Tag: same-sex marriage

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Refusing to Serve: Moral Dimensions of the Masterpiece Cakeshop Case

By Jim Spiegel

Recently, a Colorado appeals court ruled that baker Jack Phillips—owner of Masterpiece Cakeshop in Denver—does not have a right to refuse service for a gay wedding.  The legal reasoning in this case, which affirmed previous rulings, is now the topic of much debate, and many more cases like it are sure to follow, with some perhaps being appealed all the way to the Supreme Court.

Setting the legal issues aside, what are we to say about the moral stance of the baker in this case?  Was Mr. Phillips morally justified in refusing to serve this same-sex couple?  A Christian pastor recently posed this question to me:  Assuming that same-sex marriage is inappropriate for moral-theological reasons, does a Christian baker such as Phillips have a duty to refuse to serve for a same-sex wedding?  The pastor went on to explain that he strongly affirms the traditional view of marriage as the union between one man and one woman and that, therefore, same-sex unions are immoral.  Yet, he was not convinced that Phillips would necessarily be doing anything wrong by serving the couple.  After all, the pastor said, he’s just doing his job.  Why not simply take the approach that he will serve whoever asks.  After all, Jesus says, “give to the one who asks you” (Mt. 5:42; Lk. 6:30).

In response, one might note that Jesus’ maxim here is not intended to be unqualified.  Thus, for example, presumably Jesus would not want you to strictly abide by this instruction when an inebriated friend asks you for the keys to his car so he can drive himself home.  Similarly, one might say that a business owner should not refuse anyone service unless doing so would constitute support for an immoral act.

The problem with this general qualification, the pastor pointed out, is that, as American consumers, it is virtually unavoidable to indirectly support immoral systems and policies, such as manufacturing sweat shops or environmentally hazardous practices, via our clothing and food purchases.  So how is this any different?

This is a common response to the situation, but I think it confuses the issue by comparing a clear case of problematic moral complicity with less clear “gray area” cases.  To make my point, I countered with a hypothetical case of my own:  Suppose a Christian baker is approached by members of NAMBLA (the North American Man/Boy Love Association) with a request to bake cakes for one of their meetings.  Since the baker believes, for theological reasons, that pedophilia is immoral, he refuses to serve them.  The pastor thought this would be reasonable.  And he said the same regarding another scenario I presented where a similar request is made by a Skinhead group.

So the question is this:  Is the Denver baker case more like these scenarios or is it more like cases of inadvertent support of sweatshops and other injustices through one’s purchases?

In response, I would note, first, that in many of the latter cases, we should likewise refuse to lend our support through our purchases, because it constitutes moral complicity with an immoral act.  However, it can be difficult to know when such support is significant enough to warrant our refusal to make certain purchases on those grounds.  Thus, we may want to consider two relevant moral criteria:  1) how significant is the immoral conduct in question?  And (2) how direct would be one’s support of the immoral conduct, if one acted on the request?  The reason most of us would grant that a baker is morally justified in refusing service to NAMBLA and the Skinheads is that such service would directly support these organizations, and the immoral aims of these groups are highly significant–pedophilia and ethnic hatred are serious moral crimes.

So let’s apply these questions to the Denver baker case.  Does Phillips have grounds for thinking that same-sex unions are significantly immoral?  As a Christian who takes seriously both Scripture and the unified voice of nearly two millennia of theological history, he certainly seems to.  And would the requested service directly support this conduct?  Again, the answer is yes—at least as directly as the same service would support NAMBLA and the Skinheads in the parallel cases.

So whatever legal fate might befall Mr. Phillips for refusing to serve a gay wedding, his choice is morally appropriate, given the traditional Christian sexual ethic.  However one might want to quibble with that traditional doctrine or shift focus to the political-legal dimensions of the case, Phillips’ actions are morally coherent and warranted.  Active complicity with an immoral act is wrong, and the refusal to be so complicit is morally justified.

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Thoughts on the Indiana Religious Freedom Restoration Act

By Jim Spiegel

Recently there has been a lot of controversy surrounding the Indiana Religious Freedom Restoration Act (RFRA).  This act declares, “a governmental entity may not substantially burden a person’s exercise of religion…[unless it] (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.”  The law is very similar to more than twenty other such RFRA laws in other states, as well as a 1993 federal law, which states, “Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.”

A few days ago I participated in a panel discussion of the issue at Taylor University.  In addition to some substantive Q&A with the audience, those of us on the panel addressed several prepared questions.  Below are my responses.

What is the nature of ‘religious freedom’?  

Legally speaking, religious freedom is the right to practice one’s faith without interference or censure by the government or fellow citizens.  The First Amendment says Congress cannot “prohibit the free exercise” of religion.  Morally speaking, we may agree that such freedom should be granted by governing authorities just to the extent that practicing one’s religion does not violate the basic rights of other people.  (This is also essentially affirmed in the French Declaration of the Rights of Man in 1789.)  And it is here that things get messy.  For some religious practices could be construed as violating someone’s rights.

What do laws like the Indiana RFRA aim to affect as far as religious freedom is concerned?

Although the principal context of the 1993 Federal RFRA concerned government encroachment onto Native American sacred land, this law and similar state laws have more generally been taken to aim at protecting a religious person’s freedom to abide by their religion’s core moral convictions.  In more recent years, as regards the whole issue of same-sex marriage and religious folks affirming the traditional Judeo-Christian view of marriage, this has been taken to include not being forced to commit the sin of complicity with immoral acts.

What does this legislation actually allow? 

This legislation allows a person the freedom to practice their faith without “substantial burden” being placed on them by the government.  And, in the legal context, a business or corporation may be construed as a “person”.  In last year’s landmark “Burwell v. Hobby Lobby Stores” Supreme Court decision, it was decided that for-profit corporations may hold religious beliefs.

What is it about the Indiana RFRA as opposed to the federal 1993 version that has provoked such ire?

This question commits the fallacy of complex question.  Did this law in particular provoke “such ire” or were there other factors that initiated and fanned the flames of controversy?  Since there is the 1993 federal law and more than thirty states have similar laws and legal provisions, many believe it is the latter.  Some speculate that the Indiana law was simply chosen by LGBT activists for practical reasons to generate national public attention to this issue—perhaps to prime the pump of public opinion as the Supreme Court is currently deliberating a case pertaining to the same-sex marriage issue.  And much of the controversy also seems to have been media driven.

Does the language of this particular version legally permit the service discrimination of certain minorities beyond the circumstances of participation in religious ritual and ceremony?

I don’t see how it could, since there is nothing about being a minority per se that presents a challenge to any reasonable religious practice.  Perhaps this is one of the reasons why the RFRA has not, until now, been controversial or faced any fundamental court challenges in the 22 years of its existence at the federal or state levels.

Do individuals have the moral right to treat individuals differently due to their sexual orientation or gender identity if such treatment is based on religious reasons?

I don’t think there is any theological basis for moral discrimination against people.  But I do think there are strong moral-theological reasons for discriminating against certain behaviors.  For example, a refusal to participate in some activities may be necessary to avoid moral complicity with behaviors essentially proscribed by one’s religion—for instance, if I am asked to support a same-sex wedding by providing a service such as a photography or baking.  But notice that even this doesn’t amount to discriminating on the basis of a person’s sexual orientation so much as it discriminates against the action of performing a same-sex wedding or, more specifically, the lifestyle choices that such a ceremony celebrates and even religiously enshrines.  Keep in mind that when performed by a minister in a church context such weddings are religious ceremonies.  So to insist that any person, such as a baker or photographer, lend their professional support to this sort of religious ceremony is essentially to insist that they embrace or approve of a particular religious practice.  So, ironically, in such contexts the RFRA actually protects people from religion or certain religious practices.

Should we be concerned about the manner in which the Indiana government responded to social pressure, ultimately amending the bill in the wake of serious backlash from national business? Isn’t this undemocratic?

Some say it amounts to public blackmail.  I would say that, generally speaking, the freedom to exert such pressures is part of the democratic process.  But that doesn’t mean they are always reasonable or coherent.  In this case, there are reasons to think it is arbitrary, because so many states and the federal government have similar laws, and hypocritical, because so many business leaders who have protested already do business in states that have such laws.

Is the ability of large businesses to effect such change a dangerous precedent regarding freedom of expression in general?

I think the more dangerous precedent is how such hysteria and duplicitous public criticism of the RFRA has gone unchecked and critiqued by major media and journalistic groups.

The ACLU has remarked that this legislation is a “solution in search of a problem” – Is there good reason for this legislation to exist in Indiana at this time?

I think so.  The GLBT movement and its rhetoric has advanced to the point that those who even voice dissent on the morality of same-sex relations are demonized or ostracized without any discussion or debate.  We’re approaching a state of dogma (again, about the moral issue) in the American cultural centers of power (federal government, state and local government, major media, public education, and entertainment industries) that would terrify and astound (the great proponent of liberty) John Stuart Mill, not to mention the U.S. founding fathers.  Where there is public suppression of views, political oppression of people is never far away.

Today we seem to be moving toward a situation where public expression of the traditional Judeo-Christian view of marriage and sexuality are essentially censored (suppressed via public pressure), and this is creating by contrast a new form of heresy.  If you don’t tow the line regarding the new progressive sexuality, then you are a moral heretic (never mind that your view has been affirmed by the overwhelming majority of scholars and ordinary folks in the East and West, both down through history and in most of the world today).

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Ominous Writing on the Supreme Court Wall

By Jim Spiegel

The recent Supreme Court decision in United States v. Windsor found that the Defense of Marriage Act (DOMA) deprives same-sex couples due process and equal protection under the law, thus violating the fifth amendment of the United States Constitution.  Writing for the majority in the 5-4 opinion, Justice Anthony Kennedy declared that traditional marriage laws “disparage,” “injure,” “degrade,” and “demean” same-sex couples.  Furthermore, Kennedy claimed that the intention of DOMA was to “impose inequality,” to “impose . . . a stigma,” and to deny homosexuals “equal dignity” under the law.  Members of the LGBT community, of course, are celebrating this decision.  Traditionalists, on the other hand, are worried about the eventual ramifications of this decision.  Justice Antony Scalia, writing for the minority, explained why in a powerful rebuttal that is worth quoting at length:

I am sure these accusations are quite untrue. To be sure (as the majority points out), the legislation is called the Defense of Marriage Act.  But to defend traditional marriage is not to condemn, demean, or humiliate those who would prefer other arrangements, any more than to defend the Constitution of the United States is to condemn, demean, or humiliate other constitutions.  To hurl such accusations so casually demeans this institution. In the majority’s judgment, any resistance to its holding is beyond the pale of reasoned disagreement.  To question its high-handed invalidation of a presumptively valid statute is to act (the majority is sure) with the purpose to “disparage,” ”injure,” “degrade,” ”demean,” and “humiliate” our fellow human beings, our fellow citizens, who are homosexual.  All that, simply for supporting an Act that did no more than codify an aspect of marriage that had been unquestioned in our society for most of its existence—indeed, had been unquestioned in virtually all societies for virtually all of human history.  It is one thing for a society to elect change; it is another for a court of law to impose change by adjudging those who oppose it hostes humani generis, enemies of the human race.

Remember that when it comes to Constitutional law, precedent is everything.  With this decision, the Supreme Court has effectively declared that there are no rational grounds for the traditional view of marriage, that the only basis for affirming the traditional view is, well, hate.  So this decision not only overturns DOMA but also provides powerful momentum for state legislatures to fall in line.  Some are predicting that in less than five years all fifty states will have legalized same-sex marriage.  So, apparently, we are heading for a new national orthodoxy when it comes to marriage.  And for those who don’t agree, it spells trouble.  What will happen to pastors who affirm the traditional view in their sermons?  That’s hate speech.  Or wedding vendors (bakers, florists, banquet hall owners) who refuse to serve same-sex weddings?  That’s illegal discrimination.  In fact, such cases are already in the news.  But when the new orthodoxy is in place, it will be ramped up considerably.  This is a good example of what Alexis de Tocqueville called the “tyranny of the majority.”

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The Hidden Fallacies of “the Wrong Side of History”

By Jim Spiegel

Ever heard someone refer to a certain view as being on the “wrong side of history”?  It is an increasingly common expression.  And I find it particularly annoying, because it is typically used as a way of challenging, if not completely dismissing, the view in question, while the speaker or writer offers nothing in the way of an argument or evidential support for doing so.

Lately this phrase has been employed by everyone from Lucas Case at the Huffington Post to Shephard Smith at Fox News as both have appealed to the notion that those opposing same-sex marriage are “on the wrong side of history.”  Other recent examples can be found here and here.

So what exactly does this popular phrase really mean?  Two possibilities come to mind.  The expression might be intended to suggest that, as time goes on, most people, perhaps everyone, will hold the view in question.  Thus, Case and Smith are just saying that eventually a strong majority of Americans will favor same-sex marriage.  But, if this is what it means, then we might well ask, what does that have to do with the truth of the view?  How relevant is majority opinion to discovering the correct view on this issue?  The answers to those questions, of course, are “Nothing” and “Not at all.”  To suggest otherwise is fallacious reasoning, a logical error known as the ad populum (appeal to popular opinion) fallacy.  Even if everyone agrees about a particular view, it doesn’t follow that its true.  (History is replete with cases of extremely popular views that we know to be horribly mistaken.)

Another possible meaning of the expression “wrong side of history” is that the view in question will eventually be proven true, such as through some scientific or philosophical argument.  So, on this interpretation, Case and Smith are using the phrase to communicate their belief that reason will inevitably demonstrate that their view, that same-sex marriage should be legal, is correct.  But how could Case and Smith be so confident about that?  They certainly don’t offer any arguments themselves, nor even suggest whence such arguments might eventually come.  So their bold proclamations really amount to groundless dogma.  And this, too, is a logical fallacy, specifically known as the fallacy of unsubstantiated claim.

These two interpretations of the phrase “wrong side of history” seem to me to be the only really plausible ones.  Perhaps there is a more reasonable sense of the phrase that I am overlooking.  If so, those who use this expression have effectively concealed it, for they never explain what they mean.  But if I’ve correctly identified the hidden meanings of the phrase, then the implications aren’t flattering for those who use it.  For it appears that those who do so commit one of two fallacies: the ad populum fallacy or the fallacy of unsubstantiated claim.  In either case, use of this phrase appears to be, as it were, on the wrong side of logic.

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Breaking Up is Hard to Do

By Amy Spiegel

Remember back in high school, when you would drive by your ex-boyfriend’s house, hoping to “just happen to be driving by” at the exact time he just “happened to be” washing his car? Your heart was filled with a strange mixture of fear (of being discovered) and regret (of passing by without incident), wondering if old flames might be rekindled. Maybe you were the one who broke things off. Maybe with good reason. But as the saying goes, “Breaking up is hard to do.”

I have recently experienced a retail heartbreak from which I may never recover. Over the years, we have shied away from certain retailers for one reason or another. Toys-R-Us lost our business years ago along with McDonald’s. I haven’t been religious about avoiding these places (Let’s face it, there are days when you need cheap ice cream and fast). But whenever I do, I am quickly reminded that I don’t just disagree with these stores on a large scale philosophical level, I actually despise the experience of being there. Never can I recall leaving either one of these places saying, “Gee, I am really glad I came here.”

Not so with my beloved Target. Target. Just saying the name sends me to a happy place. My day can be crumbling around me, kids whining and out of control and then magically, Target appears on our horizon. A cheap popcorn combo and slushie later and all is right with the world. That is, until now. Recently I learned that Target is now actively promoting same-sex marriage. So I sat the kids down and said “No more Target.” I am not sure who is more sad, but I am pretty sure if this was a divorce situation, the kids would be rooting for a shared custody situation.

So as someone who is willing to put my money where my mouth is, it has been very interesting to watch the war against Chick-Fil-A develop over the last few months. Long ago, when we decided to go vegetarian, I decided to make a certain exception for myself, in order to hedge against legalism (and let’s be honest, to give myself an occasional meat fix). My conscience-free meat-eating exceptions are Ali Babba’s Deli in Knoxville (best turkey sandwiches on the planet) and Chick-Fil-A (God’s fast food restaurant).

Now, ironically, the place I consider to be a safe haven of waffle fries and decent kid’s meal toys is under attack. I have tried to put myself in the shoes of those in the LGBT community who are “outraged” at Chick-Fil-A’s stance on marriage. After all, I have boycotted retailers who didn’t espouse my values so why should it bother me if others exercise that same freedom?

After pondering it for a while, I do see at least one major difference. People like me are not denying Target or any other companies the right to donate money to whomever they choose. I also have this right and can choose not to give Target my business. This doesn’t seem to be enough for the LGBT community. They aren’t satisfied with merely boycotting companies or individuals who disagree with them. They seem to want to destroy anyone who doesn’t share their views. Just ask Brad Pitt’s mom. What happened to freedom? What happened to individual choice?

So let’s play fair here, shall we? While I ask others to support the rights of those with whom they disagree, I will support Target’s right to support gay marriage, even though I would much rather support their selection of an affordable yet fashionable accessory line. The gays get cute earrings and I get waffle fries. Seems like a fair trade.