One thing I tried to impress upon my Con Law students this semester (and every semester) is that the interplay between anti-discrimination law and freedom of speech (and freedom of religion) is complicated and raises a host of thorny questions that defy easy resolution. These issues, of course, lie at the forefront of the 303 Creative case currently before the Supreme Court, which I'm sure will address them with the care, nuance, and sensitivity they deserve [/sarcasm].
But on that matter, I want to flag a hypothetical offered by prominent First Amendment specialist and former federal judge Michael McConnell, to get folks' intuitions on:
What if a Jewish florist is asked to design the floral display of white lilies on Easter Sunday morning at a Christian church? Ordinarily, flowers are just flowers. But the lilies in church on Easter morning are a symbol of the new life in Christ. I cannot believe that a free nation would compel a Jewish florist to construct a symbol of Christ's resurrection—on pain of losing the right to be a florist.
McConnell frames this as his "personal favorite hypothetical", and clearly perceives it as a knockout argument for the pro-free speech/religious liberty side. But perhaps I'm not fully grasping the facts, because speaking as a Jew this prospect doesn't seem that frightening to me.
Suppose I'm a Jewish florist. A customer comes in and says "I've seen the lovely work you've done with white lilies, could you please make a similar display for me?" I agree, since I have loads of experience working with white lilies. The customer then says, "thanks -- we plan on putting this display up in our church on Easter morning!" This prospect ... doesn't upset me. I don't intuitively think I should be able to refuse the customer, notwithstanding the fact that I obviously don't believe in the divinity of Christ, and I don't view continuing to serve the customer as forcing me to avow any beliefs I don't hold.
At root, the reason why this prospect isn't bothersome is because I don't view my customer's use of my flowers as representing my speech. I just design the flowers; what they do with it is their business. If someone sees the arrangement at church and learns that David's Flowers created it, I do not expect them to think "wow, I had no idea David believed in Christ's divinity!" This isn't to say I have no free speech concerns regarding flower arrangements -- I would very much chafe at government regulations that, for example, regulate what shapes I can use in my designs. That part very much is my expression, would be attributed to me -- the churchgoer who compliments the pattern of the flowers would credit those decisions to David's Flowers (I wrote about this a few years ago as the problem of partially expressive conduct).
There are still plenty of tough cases at the margins. I show my customer a preliminary design; they twist their lip and say "I dunno ... it's just not capturing the majesty of Christ's resurrection, you know?" I'm at a loss ("So ... bigger?"). But I'm inclined to think that while such an example might demonstrate why I might be a bad choice to design the arrangement, it doesn't give me the right to discriminate against the customer if they are in fact thrilled with the work I do and have done for other customers.
For me, then, McConnell's hypothetical has the opposite effect than what he intended. And of course, for many Jews -- particularly Jews who live in predominantly non-Jewish areas -- the more salient threat is that local businesses will be given carte blanche authority to refuse to service any of our religious life cycle events lest it be seen as "approving" of them. To let vendors say "ordinarily, a cake is just a cake -- but a cake served at a Bar Mitzvah has religious significance that we, as Christians, cannot approve of" is not a door I want to open.
But perhaps some of my readers disagree. Curious to hear people's thoughts on this.
3 comments:
I don't think you're nuts.
I come to the debate finding it implausible that transacting with someone entails endorsing their beliefs. I SHOULD be the target audience for this example, if it is intended to be persuasive. But, as you point out, it only works as an example if you assume from the get-go that transacting with Christians entails endorsing Christianity. It's a bad example because it will only land for people who already believe what it purports to show.
(Or, the way I'd put it in a classroom: it's a controversial example, which makes it unhelpful for use in philosophical or persuasive argument.)
I struggle with this one a lot.
I tend to side with the vendor, imagining myself as a vendor who is asked to make a wedding thing that goes against my own beliefs. For example, what if someone wanted a wedding website that said "Marriage should be only between a man and a woman" and wanted to sprinkle various transphobic and homophobic quotes through-out the website.
Then I argue with myself. But what if it's not about controversial statements. What if it's someone saying no simply because it's two men or two women getting married...if someone can deny someone service for that, would I also be okay with someone denying service to a white person marrying a Black person?
So...then I'm thinking no discrimination should be allowed. Everyone should have to serve everyone. BUT....
What if we're asked to make a wedding website for a bride and groom that is full of big-game hunting pictures, Confederate flags, AR rifles, etc.
A part of me just wishes we could turn a blind eye to these refusal-of-service situations and that people would just find vendors that align with their own viewpoints.
You're not nuts, but it is your personal opinion. The explanation that follows hinges on this sentence: "This prospect ... doesn't upset me." The text that follows is your rationale for explaining your personal feeling on the matter. As it happens, other people have other alternative personal feelings on these issues which is why this was a lawsuit in the first place. Personally, my intuitive answer is the complete opposite of your intuitive answer and I have my own related personal feelings to justify by belief. The fact that other opinions exist, invalidates your hypothesis right off the bat. At issue should not be one's personal feelings, but the underlying absolute truth. Glad to outline my rationale further but I am not doing so right now because to do so would be to contradict the point I am making.
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