Michael Peppard is an assistant professor of theology at Fordham University.
In not too long, our entire country will probably sanction marriage equality. To same-sex partners, equal-protection laws say, “Let them eat cake.” The civil rights side of the issue appears settled. But the religious liberty side is less clear.
Here’s a question to help us explore it: What’s the difference between a cake baker and a photographer?
Much of the public discourse about same-sex couples has focused on the cake baker. Commentators in USA Today and Christianity Today, as well as on cable news, have asked whether Jesus would bake the cake for a gay wedding. Since providing a cake bears some resemblance to serving a customer at a lunch counter, this framing calls to mind analogies from the civil rights movement.
Religious arguments were used for centuries to justify discrimination, so most people are inclined not to grant a religious exemption for discrimination against gay men and lesbians. This firm anti-discrimination position is compelling and patriotic, and such arguments already have persuaded most Americans.
We know that in a polity typified by pluralism, elected leaders must do whatever possible to neutralize threats of factionalism to our union. The Arizona measure that Gov. Jan Brewer (R) recently vetoed, for example, was too broad and had too many potential consequences.
This doesn’t mean, however, that opponents of such proposed laws have everything figured out. Grievances of conscience must still be considered and possibly accommodated.
Which brings us to the wedding photographer. In 2008 the New Mexico Supreme Court ruled that Elaine and Jonathan Huguenin violated the state’s anti-discrimination law by refusing to work as photographers for a gay couple. Once the Huguenins entered the “smaller, more focused world of the marketplace, of commerce, of public accommodation,” the court decided, the law overrules their conscience.
Yet anyone familiar with weddings knows that the photographer is often more involved in the ceremony than the baker is. In some weddings, the photographer is a kind of supplementary liturgist for the ceremony: orchestrating participants’ movements, suggesting placements of the couple, encouraging romantic gestures, walking in front of them down the aisle and spending precious moments alone with the couple. Some photographers are next to the altar or under the chuppah.
We may need more reflection on what the law could force a citizen to do at a wedding or other religious ritual. The argument doesn’t have to slide down a slippery slope. One could imagine several footholds: Can the state compel someone, under anti-discrimination law, to assist in orchestrating the movements of another’s religious ritual? Perhaps the state can compel a photographer only to document the event but not to offer guidance in its execution? Or maybe the state can compel one to serve at a civil ceremony but not one sanctioned by a religious officiant?
The New Mexico Supreme Court ruled that the photographers’ abiding by public accommodation law is “the price of citizenship.” But U.S. history, which juxtaposes firm anti-discrimination laws and a robust religious liberty tradition, has shown that the price of citizenship is drawing distinctions: finding footholds on supposedly slippery slopes.
Who can use peyote and when? Employment Division v. Smith. Can federal money pay for abortions? The Hyde Amendment. Can one religiously object to paying Social Security taxes? U.S. v. Lee. Can religious pacifism excuse a foundry worker from manufacturing weapons? Thomas v. Review Board.
Asking and answering these questions has been essential to Americans’ governance. Some civil rights are limited; some religious consciences are infringed. We may or may not decide, in the end, that baking a cake and photographing a wedding are sufficiently different interactions with the event to suggest anti-discrimination protections for one and conscience protections for the other. But the process of making such decisions is worth the effort.
Doing so need not entail an apocalyptic war of religion vs. state-sponsored secularism. Rather, we would continue to tinker with a delicate balance. In terms of religious pluralism, the American experiment remains unique, with more diversity in Washington or New York — or even just one of its wards or boroughs — than in most countries. Fashioning social order out of such variety is not a process to be taken for granted. The more civil rights expand and deepen, the more carefully responsibilities must be negotiated and articulated. E pluribus unum is ever fragile.
Drawing distinctions to maintain a precise balance of religious conscience protections and publicly accommodated civil rights is neither a sign of fastidious hairsplitting nor a distraction from prophetically proclaimed truths on either side. Rather, it is necessary to preserve and perfect our experiment in diversity.