is a matter of free speech.

In the Colorado cake maker case, the judge ruled the baker’s freedom of speech rights were not violated because the cake he was asked to make did not express support for gay marriage. In other words, the ruling did not say he had to make whatever cake a customer requested. If a customer asks him to bake a rainbow cake with two grooms and icing that says, “Hooray For Gay Marriage,” he retains every legal right to say, “No, I don’t make that kind of cake.” 

The court did say the baker could not refuse to sell the same cake to a same-sex couple that he would make and sell to an opposite-sex couple. Or, put more simply, the baker’s freedom of expression permits him to discriminate when it comes to what cake he makes, but he may not discriminate to whom he will sell the cake. Similarly, the owner of my favorite Mexican restaurant cannot be sued for refusing to make me sushi, but he can for refusing to sell me tacos because I am bald even if he is a devout Hairy Ballerina who believes baldness is a sin. 

We cannot expect cable news or social media to engage this important issue respectfully or carefully, but we who claim the name of Christ owe it to him and our communities to do both. I hope the ideas presented above will help you converse more lovingly and thoughtfully. Maybe together we can begin to shift the debate away from a war with winners and losers, and toward a conversation between neighbors in pursuit of the common good.

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