Building a More Tolerant America
I recently came across a poll from the Georgetown Institute of Politics and Public Service that points to a major problem in our politics. While 85 percent of voters believe “compromise and common ground should be the goal for political leaders,” nearly the same percentage of voters say they are tired of political leaders “compromising their values” and want politicians who will “stand up to the other side.”
This incongruity begs the question: how do we create a culture that cares more about civil dialogue and compromise and less about “fighting the other side”?
One way we can lower the temperature of our political discourse is to remember that different individuals in different parts of America will embrace different ways of life. Not only is this okay, this is to be expected in a big, pluralistic country like ours.
There are many topics we could explore that would highlight how different perspectives can co-exist. But, over the next 1000 words, I want to focus on the fact that religious Americans should be free to practice their faith in the public square. In a tolerant country, we would not compare religious Jews and Christians, who happen to hold traditional views about marriage and sexuality, with white supremacists who defended the state sanctioned racial terrorism that was Jim Crow. In a tolerant America, we wouldn’t vilify bakers like Jack Phillips and florists like Barronelle Stutzman.
As Supreme Court Justice Anthony Kennedy wrote in the majority opinion for Obergefell v. Hodges, a decision which legalized same-sex marriage, “It must be emphasized that those who adhere to religious doctrines may continue to advocate with utmost, sincere conviction that same-sex marriage should not be condoned.”
Three years after Obergefell, Kennedy wrote the majority opinion in Masterpiece Bakeshop Ltd. v. Colorado Civil Rights Commission. Kennedy identified that a legal tension exists between First Amendment-protected religious freedom and the fact that “business owners and other actors in the economy must offer equal access to goods and services under a neutral and generally applicable public accommodations law.” In other words, a person’s religion doesn’t provide a permission structure to discriminate. The Supreme Court made this clear in Newman v. Piggie Park Enterprises, a ruling from 1968. Back then, Maurice Bessinger ran a BBQ chain called Piggie Park Enterprises. Bessinger prevented African-Americans from eating in his restaurants, claiming that his religious beliefs “compelled him to oppose any integration of the races.”
Bessinger was wrong. Jim Crow was wrong. If a store is open for business, the store must sell to everyone regardless of their religion, skin color, or sexual orientation.
Jim Crow-like discrimination is unconstitutional, but the question at hand is whether civil rights laws and public accommodation laws can compel artists to use their talents to create messages they oppose.
Consider the story of Barronelle Stutzman. She runs Arlene’s Flowers and Gifts in Richland, Washington. For many years, Stutzman counted Robert Ingersoll and Curt Freed, a gay couple, as one of her clients. She sold a number of custom-designed floral arrangements to Robert and Curt, including flowers for Valentine’s Day and their anniversary. Then, in 2013, Ingersoll asked Barronnelle to create a special flower arrangement for their upcoming wedding.
After praying on the matter, Barronelle decided that she couldn’t, in good conscience, use her artistic gifts to celebrate a union which, in her mind, God would not approve. Barronelle explained to Robert that she couldn’t design the flowers for his wedding. According to court testimony, Barronelle “gently took Robert’s hand” and “looked him in the eye.” Robert testified that Barronelle took no “joy or satisfaction” in having to deny his request for wedding flowers. Stutzman gave Robert the names of other floral artists she knew would do a good job, and then they hugged. Although everyone seemed to leave the interaction on good terms, Curt posted about the matter on Facebook, and, soon after, the attorney general of Washington State sued Stutzman.
Then there is Jack Phillips. He and his wife opened Masterpiece Bakeshop in Lakewood, Colorado in the early 1990s. From the beginning, they decided that their bakery would adhere to their Christian values. They refused to bake cakes for Halloween or divorces, and they decided to never use alcohol as an ingredient.
In 2012, David Mullins and Charlie Craig visited the bakery. The two men were planning marry in Massachusetts, and they were looking for a special wedding cake for a party they would throw in Colorado. Phillips offered to sell any cake in the shop, but he refused create a specialty item from scratch. The case eventually appeared before the Colorado’s Civil Rights Commission, and the commissioners ruled that Phillips had discriminated against the couple. Phillips challenged the ruling and the case went all the way to the Supreme Court. The Supreme Court ruled 7-2 for in favor of Mr. Phillips.
As I write these words, the Supreme Court just heard arguments for 303 Creative LLC v. Elenis. The owner of 303 Creative LLC, Lorie Smith, argues that she is engaged in “pure speech” when she creates wedding websites and that she wants to design only custom websites that are “consistent with her faith.”
I think artists should be given a wide latitude to choose what type of messages they want to create. A musician shouldn’t be forced to write a song she doesn’t want to sing. An editor shouldn’t be forced to take on a book project he doesn’t want to edit.
But what makes someone an artist? While I’m moved by the argument that Jack is an artist (a New York Times profile opened with this lead: “Jack Phillips bakes beautiful cakes, and it is not a stretch to call him an artist”), I’m less sure about a florist putting a bouquet of flowers together. If a florist can opt out of a same-sex wedding by claiming First Amendment privileges, what about a hairdresser? Or a weddings dress maker? A jeweler? What about a photographer?
One writer that has insight about this complex topic is Andrew Sullivan. Sullivan, who happens to be gay, wrote a landmark essay in 1989, in which he argued for the legalization of gay marriage. I’m delighted by the sea change in public opinion since Sullivan wrote A Conservative Case for Gay Marriage. Gallup polling shows support for same sex marriage has risen from 27 percent in 1996 all the way up to 71 percent today.
Back in 1989, Sullivan called for a “live and let live” culture. Now, given the overwhelming success of the LGBT+ movement, Sullivan argues for more compassion and tolerance towards religious Americans. In a recent essay titled The Case for the Baker in the Gay-Wedding Culture War, Sullivan asks, “Why take up arms to coerce someone when you can easily let him be—and still celebrate your wedding? It seems deeply insensitive and intolerant to force the clear losers in a culture war into not just defeat but personal humiliation.”
I’ll close by mentioning that my fiancee and I recently saw Bros at a local theatre. This movie is the first mainstream, big-studio romantic comedy to feature two gay men as the main love interests. I really enjoyed the film, and I hope Hollywood produces more of such movies. I have a number of gay friends and relatives, and I strongly defend their right to marry. Still, I also believe that in a tolerant America, religious artists and creative types should be able to choose which art they want to create.