IT'S NOT THAT COMPLICATED

20-Aug-2015


People in the Christian far right, adamant in their opposition to marriage equality, believe that their right to practice their religion is under assault from anti-God forces, and that "activist judges" are enforcing their godless beliefs without regard to laws protecting religious expression.

Exactly what the term "activist judge" means is a matter of disagreement. People who use the phrase claim that it refers to a judge who made a decision contrary to the established laws. In actual practice, they seem to mean "a judge who made a decision I don't like." Ironically, their own preferred decisions are the ones that conflict with the actual established legal code.

Recently, a number of owners of businesses, primarily bakeries, have been sanctioned in some manner (usually a matter of paying fines, or paying damages resulting from a civil suit) for refusing to serve same-sex customers. One Jack Phillips, for example, owner of Masterpiece Cakeshop, in Lakewood, Colorado, declined to bake a cake for the wedding of two male customers. The court trying the case ruled against him. You can read the story here: "Colorado court: Baker can't cite religious beliefs in refusing to make cakes for gay weddings". The story cites similar decisions in cases in Oregon and New Mexico, and a not-yet-concluded case in Washington.

Each case has been decided based on the content of laws passed by one of the governments in whose jurisdiction the bakery operates, either a local municipal ordinance or a state law. That, of course, is how judges are supposed to decide cases. This isn't a matter of "activist judges," whatever that means. It's a matter of judges simply observing the laws that exist and applying them to the case at hand.

In Colorado (as in Oregon and New Mexico), there is a state law that specifically prohibits businesses that deal with requests made by customers in the general public (usually described as "places of public accommodation") from discriminating against customers based on, among other things, sexual orientation. The court in the Colorado case found that Mr. Phillips had refused a service to a homosexual customer that he would have provided to a heterosexual customer, exactly the kind of thing that state law says he is not allowed to do. He would have been equally guilty of violating the law if he had turned away a customer on the grounds that the customer was black, or Jewish (discrimination based on race and religion being also prohibited by the law). Most people, regardless of their religious beliefs, seem to acknowledge that refusing to serve a black or Jewish customer is outlawed. There are so many, however, who can't seem to get a handle on the fact that if the local law also protects customers based on their sexual orientation, then the law really means what it says.

The Christian Homophobe Lobby (I am making that name up, but the shoe fits) have come to believe there is a pro-gay bias in the American legal system: they point to cases such as that of the baker in Denver who declined to bake a cake decorated with the statement "God Hates Gays." A court held that the baker was within his rights to refuse to make such a cake. How is that different, wonder the Gay-Haters For Christ? (Yes, I made that name up too.) Why is it wrong to refuse to serve gay customers but okay to refuse to serve anti-gay customers?

Okay, let me explain what the difference is.

In the Denver case, the baker's refusal to provide a service was not due to the sexual orientation of the customer. He would have refused to put that message on a cake regardless of whether the CUSTOMER was heterosexual, homosexual, left-handed, Chinese, Zoroastrian, or had any other conceivable characteristic the baker didn't like. It was the message that the baker found detestable, not the person ordering it. Courts have, indeed, found that any business has the right to decline to provide a service based on the nature of the service. There is no law anywhere in the legal code of Colorado that says otherwise. No law had been violated by the Denver baker -- just as no law was violated by the Christian-owned t-shirt company in Kentucky that refused to print shirts advertising a gay pride festival. Pro-discrimination advocates have pointed to the Kentucky ruling as a sign that the tide has begun to turn in their favor: See, they say, the court ruled against the homosexuals. It's starting to go our way, and we'll win in the end.

That's very sad wishful thinking, based on a willful misunderstanding of the issues involved. NONE of the court decisions I have mentioned here have been decided "in favor of gay rights" or "in favor of religious rights." They have, in every case, been decided on the basis of what the laws say is prohibited and what the laws don't prohibit. In every case it comes down to this distinction: Was the requested service, in and of itself, offensive to the business owner, or was there some characteristic of the customer on which the businessman based his refusal? In the case of Masterpiece Cakeshop, the customers requested that Mr. Philips do something for them that he is happy to do every day as a part of his business, and he declined due to the sexual orientation of the customers, as a Colorado law, in existence before the issue ever arose, said he could not. I am at a loss to see why this is hard to understand.



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