Alliance Defending Freedom

Marissa Poulson at Alliance Defending Freedom may have authored the most audacious post of the week with her offering titled “3 Common Myths Used Against Christian Bakers like Aaron and Melissa Klein and Jack Phillips.” This is not the craziest polemic that I read from last week’s ample supply — not at all. Indeed, Tony Perkins at FRC flung enough batshit last week to evenly insulate Windsor Castle. What makes ADF’s offering so pernicious is that it sounds so damned reasonable.

Cheez Whiz

Poulson’s piece does not stand up to reasonable analysis but ADF’s constituency is not exactly the “drill-down-and-scrutinize” set. Those folks are content to nibble on whatever they are fed even if it is Cheez Whiz. No one knows for certain what that crap really is but it satisfies a certain appetite. The side benefit to serving unhealthy junk is that those with more discerning palates can be denigrated as “elites.”

Thus we begin:

Myth 1: Your religious beliefs don’t matter and may even be used against you.

Similar to the Kleins, Jack Phillips respectfully declined to
use his creative talents to promote a same-sex union because he is a
Christian and believes in biblical marriage between one man and one
woman. This did not sit well with the Colorado Civil Rights Commission.
One commissioner went so far as to state in a hearing in Jack’s case
that religious freedom is a “despicable piece of rhetoric” that Nazis,
slaveholders, and Jack used to “hurt others.” The Commission ordered
Jack to stop “discriminating,” “reeducate his staff,” and file quarterly
compliance reports.

The myth is a myth because religious beliefs are not at issue. It is settled law that Free Exercise means the right to those beliefs and to worship as one chooses. However, there are no religious exemptions to otherwise valid laws — even post Hobby Lobby. What the Kleins and Jack Phillips have in common is that they disobeyed valid laws. No sane, reasonable person believes that baking a cake is “promoting” anything. These people refuse service as a way of demonstrating their disapproval. There is no way to “respectfully” decline service to people one disapproves of. The Kleins and Phillips flouted the law and now they are whining about the consequences of having done so.

Myth 2: Even if you serve everyone who comes into your
bakery—the government requires that you participate in or promote all
events too—even if they violate your conscience.

People like Jack Phillips and the Kleins have no problem
serving everyone who comes into their shop. What they won’t do, however,
is use their talents to celebrate all events or promote all messages
that customers request. Freedom of expression is a protected right. A
government that forces Americans to express certain messages against
their conscience acts outside of the U.S. Constitution.

Again, the myth is a myth. What they are trying to suggest is that their clients are in compliance with the law because they serve gay people — just not their marriages. No sane, reasonable person believes that baking a cake is participating in, promoting or celebrating a marriage. Were that the case then these bakers have probably promoted divorce and adultery. Moreover, it is not compelled speech. Allow me to quote Justice Bosson of the New Mexico Supreme Court which ruled unanimously that a New Mexico photographer could not refuse a same-sex commitment ceremony on religious grounds (emphasis added):

The Huguenins are free to think, to say, to believe, as they wish; they may pray to the God of their choice and follow those commandments in their personal lives wherever they lead. The Constitution protects the Huguenins in that respect and much more. But there is a price, one that we all have to pay somewhere in our civic life.

In the smaller, more focused world of the marketplace, of commerce, of public accommodation, the Huguenins have to channel their conduct, not their beliefs, so as to leave space for other Americans who believe something different. That compromise is part of the glue that holds us together as a nation, the tolerance that lubricates the varied moving parts of us as a people. The sense of respect we owe others, whether or not we believe as they do, illuminates this country, setting it apart from the discord that afflicts much of the rest of the world.

ADF made the same First Amendment arguments in this case on behalf of their client, Elane Photography. The Supreme Court of the United States refused to hear this case (Elane Photography, LLC v. Willock) in 2014.

Myth 3:  Creative professionals give up their rights to free expression and religious liberty the second they go into business.

Human beings are endowed with rights by the Creator. In
America, these rights are protected by the Constitution. Just because
you own a business and serve the public doesn’t mean you lose your
religious freedom. Like the Kleins, Jack Phillips is an upstanding small
business owner who has run his business for over 20 years in accordance
with his faith. Now, the state is telling him that he can’t do it
anymore—but the state is wrong.

The myth is a myth because no one is infringing on their First Amendment rights. This is simply rephrasing the second so-called myth which was really a rephrasing of the first so-called myth If one operates a public accommodation then one must not violate applicable nondiscrimination laws. Those laws include sexual orientation as a protected class in Oregon and Colorado where the Kleins and Phillips ply their trade respectively.

It is ironic that the precedent in these cases is the opinion of the late Justice Scalia in Employment Division v. Smith. Scalia addressed the absurdity of religious exceptions to valid laws. ADF knows that these cases are legal losers. ADF’s interest is to use these cases to advance anti-LGBT laws in other states cloaked as “religious liberty” bills. In North Carolina and Mississippi, for example, they have succeeded in making it lawful to discriminate on the basis of sexual orientation and sexual identity.

If you are as sick of this bullshit as I am then there is a solution. It starts with voting every single year. This fall we have an opportunity to put another Democrat in the White House and to possibly regain Democratic control of the Senate. We have the power to reshape the federal judiciary, including the Supreme Court, for decades. By voting every year and changing state government we can put a stop to making it difficult for low income and minority voters to actually vote. We can undo some of the gerrymandering. We can eventually take back the House of Representatives. Ultimately, we can amend the Civil Rights Act of 1964 to include sexual orientation and sexual identity.

With a sane federal judiciary and federal nondiscrimination protections we can effectively put ADF and Liberty Counsel out of business. I am sick and tired of people entertaining Christian supremacy over basic rights for LGBT citizens and taxpayers. We want to be treated fairly in employment, housing and public accommodations. We neither seek nor require their approval (which we will never get). They are free to disapprove and to express their disapproval. They should not be free to refuse service which is conduct in contrast to religious belief. It all starts with getting off your ass and voting. Now is the time to get registered if you are not. Now is the time to get photo ID if required to vote so that, in the future, people won’t have to jump through hoops to exercise their right to vote. It is all up to us.

By David Cary Hart

Retired CEO. Formerly a W.E. Deming-trained quality-management consultant. Now just a cranky Jewish queer. Gay cis. He/Him/His.