Guest column by Jeremiah Keenan | Flowers, cake and the RFRA

By Jeremiah Keenan 04/22/15 11:19pm

In last Tuesday’s “Toe the Line,” Carter Skeel argued that Indiana’s Religious Freedom Restoration Act is a reasonable law. Former members of Penn College Republicans rushed in a letter to express their “utter dismay.” Current Penn Republicans repudiated the article on their Facebook page. Anonymous commentors spewed expletives and suggested that Mr. Skeel be disenfranchised; friendly commentors told him to retract the article ASAP. Surprisingly few — in fragmented Disqus comments — tackled the more difficult subtleties of the Act.

The text of Indiana’s Religious Freedom Restoration Act can be found online. Most of the law is similar to the Federal RFRA and individual RFRAs of 21 states, including Pennsylvania. The law was controversial because it states the government may not “substantially burden” a proprietor’s exercise of religion in the operation of their for-profit companies unless doing so is the least restrictive means of furthering a compelling government interest. The law explicitly adds that this rule applies regardless of whether the case in question was brought by the state or an individual.

Some assumed that religious bigots throughout Indiana would claim that it “substantially burdened” their free exercise of religion to provide service to homosexuals. In a market with many others happy to provide the relevant service, it would be difficult to argue that the “least restrictive” means of furthering a “compelling” government interest would include forcing such people to provide their service to the LGBTQ+ community. Thus, it was feared, the law would override local non-discrimination ordinances in almost every case where a religious person refused service to a homosexual.

Great pressure was brought on Indiana to scrap RFRA or join a minority of states by creating a non-discrimination law naming the LGBTQ+ community as a protected class.

Such solutions are satisfying in their simplicity. But they tend to throw the baby out with the bathwater. They are based on the unreasonable assumption that any case involving refusal of specific services on the basis of religious belief must be a case of bigoted discrimination if the individuals being refused service identify with the LGBTQ+ community.

This simply isn’t true.

Go to the state of Washington, for example, where there is no RFRA and a non-discrimination law covers gender identity and sexual orientation. There, a judge recently ruled that Ms. Barronelle Stutzman violated state law by declining a paid opportunity to design floral arrangements for, physically attend and assist the wedding party of Robert Ingersoll. Importantly, Stutzman’s decision had nothing to do with bigotry — she had sold flowers to Ingersoll for years, and he had shared them with his partner. Ingersoll was her friend, and she didn’t give him a summary rejection when he asked her to do his wedding. She explained that she had religious objections to doing so, they hugged and Ingersoll left.

She wasn’t turning down the job because of who Ingersoll was or how he chose to live his life. The Ingersoll that asked her to festoon his wedding was the same Ingersoll to whom she sold flowers for nine years — flowers that she knew he was giving to his boyfriend. Stutzman refused because she felt that to do the job right she’d have to create and participate in an integral part of a celebration she believed was morally wrong.

Was her judgment correct? Everyone is entitled to their own opinion. But should such a choice — clearly motivated by religious scruples and causing no substantial harm to anyone (Ingersoll sued for $7.91 to cover gas costs) be protected under the law?

I think yes. Indiana did too. Washington State doesn’t. You might be anywhere in-between.

But one thing’s for sure. Not every Christian is a blood-sucking bigot if she won’t bake a cake. And not every Republican that supports RFRA should be cussed off the campus.

If we choose not to take the libertarian approach to the for-profit market, a choice — right or wrong — that America made some time ago, we need to find ways to manage the market equitably. As Mr. Skeel said, this issue involves “a balancing of rights.” And we’re not talking about a spurious “right” to throw peaceable homosexuals off a public bus in the name of religion. An intelligent court wouldn’t put up with that, and I know of no modern court that has. We’re talking about making sure that Indiana’s local non-discrimination laws aren’t used to punish decent people in the free market for refusing to do something that violates their conscience.

JEREMIAH KEENAN  is a College sophomore from China studying math. His email address is jkeenan@sas.upenn.edu. He is a former DP columnist.

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