There’s been a lot of soul-searching lately about the myriad “Religious Freedom” (RFRA) laws that have begun popping up around the country in places like Arizona, Mississippi, Michigan, Georgia, Arkansas, and, most famously, Indiana. Much of the brouhaha began when a bakery way out in Oregon, acting on the religious beliefs of its owner, refused to make a wedding cake for a gay couple. Thus were born the great cake debates.
Of course, the issue runs much deeper than that. The cake is really just that, a cake—but if you believe the rhetoric of the right, we gay people are trying to have our marriages and eat our cakes, too.
Supporters of the RFRA laws commonly point out that a federal version of the law has been on the books for a long time—since 1993 in fact—and was signed by President Clinton. They argue that there could be nothing wrong with further protecting the First Amendment rights of citizens to believe what they want to believe, to associate with whom they want to associate, and to bake for whomever they want to bake. And what is more, the argument goes, requiring a Christian baker to make a cake for a gay couple is no better than requiring a Jewish one to bake a swastika cake for a neo-Nazi couple.
Critics of such laws, and I am one of them, counter that states are resurrecting them in a cynical response to marriage-equality decisions coming out of federal courts. These laws were originally enacted to protect certain Indian tribal rites from government intrusion. They were never intended to extend the personal rights of citizens so far as to potentially impinge upon the public accommodation rights of others. Thus twisted, the RFRA transforms into a license to discriminate against LGBT persons. That is why context—the reason the laws were drafted today—matters a great deal, and why so many stand opposed to their enactment.
So then, what is really going on beneath the politics and the legal maneuvering? Why would a state like Indiana want to arm its citizens with the power to discriminate, to refuse to make that cake, especially after federal law held that LGBT couples’ vows are equally worthy of respect and protection? And why does that notion sit so badly with so many that we are out calling for boycotts of an entire state?
Perhaps it is my nearly 80 years of perspective, but I cannot help but think we have seen this before on a more serious and deadly level—down in the South, when African Americans fought for the right to vote. Many in state government there did not like the trend toward greater participation by minorities in elections, and so even though the 15th Amendment guaranteed the right to vote, they put measures in place to undercut that right; poll taxes, literacy tests, and the constant threat of violence kept black voters away on Election Day. Even after the Voting Rights Act enacted in 1965, its enforcement was weak. States did not like what the politicians and judges in Washington had decided, so they decided not to play along. Instead, they did what they could to make it painful for anyone to enjoy the fruits of a civil-rights victory. The law may have said “equal,” but these states still wanted “separate.”
Today, proponents of the RFRA want to send a similar message: “Federal law may say your marriages are equal, but the good, pious people of this state think otherwise, and so we should not have to bend so much as a finger for you.” Especially in small towns across the country, that message sometimes translates into one of open hostility: Go ahead and have your gay marriage; you may not find anyone here willing to help you with it.
In many ways, then, modern day RFRA truly are “sore loser” laws designed to make as hollow as possible the fruits of marriage equality. That the state would sanction this type of law, which effectively gives shopkeepers and proprietors the right to turn-out-the-gays, feeds into a general unwelcoming atmosphere where LGBTs cannot feel accepted or at peace, precisely because they never know when or from whom the next indignity will come.
With regard to the dreaded and much-touted swastika cake, it simply is a false analogy. Comparing LGBTs to Nazis, fashionable as it is, misses several crucial distinctions. There simply is no long and pernicious history of Nazis not being allowed to marry each other. There are not millions of Nazi couples affected by the views and votes of non-Nazis. On the other hand, LGBT couples have until recently often been told by largely straight leaders elected by largely straight voters that our relationships are less valuable and not worthy of public acceptance and legal recognition. That is why anti-discrimination laws, passed in places other than Indiana, are at pains to identify discrete groups traditionally marginalized or mistreated by the majority. It is also why the law draws distinctions between those with generally immutable characteristics, such as sexual orientation, versus those with personal beliefs such as Nazism, however repugnant.
No one is saying a Jewish shopkeeper should have to make a swastika cake for a Nazi couple, nor should they have to make a cake with an obscenity on it if they choose not to. Rather, we are saying that in the era of expanding equality for LGBTs, the law has finally accepted millions of our relationships as equal in its eyes. A bakery held open to the public must acknowledge that a gay couple’s request is as good as a straight one’s, and it must act accordingly. After all, one of the foreseeable consequences of permitting same-sex marriages is same-sex wedding cakes. And contrary to myth, we will not generally make and decorate our own cakes. In fact, we have come very far ourselves, entrusting many straight bakers with this delicate mission.
So if you are a baker with your door open to the public, you may not exempt yourself from baking for some kinds of couples simply because of your personal religious beliefs, or because you want to make gay people feel lousy on their wedding day. You may not do this, just as you may not refuse to make a cake for an interracial couple, even if you believe it’s against God’s will that the races intermarry, and even if this belief is sincere. You do not get to elevate your beliefs so high as to ruin another person’s experience and participation in society. Instead, your cooperation is part of the social contract we all implicitly signed on to as part of this civil society.
It is this very social contract that we had in mind when calling for boycotts of states passing or considering RFRA today. The Indiana boycott, which appears to have successfully caused the legislature to move quickly to defang it, sent a powerful signal that we will not be Jim Crowed again, and that states refusing to abide by the spirit of federal marriage recognition will be shunned. They can choose to thumb their noses, and cynically to empower their citizens with the right to be uncivil in the name of their beliefs, but there are, and must be, consequences to that. Wedding cakes will be made for both straight and gay couples, it seems, in the Hoosier State.
So there it is, my thoughts on the great cake debate. Don’t even get me started on florists.