Can we find common ground between LGBTIQA and the conservative Christians?
As Australia’s debate over the Morrison government’s Religious Discrimination Bill intensifies, conservatives and progressives alike appear to be adopting a winner take all approach in the main. There are wide gaps between submissions to the parliamentary inquiries underway from progressives and conservatives on the key areas of discrimination in employment and speech.
Is it possible to find common ground? Are LGBTIQA communities and conservative people of faith engaged in a culture war that can only have one side victorious? Is it possible for each group to get beyond taking potshots at each other?
The “gay wedding cake” is the classic place where the clash between rights of conscientious objection from these two groups has been seen.
In the United States, the Masterpiece Cakeshop case made it all the way to the Supreme Court, where the case was decided on a narrow ground of whether the Colorado Civil Rights Commission had an anti-religious bias, rather than the substantive issue of whether Masterpiece owner Jack Phillips should have refused to bake a wedding cake for Charlie Craig and David Mullins. Phillips has lost a subsequent cake case involving a transgender woman, Autumn Scardina.
In the United Kingdom, the seven-year court saga involving Asher’s bakery and a Bert and Ernie cake with a slogan was won by the bakers – but that ruling was centred on whether the slogan was compelled speech rather than the refusal of service to Gareth Lee, a gay man on the basis of sexuality.
The last time we asked Christians, even those with conservative views on human sexuality were divided on baking a cake. “I’d bake them two” – if the law requires it was a reaction of Christians who remembered Jesus’ injunction to go two miles – to cheerfully treat other people well, especially those you think might oppose you.
In the Masterpiece case, the US Supreme Court found that “these disputes must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market.” The disrespect to religion came from the disparagement of Phillips faith during the Colorado Civil Rights Commission hearing. Still, the ruling also contains commentary that upholds the rights of LGBTIQA not to be denied service.
Taking the Supremes’ statement of principle, how might we resolve the cake issue? A US Group called the “Fairness for all Initiative” has been tackling this sort of question, with key members collaborating in Religious Freedom LGBT Rights and the Seach for Common Ground, published by Cambridge University Press.
A chapter tackles the public accommodation (equal service for all) versus religious sensibility question. “Critics of religious exemptions to anti-discrimination laws outline four basic tensions,” the author Robin Fretwell Wilson, Director of the Institute of Government and Public Affairs for the University of Illinois System, writes. They are:
- creating unfair surprise,
- imposing hardships on third parties,
- hampering social progress, and
- placing religious believers above the law,
Unfair surprises include the public being refused service “I could not have known that I would be turned aside when I sought the service,” the experience of Charlie Craig and David Mullins in the Masterpiece case, or of an employee surprised when their company claims an exemption.
A local example of a rule against unfair surprise is abortion laws that require doctors who choose not to perform the procedure must inform patients of this direct them to someone who will terminate a pregnancy.
Imposing hardships Exemptions from military service for religious reasons is cited by Wilson because they “make it more likely that other people will be drafted”. This is a live issue in nations like Israel, which has compulsory military service and a large religiously observant population that is exempt. Abortion laws in many countries are drafted with the intention of allowing conscientious objection without imposing hardship or sanctions on either party. But Wilson notes, “In the healthcare arena, an absolute right to refuse to provide a contested service can significantly threaten the public’s ability to receive the service, especially if few or no others are willing to perform it in the immediate area.”
Hampering social progress: if there was a legal right – such as a widely drawn religious exemption from anti-discrimination law – for the cakeshop to refuse to bake a wedding cake for a same-sex wedding, that pushes back against the right to marry.
Placing religious believers above the law: similarly, an ability to refuse service to the public would require exempting religious businesses from the laws that apply to everyone else.
“The key to progress for both sides is to meld their respective interests,” Wilson writes in a chapter that suggests a solution. “Just as one baker forced out of business by laws that penalize adherence to widely held religious beliefs about marriage is one too many, one LGBT person excluded for just being gay or trans should be one too many, as well.”
She suggests that a “purity model” of anti-discrimination law is in the way of achieving progress. “Underpinning the purity model is the notion that no departure can be tolerated from the way in which racial nondiscrimination has been addressed in this country.” – a legacy of the civil rights struggle in his country.
She suggests the principle “Treating customers with dignity requires that regulated businesses serve all customers … can be honoured without running religious people out of the public square – by regulating the business, not individual workers, so that every couple who walks in is served with dignity, but no specific individual must perform any given service.
“New … laws should make clear that, as to weddings, religious owners can fulfil duties imposed on their businesses without personally performing a given service. Larger businesses can hire a new employee to perform the service if existing employees, as a matter of faith, cannot. Small business owners of businesses where there is a high probability that the owner or a family member would be asked to do the service personally would retain the discretion to hire a new employee to assist the business to fulfill its new duty or to put in place arrangements with contractual partners to assist as needed.”
Masterpiece owner Jack Phillips was the business’ bespoke cake specialist, so he would need to find another cake wizard for his customers for Charlie Craig and David Mullins. Ashers would need to find someone else to make Gareth Lee’s slogan cake. The spirit of the rule would be not to make their personal views public.
“Without a new model for sharing the public space, we risk perpetuating a culture war between faith and sexuality, a war no one can win,” says Wilson.
It seems we are in danger of being locked into win/loss thinking in Australia.
Some Conservative Christians want to have more than the Bill provides for them. Progressives want to argue that existing religious freedoms need to be trimmed back. It seems we have two communities scared of each other; the LGBTIQA concerned about harm, the conservative Christians that new laws might squeeze them out of teaching their faith.
One small moment at the end of the Ashes test series is worth pondering, Usman Khawaja leapt from the awards stage when the champagne came out – as an observant Muslim he could not stay. He was happy for them to celebrate in their own way. But team captain Pat Cummins quickly signalled to the players to put down the grog and called Khawaja back. Its how a diverse community needs to behave.
We need to ask whether nuanced solutions like the Fairness for all Initiatives ideas about cake shops and their clientele can be found for the hot topics in the Religious Discrimination Bill discussions – jobs, what people can say, and where things can be said.