On Wednesday, November 18, the Indianapolis Star opinion team sponsored an event titled, “Do I Have to Bake You a Cake?” I was pleased to attend with a few friends and enjoyed the formal event as well as some informal discussion with other attendees after the event.
The event was a discussion between Jane Henegar, executive director of the Indiana ACLU and John Lawrence Hill, professor, Indiana University Robert H. McKinney School of Law. Tim Swarens, an Indianapolis Star opinion editor, moderated the discussion.
It was an excellent forum and I particularly enjoyed dialoging with people holding different views after the discussion. Here’s what I liked about the event:
- Promotion of respectful civil discourse – In an age where vitriolic (and often ignorant) comments on social media dominate discussions, it was refreshing to sit for 90 minutes and weigh the arguments from each side. Mr. Swarens even opened the event with a Baptist church style invitation to stand up and greet your neighbors!
- Strong representatives on each side – Nothing is worse than a discussion where one panelist is unable to articulately defend their view. Both Professor Hill and Ms. Henengar were well prepared, articulate, and did an excellent job.
- Moderator was actively engaged without unfair bias – The IndyStar opinion team has been pushing for expanded LGBT rights, but Mr. Swarens was very fair toward Professor Hill. I was impressed by his astute observation that “work as worship” is a distinctly Protestant idea which heavily impacts the discussion at hand. Given the poor moderators at Presidential debates over the past decade, it was refreshing to see a moderator who was informed, yet more concerned with discussing issues than pushing his agenda.
In the next few paragraphs I will summarize the arguments made by each panelist and comment on what I found persuasive from their arguments and where I found their arguments lacking.
Jane Henegar, executive director, Indiana ACLU
Ms. Henegar’s primary argument was that Civil Rights laws have been passed for 2 primary practical reasons: (1) Ensure goods to all and (2) Protect all from assaults on personal dignity. She also referenced the aspirational goal of civil rights laws; namely, that the law would instruct people to treat others with fairness and equality. Her strongest point against a religious exemption to civil rights laws centered on the loss of goods and the potential nationwide fallout that could occur if a precedent were set. She pointed out that if this precedent were set, and especially if the religious exemption were poorly defined, the national implications for this precedent could be significant.
The weakest portion of Ms. Henegar’s argument was her objection to a limited religious exemption. She said that detailing a limited exemption is incredibly difficult and unprecedented. Because of this, it should not be pursued. I agree with her that it would be incredibly difficult and that it is unprecedented, but this seems like a weak reason to oppose establishing such an exemption. If anything, the ACLU seems to delight in cases that are difficult to define and push against unprecedented boundaries.
If creating a limited exemption is the right thing to do, then the degree of difficulty in establishing it is irrelevant. It also seems that if creating a limited exemption is wrong, the degree of difficulty in establishing it is also irrelevant. In either case, her primary stated objection to creating a limited exemption seemed ill-founded. Further, any past changes to civil rights laws have been exceptionally difficult and often without precedent. And yet, we can all agree that it was right to pursue them. In light of this, it seems odd that Ms. Henegar would object to a limited exemption on the basis of degree of difficulty and prior precedent.
John Lawrence Hill, professor, Indiana University Robert H. McKinney School of Law
Professor Hill’s main point was that over the past 100 years, every right given in the Constitution and Bill of Rights has been substantially expanded, except for the free exercise of religion. He argued the free exercise of religion, like every other right granted in the Constitution and Bill of Rights, should be expanded where appropriate. He won the prize for “quote of the night” when he began an attempted definition by saying, “I don’t mean to sound Clintonian here.”
The strongest argument set forth by professor Hill was his rejection of a broad exemption in favor of a limited exemption. A broad exemption would allow a Christian businessman to refuse employment to a gay man, an Islamic apartment owner to refuse housing to a transgender female, or a Mormon hardware store owner to prevent a same sex couple from purchasing a hammer. Professor Hill stated that each of these scenarios should be illegal.
He did argue that the religious convictions of an individual should, in some cases, allow them to refuse service where it was intimately tied to core teachings of their religion. This distinction between a broad exemption and a limited exemption was helpful in refuting many of the common arguments I hear from those opposing an expansion of religious freedom.
To illustrate this point, professor Hill consistently pointed out that the religious baker who refused to make a cake for the same sex wedding had an excellent relationship with that client. In fact, the client was a “regular” at the bakery. It was only when a wedding cake was requested that the baker felt an intimate enough connection between the work and the faith to decline service.
Professor Hill’s weakest point was his assertion that interracial issues had not spawned religious pushback in recent memory. Ms. Henegar quickly pointed out Bob Jones University, where such an objection had been raised. Mr. Swarens pushed Professor Hill on this question a bit, but Professor Hill evaded each query.
In 2 weeks, a similar event titled, “Is Faith Under Attack?” will be held. I look forward to attending and continuing to participate in the public discussion. Here is the Star’s review of “Do I Have to Bake You a Cake?” In the meantime, I’m optimistic that civil discourse will increase on these topics.
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