Posted on 12/09/2022 8:29:51 AM PST by SeekAndFind
This past Monday, the United States Supreme Court heard oral arguments in the 303 Creative v. Elenis religious liberty case.
This case involves basic and fundamental First Amendment religious freedom and free speech issues. The basic facts of the case are simple, but profound. Lori Smith is the proprietor of 303 Creative. Ms. Smith constructs websites using her God-given creative talents. She has concentrated on projects about which she cares deeply, such as children and veterans with disabilities and animal rights and animal shelters.
Ms. Smith decided to expand her business by branching out and creating websites for weddings. As a deeply committed Evangelical Christian, she believed that God created marriage only between one man and one woman. As such, she declined to create a website for a gay couple’s wedding. Let it be known that Ms. Smith does serve LGBTQ customers for websites that do not violate her religious convictions.
The question at issue in the 303 Creative v. Elenis case is really quite simple: Should an American citizen be compelled to violate their conscience and create speech advocating that which their find morally abhorrent?
The state of Colorado says yes. The lower courts have said yes. The question now is what will the Supreme Court say. In a previous case in 2018, the Supreme Court ruled in favor of Jack Phillips, a Colorado baker who had declined to bake and decorate a cake celebrating a same-sex wedding (Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission). That case, however, was decided on very narrow lines (that Colorado’s Civil Rights Commission had shown prejudice and hostility toward Phillips’ religious convictions).
It appears from the Supreme Court’s questions during oral arguments that they will decide 303 Creative on substantive issues. This is indeed a free speech and religious freedom case.
Emotions are high and the rhetoric has been ratcheted up to hypersonic levels. By far the major reason is the legal philosophy dominant currently in American jurisprudence and in the LGBT community.
This philosophy has been clearly articulated by Chai Feldblum, an Obama appointee to the U.S. Equal Employment Opportunity Commission and professor of law at the Georgetown University Law Center. In her article, “Moral Conflict and Liberty: Gay Rights and Religion,” published in the Brooklyn Law Review, 2006 and Georgetown Law Faculty Publications, January 2010.
Dr. Feldblum argues that in conflicts between the rights of the LGBT community and people of sincere religious convictions, “society should come down on the side of protecting the liberty of LGBT people.” She believes that in such conflicts it is a “zero-sum” game in which one side must always surrender their rights to the other.
This mindset guarantees such conflicts are elevated to a fever pitch with a belief that there will always be winners and losers.
What would happen if this zero-sum game assumption was not true? Back in 2014, I penned a column for TheChristian Post entitled, “Gay Marriage and Religious Freedom: A Modest Proposal.”
In that column, I challenged Feldblum’s “zero-sum” option and cited Constitutional law scholar Michael McConnell who argues that in such cases the goal should be to “extend respect to both sides…much as we treat atheism and faith as worthy of respect” and define such respect as “the civil toleration we extend to fellow citizens and fellow human beings, even when we disagree with their views.”
I believe McConnell’s “respect” and “civil toleration” are far more noble goals than a zero-sum game where religious rights are always diminished. The best name for this alternative is “pluralism.”
Imagine my delight and surprise when I opened my copy of TheNew York Times (yes, I do subscribe as a form of opposition research) this past Monday and found a column by Tish Harrison Warren, "When Gay and Religious Freedoms Clash."
The author, a priest in the Anglican Church of North America (as opposed to the Episcopal Church), basically made the very same argument in an eloquent and persuasive fashion.
The Rev. Warren asks the question of how committed Americans are to true pluralism as a national societal value. True pluralism is “a commitment to form a society where individuals and groups who hold profoundly different and mutually opposed beliefs are welcome at the table of public life.”
This column is so good, frankly, I am surprised The New York Times published it. Rev. Warren points out that “Millions of Americans have irreconcilable views of sex and marriage and this is unlikely to change anytime soon.” Warren also makes the critical point that the analogy between racism and anti-gay views is disanalogous.
As she notes, people of religious faith’s objections to the LGBT value system are rooted in the foundational teachings of various religions including Christianity and a majority of Jewish and Muslim communities around the world. Conversely, racism has always been antithetical to Holy Scripture and when used by Christians historically, it has been foisted falsely upon Scripture.
At the same time, Warren also pointed out that the Supreme Court has ratified gay couples to marry and a majority of Americans support LGBT rights.
It would appear that this is a recipe for division, strife, and rancor. Warren asked the question, is such strife doomed to commence a societal “war of all against all”?
The answer both Warren and I would agree is a resounding "no." Instead, “We must find ways to protect the civil rights of gay people while allowing religious people who adhere to historic teachings on sex and marriage to freely practice their faith.” (Warren)
As an Evangelical Christian of Baptist convictions, I oppose changing God’s definition of marriage to include same-sex unions. Such a redefinition of marriage goes far beyond consensual behavior between two adults of the same gender. It has huge implications, including its impact on society, particularly its impact on children.
Even though it appears at present that the American public is increasingly coming to a different conclusion, does that mean there are to be no legal protections for those people of faith whose religious convictions are, and will remain, at odds with the current cultural zeitgeist? Are such people (millions of American citizens who continue to hold the moral and sexual views that have dominated the Christian faith for two millennia), now to be coerced by the potential punishments of prison, fines, or going out of business for refusing to participate in, or promote, ceremonies (often religious) that they find unconscionable?
Historically, pluralism has been one of America’s highest and most noble ideals. The unofficial motto of such sentiments might as well be, “I disagree with everything you say, and I defend to the death your right to say it!”
While protecting LGBT rights, our society’s goal should remain one of achieving a society where the rights of all are protected.
For example, we allow Islamic truck drivers not to be required to transport distilled spirits. Are we now to force a Black restaurant owner to cater an initiation ceremony for the Sons of Confederate Veterans or to bake a cake with the Confederate “stars and bars” flag on it, a flag that symbolizes the enslavement and subjugation of their ancestors? Of course not.
Just so, people who believe same-sex marriage is a sin against God should be free without legal penalties, to decline to provide their creative abilities to celebrate that which they find morally abhorrent. This is especially the case when it is realized that LGBT people will be denied no service they desire, as there are multitudes of Americans prepared to happily provide them with whatever services they desire.
Surely we can find a way to follow Dr. McConnell’s path of tolerance and civility that protects the deeply held religious convictions of American citizens from being coerced in matters of conscience. Why would the LGBT community want to coerce and trample the religious convictions of their fellow Americans? Such coercion will not lead to greater affirmation of same-sex marriage, but only greater resentment, backlash, and incivility.
Surely, we can summon what President Lincoln called in his first inaugural address “the better angels of our nature” to do better than that.
May we all resolve to seek greater civility, tolerance, and respect.
Dr. Richard Land, BA (Princeton, magna cum laude); D.Phil. (Oxford); Th.M (New Orleans Seminary). Dr. Land served as President of Southern Evangelical Seminary from July 2013 until July 2021. Upon his retirement, he was honored as President Emeritus and he continues to serve as an Adjunct Professor of Theology & Ethics. Dr. Land previously served as President of the Southern Baptist Convention's Ethics & Religious Liberty Commission (1988-2013) where he was also honored as President Emeritus upon his retirement. Dr. Land has also served as an Executive Editor and columnist for The Christian Post since 2011.
Dr. Land explores many timely and critical topics in his daily radio feature, “Bringing Every Thought Captive,” and in his weekly column for CP.
The alphabet mafia better enjoy their power while they can, because their eternal destinations won’t be so pleasurable, if you know what I mean.
They believe in a zero sum game of all or nothing.
When they have the power, they get all and we get nothing.
Like the jihadist Muslims, when the perverts get critical mass, they will not be civil. They will not agree to disagree. It is the war of all against all because they would have it be so.
Right on.
“When they have the power, they get all and we get nothing.”
What people of the left don’t realize is the definition of “all” changes over time and eventually they will get nothing.
“For example, we allow Islamic truck drivers not to be required to transport distilled spirits. Are we now to force a Black restaurant owner to cater an initiation ceremony for the Sons of Confederate Veterans or to bake a cake with the Confederate “stars and bars” flag on it, a flag that symbolizes the enslavement and subjugation of their ancestors? Of course not.”
Why of course not? It is exactly the same type of misapplied closed stance actions based upon theory rather than fact. There hasn’t been a confederate soldier in the US since the last one died probably in the late 1800’s. The people now that the writer identifies are not people afraid of something. they are people being told to be afraid of something.
History is a teacher. It can be taught for successes or failures. And either can be repeated. But that is history that hasn’t been accomplished yet and has no outcome. So what was learned is all we have in this case. And history can only harm you if you want it to or it is accomplished by people who use it for such.
So, your problem isn’t what happened. It’s what could happen used questionably. And if we didn’t spend so much time recognizing our differences and more time on trying to avoid harm, we might get better. After all, we can make a person leave a restaurant if they don’t have a shirt or shoes on. Then why is that so far away from a lawsuit because I want to go barefooted? The dirt is still on the floor whether I’m there or not.
wy69
I rarely read the argument that it is not the government’s role to compel an business or individual to enter into a contract. There is also the matter of whether an artist really owns their self expression. If they can be forced to produce work they object to then it is obvious they do not own their self expression but are only talent for hire.
The default needs to be freedom. The government should as rarely as possible intervene to force people to do something.
This is one reason I am dubious about folk who want government control of social media or Russian style anti-LGTB propaganda laws.
Once the principle is established that the government can control speech it won’t be good for conservatives.
Western states were created on the condition of perfect religious freedom.
The Supreme Court should zap an infringing one out of existence when a relevant case is presented.
No senators, no public pensions, etc.
“society should come down on the side of protecting the liberty of LGBT people.” She believes that in such conflicts it is a “zero-sum” game in which one side must always surrender their rights to the other.“
Ok then, make the letter people surrender to normal people. That’s “democracy”, right? Let’s all vote whether to throw the queers into the sea.
See how they like their “democracy.”
THE problem is, the Commies trying to take over this country are trying to separate us from our heritage, ESPECIALLY our Judeo-Christian heritage. That part of our heritage is not congruent with Marxism and therefore, is utterly unacceptable to the Commies. That is why their fight is taken to the courts. A Christian or practicing Jew should, therefore, NEVER EVER EVER vote for a Commie Rat.
Homosexuals already have all the rights afforded any American citizen by the Constitution.
They don’t want equal rights. They want special privileges.
Bullcrap. The sodomite lifestyle was illegal for most of our nation’s history, right up to little over 2 decades ago.
From 1776 to the 1990s, America wasn’t free?
I am dubious about those who want the sodomites and perverts to be free to spread their filthy lifestyle and even push it to children.
I argued for years on FR the problem is in the confiscation of the term “marriage” by the State. Everyone with a “marriage license” is in a civil union. As an American, I have no issue with a two men or two women entering into a legal contract with all the rights and responsibilities to one another as in any heterosexual marriage. It’s not a zero sum game. Their marriage wouldn’t change mine and pairing off should have a positive stabilizing effect on society. I argued it’s an opportunity for that community to grow and begin to find stability rather than hedonistic promiscuity and self destructive coping mechanisms of alcoholism, drug addiction and rituals of abuse. It’s still early days.
I don’t believe in compelling speech that betrays someone’s strongly held religious beliefs any more than members of the gay community should be compelled to endorse only heteronormativity. There must be some compromise.
My experience with people tells me transgenderism is a disorder (an extreme self hate often reflecting a pattern of abuse) that should not be rewarded by mutilation of children. I am also consistent as I oppose circumcising infants. Absent medical intervention needed to restore normal function, let men decide when they are older.
I am compelled to use personal pronouns for people at work who have them and indulge their disconnection with reality. No one wants to help these people heal. Health professionals are afraid to go against the heterodoxy of the militant advocacy groups and be seen as uncaring. Homosexuals can’t seek reparative therapy because it’s seen as self-hatred (yet transagenda mutilation isn’t???) and medical professionals won’t touch it.
As long as she’s serving LGBT customers in general, her personal faith and creativity should be left to projects that bare out who she is. A free marketplace will decide if she can make a living or not. Calling for boycott or attempts to intimidate current or future clients is bigoted harassment and should be a civil rights violation and perhaps tortious interference. I am hoping this SCOTUS can find the right balance.
heterodoxy should be orthodoxy*
"Religious convictions vs. gay rights: A modest proposal"
FR: Never Accept the Premise of Your Opponent’s Argument
The Christian Post? There is nothing profound about this case imo.
There is no mention of Section 1 protections of 14th Amendment (14A) in the referenced article, correction welcome.
Excerpted from 14A:
"Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States [emphasis added]; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
"Section 5: The Congress shall have power to enforce, by appropriate legislation, the provisions of this article."
Regarding the case as described by the article, what's worse, activist states that try to get away with religious violations of 14A protections. or Christians, and people in general who value their freedom of religious expression, but were possibly never taught the law of the land well enough to protect themselves from violations of 14A by activist state courts?
Patriots are reminded that the drafters of the Bill of Rights (BoR) had decided that the states did not have to respect the rights expressly protected by the BoR. Only the federal government was originally obligated to respect BoR rights.
In other words, if this case had taken place before 14A was ratified, then Ms Smith would not be a happy camper with the state court's honest decision about her failed BoR religious expression protections by state abridgment.
But while some Christian denominations seemingly wash their hands of government authority because it is "evil", 14A in this example, note that Acts 22:23-29 shows that the Holy Spirit led Apostle Paul to claim his Roman citizenship to get out of a flogging.
Also consider that 14A was successfully applied in a relatively recent UC Berkeley, California case to win a judgment against abridgment of free speech, although I wouldn't be surprised if California taxpayers ultimately paid the compensation.
UC Berkeley settles landmark free speech lawsuit, will pay $70,000 to conservative group (12.4.18)
Consider that Justice Reed had put it this way about 10th Amendment-protected state powers versus 14A personal protections.
"Conflicts in the exercise of rights arise and the conflicting forces seek adjustments in the courts, as do these parties, claiming on the one side the freedom of religion, speech and the press, guaranteed by the Fourteenth Amendment, and on the other the right to employ the sovereign power explicitly reserved to the State by the Tenth Amendment to ensure orderly living without which constitutional guarantees of civil liberties would be a mockery." —Justice Reed, Jones v. City of Opelika, 1942.
It's not about religion, it's about fairness. Who was the idiot who proposed that Sodomites were deserving of rights not available to Heteros?
Considering they are openly and self righteously ruining children, I’d say there’s no room for compromise. Also see my tagline.
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