Free Religion and Free Speech

When does "free exercise of religion" constitute a license to discriminate? When does the public's interest in reducing discrimination justify curtailing religious freedom? To think this through, consider these 10 hypothetical cases.

Case #1: Plaintiffs claim employment discrimination, that they were not hired because they eat beef. Defendant, the owner of the factory, acknowledges his company's explicit policy is not to hire beef eaters. Defendant, a lifelong Hindu whose commitment to his faith is sincere and energetic, claims that being required to hire beef eaters is 'forced speech' since hiring them would be approving of what they do -- and approving of beef eating would be a violation of his faith.

Case #2: Just like case #1, except that Defendant is a Hindu landlord refusing to rent housing to beef eaters on the grounds that this would be approving of actions of which his religion requires disapproval.

My answer: In both cases, Plaintiff is right. Hiring someone does NOT, in fact, imply approval of their personal, off-the-job, behavior, nor does renting to someone imply approval of what they do, so it isn't forced speech. (Employers may choose to limit what foods are offered in the company cafeteria, but if any employees are allowed to "brown bag" their lunches, then beef items in the lunch may be prohibited only if they can be shown to be disruptive in the workplace -- not on grounds of 'forced speech' approving them.) Moreover, the state has a compelling interest in constraining employment discrimination and housing discrimination. This interest outweighs all other considerations in these cases. (Obiter dicta: Plaintiffs should visit some CAFOs [Concentrated Animal Feeding Operations] to be aware of the horrible conditions the beef industry imposes upon sentient beings. They should also also read up on the tremendous water, land, and resource use the beef industry requires and the massive output of greenhouse gases from that industry.)

Case #3: Plaintiff Elaine sues Defendant Soup Nazi for unfair denial of service. (See Seinfeld, "The Soup Nazi," originally aired 1995 Nov.)

My answer: Defendant is right. Restauranteurs are allowed to establish their own procedures, and Elaine's denial of service is not based on her membership in a protected class.

Case #4: Plaintiff is a Yemeni national who sought to acquire a cake for a Houthi support party at his home. He claims unfair denial of service from Defendant, a baker. Defendant is Jewish and refused to make a cake with the requested words, "Death to Israel," on it.

My answer: Defendant is right. Bakers don't have to put words on cakes that they disagree with or find offensive. That really would be "forced speech."

Case #5: Defendant, a baker, is arrested for tax evasion. Baker made a cake to order from a customer who wanted the words on the cake to say, "Stop paying taxes. I don't pay mine." Zealous IRS attorneys argue that the baker, in choosing to write these words on the cake, has thereby expressed them -- and admitted to tax evasion.

My answer: Defendant is right. While bakers may refuse to make a cake with a message of which they disapprove, if they do choose to make the cake, they cannot be presumed by the law to have personally endorsed the sentiment (unless the sentiment constitutes hate speech -- see case #6)

Case #6: Defendant, a baker, has produced a cake at the request of a customer, a "Grand Titan" of a local KKK chapter. Customer requested, and the baker produced, a cake with the words "Get out of town, [racial slur]." Defendant agreed to produce the cake knowing the purpose to which it would be put. The cake was then presented in a mock "housewarming" to Plaintiff, an African American who was a new resident in what had previously been an all-white neighborhood. Plaintiff claims the cake is hate speech, and is suing both the individuals who brought the cake and the baker.

My answer: Plaintiff is right. "In law, hate speech is any speech, gesture or conduct, writing, or display which is forbidden because it may incite violence or prejudicial action against or by a protected individual or group, or because it disparages or intimidates a protected individual or group" (Wikipedia). Defendant knowingly participated in speech that disparages or intimidates a protected group

Case #7: Plaintiff, another Yemeni national seeking to acquire a cake for a different Houthi support party at his home, sues for denial of service. Plaintiff went to another Jewish baker to ask for a cake. Unlike case #4, however, Plaintiff did not ask for any words at all on the cake. Plaintiff mentioned what the cake was for, and Defendant then refused to make the cake. Defendant claims that his skill and artistry are distinctive -- that his cakes are instantly recognizable upon sight as being his because of his unique stylings. Moreover, Defendant notes, his cakes come in boxes and rest upon platters that clearly identify the bakery from which they originate. Defendant does not want his product associated with Houthi support.

My answer: Plaintiff is right. Bakers may decline to write requested messages on their products, but the presence of the product itself does not speak support for the context in which that product is used. Bakers may decline to endorse an idea, but may not discriminate in the sale of their services against people who may have that idea.

Case #8: Plaintiff is a same-sex couple seeking the officiating services of a Baptist minister to officiate at their wedding. Defendant is the Baptist minister who refuses to perform the wedding because he disapproves of same-sex marriage.

My answer: Defendant is right. The minister officiating at a wedding is endorsing the wedding. (Bakers and florists who provide accouterments for the wedding are not.) The minister may not be compelled to give an endorsement s/he does not want to give.

Case #9: Plaintiff is a same-sex couple seeking to get married at a nondenominational "wedding chapel" on the outskirts of Las Vegas. Defendant, the proprietor of the wedding chapel, denies service on the grounds that he does not approve of same-sex weddings. The wedding chapel neither performs nor hosts any religious services other than weddings.

My answer: Plaintiff is right in part, and Defendant is right in part. The key distinction between case #9 and case #8 is that the wedding chapel is, in fact, not a religious institution. It is simply a business -- its business happens to be doing weddings. As such, these wedding chapels may not discriminate. However, the proprietor himself is not required to officiate (for the same reason that Baptist minister in case #8 cannot be compelled to officiate). If the couple provides their own officiant (which, in Nevada, may be any notary public who has also obtained a Certificate of Authority to Solemnize Marriages, or any minister, religious official, or military chaplain), the space and other services of the wedding chapel may not be denied.

Case #10: Plaintiff is a same-sex couple wanting to rent the sanctuary of Defendant, a Baptist church, for holding their wedding. Defendant regularly and frequently rents its sanctuary to the general public. It also advertises on its website the rental availability of its sanctuary for weddings. The church, however, denies Plaintiff's rental application on the grounds that church by-laws prohibit use of the church's space for same-sex weddings. The church's by-laws, in fact, forbid the rental of its building, in whole or in part, to groups, organizations, or individuals whose evident purpose in using the space is inconsistent with the church's mission. The by-laws then list "promoting or fostering socialism, atheism, or homosexuality" as examples of purposes inconsistent with the church's mission.

My answer: Defendant is right. Unlike the Vegas wedding chapel, this is an actual religious institution, and this exercise of its religious freedom to adhere to the principles in which it believes is within its rights under the free exercise clause of the First Amendment.


Proprieters of restaurants or bakeries enjoy a number of rights. They may deny service to unruly customers, or to any customer that doesn't follow a set procedure for ordering. They may decline to produce messages they don't like -- or they may choose to produce such messages, as long as the message isn't hate speech, without bearing responsibility for the opinion expressed.

They may not, however, deny service on the the basis that service signals approval when, in fact, the service does not signal approval. Does hiring a person indicate approval of the person's particular or general non-work-related habits? No. Does renting housing to a person indicate approval of the person's particular or general habits? No. Does producing and selling a cake (with no message on it, or with only a generic message like "Congratulations") indicate approval of the context in which it will be displayed or eaten? No.

Does officiating at a wedding signal the endorsement of that wedding by the individual officiant? Yes. This is true whether the officiant is ordained clergy whose officiating is primarily a matter of carrying out religious duties, or a notary public whose officiating is primarily a business. Thus these agents, entirely at their own discretion, may decline to provide officiating services as they choose.

Does providing space for a wedding indicate endorsement of that wedding? If the provider is a business, it does not. Such businesses must provide the service of their space fairly and without discrimination. If, however, the space in question is owned by a religious community whose home includes that space, that community is allowed to choose not to provide its space for weddings of which they disapprove.

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Disclaimer: All cases are, as far as the author knows, hypothetical. Opinions expressed are the author's and may not be construed as legal advice.

1 comment:

  1. Well done. I had been on the fence about renting the sanctuary (case 10), but eventually I realized that the rationale I was laying out sided with the church. Glad to see you agree.

    An example you might want to borrow sometime: When I'm explaining why we need hate speech laws at all, I contrast two cases of "vandalism": In one, somebody spray-paints "Bob loves Mary" on a highway underpass. In another, somebody spray-paints swastikas on a synagogue. The physical actions are very similar, but the crimes are very different.