There is a battle going on between religious organizations claiming that they have a right to deny service to LGBT individuals based on their religious beliefs. Without getting into the ugly hypocrisy and the motives behind this "conservative" drive citing religious accommodation as justification for what is so clearly bigotry and unlawful discrimination, the TV show 'the Good Wife" sets up a mock trial that introduces many of the nuanced arguments that are likely to be addressed in the legal decisions yet to come.
HuffPo writes up some of the details on the Indiana pizzeria that refused to cater weddings of same-sex couples. Jeff Fallon @ the Daily Beast takes note that the timing of the episode which was written and filmed before the latest controversy hit the MSM and writes up a brief summery of the episode:
Diane is hired to defend the plaintiff in a mock trial by a conservative businessman named R.D. (Oliver Platt), who is actually funding the defense of the wedding planner. He loves a worthy adversary and thinks Diane is the perfect person to rip his side to shreds and expose how weak or strong his case actually is. The beauty of the episode—and the mock trial—is that it's not a shamelessly one-sided damnation of the religious and a screed in support of gay marriage at all costs. It’s more nuanced than many dramas dare to be with such hot-button social issues, trying to pinpoint where religious freedom ends and anti-discrimination laws begin.
One recent issue of refusing to bake a wedding cake seems pretty clear cut. The discrimination obvious. Yet proving discrimination when a wedding planner who refuses to provide service to same sex couples is getting into more complicated legal terrain and because of that, becomes the choice of the billionaire championing the RFRA movement and his financing of a RFRA wedding planner's defense
Note: In each link to CBS I've entered the minute/second mark of this full version of season 6 episode 18 where the scenes of the mock trial are shown. Hopefully the links will open to the beginning of each scene as it did for me.
Also; Diane Lockhart (played by (Christine Baranski)) is advocating for the LGBT couple/plaintiff. Conservative businessman R.D. (Oliver Platt) id funding the defense of the wedding planner who is citing "religious freedom" as defense against charges of discrimination.
Also too; to keep things simple I named all the RFRA lawyers besides R.D. arguing in favor of RFRA as simply RFRA
Here is the transcript of the scenes and arguments presented:
@minute 05:59
R.D.: "ah yeah..(smiles) brave soul. Welcome to the Plenary [sp?] Institute.
Diane (smiling): "How am I brave?"
R.D.: "..liberal lawyer in this lion's den of conservatism.."
Diane: "A lion's den is perfectly safe when you have God on your side"
RFRA: "Ah, there she is quoting the Bible. Diane (greeting)
R.D.: "May I Introduce Max Gauls, Cole-Harberts-Greyson?
Diane: "nice to meet you"
R.D.: "Justin Partridge of Simkins-Wilde"
RFRA (Justin P.): "So nice to meet you."
R.D.: "Diane , have a seat right over here."
Diane: "okay. so what am I doing?"
R.D.: "Aside from picking up your retainer check? I need a liberal viewpoint."
Diane: "On?"
R.D.: "Gay Marriage. You're the Devil's advocate."
Diane: "In what way?"
R.D.: "We're trying to decide whether to fund a case on gay marriage and religious accommodation."
Diane: "And what is the case?"
RFRA: "In may of 2014, Jane Armisen, a baker in California was asked to bake a cake for a gay wedding. She refused citing religious objections to supporting gay marriage and was sued for discrimination.
R.D. "she lost.."
Diane: "..and you're wondering whether to take up this appeal?"
R.D.: "Yup."
Diane: "No. Obviously.."
R.D.: "Well that's not surprising"
Diane: "Well.. it's not because I'm a liberal. It's because you won't win. I mean this was a plain wedding cake? There was nothing about the cake itself that was offensive to the baker?"
RFRA: "that's correct. It's the fact that it would have been used in a ceremony she believes dishonors her religious creed."
Diane: "But this baker advertises to the publican that she makes these wedding cakes, and she will sell these cakes to anyone, just not gay people. I'm sorry, but that's not a strong case"
RFRA: "Well the constitution guarantees her the free exercise of religion."
Diane: "And California's Civil Rights Act forbids discrimination against LGBT people."
R.D. (Reese): "So we have two competing freedoms. Businesses are allowed to refuse service to anyone"
Diane: "..with certain exceptions to that right. It cannot be based on race, color, religion or sexual orientation."
R.D.: "In some states, sexual orientation."
Diane: "In many states"
R.D.: "Well, but there are exceptions to the exceptions. What did Thomas Jefferson say? 'among the most inestimable of our blessings is that of liberty to worship our creator in a way we think would be agreeable to him'"
RFRA: "It's no different from conscientious objections to war"
Diane: "I'm sorry to be blunt, I know you come to your opinions honestly.."
RFRA:" Well it's not just my opinion. the Religious freedom restoration Act allows exceptions in anti-discrimination laws"
Diane: "Not in California. California does not have one"
R.D.: "Well let's say we're not in California. Let's say we're in Colorado. "
Diane: "Okay, well we're not in Colorado, but RFRA would not be your friend there either."
RFRA: "So let's say it's in New Mexico."
Diane: "It doesn't matter. The bakers refusing to sell a wedding cake to a gay couple for who they are. That is the heart of discrimination."
R.D.(Reese): "What if our baker won't sell a wedding cake to a gay couple, but he will sell them bear claws? cupcakes?
RFRA: "that's right. She isn't in fact refusing to serve homosexuals. She just won't do the one thing her religion says is a sin."
Diane: "Okay, that's a good point"
[Diane is not really challenged and all that interested at this point]
R.D.: "Great, let's take a little break"
[R.D. is disappointed at Diane's conceding an easy point without much enthusiastic challenging. Challenging and crushing her opponents which she is renowned for. So R.D. takes Diane aside for a private one on one]
R.D.: "So.. um, where's Diane Lockhart?"
Diane: "I'm sorry?"
R.D.: "That's a good point?"
Diane: "It was a good point."
R.D.: "No it wasn't. You know it wasn't"
Diane: "Well you wanted me to help."
R.D.: No. I want you to fight. I want you to convince me this is a loser case. If you worried about offending me - Don't. I have a gay nephew okay? Love my gay nephew. Want him to be happy. I just don't happen to believe in gay marriage. You do. Convince me I'm wrong. Go for the jugular."
Diane: "go for the jugular?"
R.D.: "mmm..Right there ma'am. Right there (pointing to his throat)
[R.D. and Diane rejoin the other right wing lawyers]
Diane: "That's insane. Selling someone something they don't want is the same thing as refusing them service altogether."
RFRA: "No it isn't. You can't even compare.."
Diane: "A vegetarian couple walks into a market, and you refuse to sell them vegetables. In fact you'll sell them anything but vegetables. You are effectively denying them service. A gay couple wants to buy a wedding cake, and you refuse to sell then a wedding cake.
@minute 12:05:
Diane: "You're saying that a Hindu or a Muslim can enter a bake shop.."
RFRA: "..no that isn't comparable.."
Diane: "..Yes it is. They're both protected classes. A Hindu can enter a bake shop and be denied a wedding cake..."
RFRA: "..No, no because that is a denial of a class of people."
Diane: "Exactly. Like gays."
RFRA: "No, that is the denial of an activity. Of the marriage.."
Diane: "..which is just a pretext for discrimination."
R.D.: "What if it weren't a blank wedding cake?
Diane: "yes but that's not what happened"
R.D.: "I know that. I'm trying to determine where religious freedom ends and anti-discrimination laws begin. What if Jane were asked to attach a figurine of two men holding hands? Could she deny that service?"
Diane: "If she's offering the service of supplying figurines, then no, she cannot deny that service."
RFRA: "What if she's asked to write on the cake 'Congratulations Roger and Carl'? Can she deny that because it's speech she doesn't approve of..'
Diane: "..Well now we come around to the free speech argument"
R.D.: 'Well you knew we were gonna end up there..."
Diane: .."Okay well, here's the thing. It's not her speech. It's the speech of the person purchasing the service. I mean imagine if she is a printer and a gay person comes in needing flyers. She cannot reject his business, even thought the flyer may be advertising an LGBT meeting, because to reject him is to discriminate based on sexual preference"
RFRA: "Just as one can't discriminate based on religion.
Diane: "Exactly"
RFRA: "So if a Christian walks into a cake shop and orders a cake that says 'God sends gays to Hell', does the baker have to write that on the wedding cake even if she doesn't approve of it?"
Diane: "No"
RFRA: "..Because you find it offensive?"
Diane: "No. Because the baker is not objecting to a religion, but a point of view. A hateful one at that"
RFRA: "But the purchaser finds it essential to his or her faith. I mean isn't the Christian a protected class, with the same protections as gays?
@ minute 17:32 [This is where R.D. Reese played by Oliver Platt) gets to the more complicated part. The wedding planner approach to discrimination. He's found his wedge issue]
R.D. (Reese): "What about a uh, say wedding planner?'
RFRA: "It's first amendment, it's personal services, it's, it's religious freedoms all rolled into one isn't it?"
Diane: "Yes you would arguably have a better case with a wedding planner because of the burden on her. Her time commitment, her level of creativity, the list of her personal contacts. Yes that would be a harder case for me to win."
R.D.: "Great."
@ minute 24:57 [The Mock Trial. Diane's job is to crush the RFRA wedding planner, but she has a surprise for R.D.:
So shrewdly, Diane casts that gay nephew (played by Wesley Taylor) as the plaintiff in the mock trial, for Platt’s R.D. to watch as the lawyers he hired tell him his love doesn’t deserve unequivocal legal protection.
Diane questions the RFRA wedding planner (Ms. Dahl) who refuses services to gay couple: " So Ms. Dahl, you've been a wedding planner for 12 years, is that correct?"
Ms. Dahl (RFRA wedding planner): "Yes"
Diane: "And in al that time you have never been approached about doing a gay wedding before?"
Ms. Dahl: "Never, of course there's a homosexual community in Pocatello, and my very favorite florist is gay."
Diane: "But you are aware that gay marriage has been legal in Idaho since October of 2014?"
Ms. Dahl: "I'm aware it's legal, yes. Abortion is legal too. It doesn't mean I have to agree with it"
Diane: "But you have to follow the law."
Ms. Dahl: "I-I'm not stopping anyone from getting married. I just don't want to be the one to plan their wedding. That's all. I-I'm helping two people seal their commitment to one another before the world and before God. I can't do that if I don't believe in it."
Diane: "Ms. Dahl, how many times did, um, Jesus condemn homosexuality?"
RFRA: "Objection, relevance.."
Judge: "She's claiming religion is the basis of her refusal counselor. I fail to see how the specifics of that religion could not be relevant."
Ms. Dahl: "Um, Jesus never condemned homosexuality>"
Diane: "And how many times did Jesus condemn divorce?"
Ms. Dahl: "Three times. Four times... if you count Mathew and Mark's account of the same incident"
Diane: "Thank you. So you've never planned a wedding for a couple that had previously been married?"
Ms. Dahl: "Um..I haven't asked. I...I guess I have."
Diane: "..Well in fact, you have planned two wedding in the last year alone where one or both of the couple had previously been married."
Ms. Dahl: "That sounds right."
Diane: "So your religious objection is selective, at best wouldn't you say?..
RFRA: "Objection. argumentative."
Judge: "sustained"
Diane: "No more questions"
@ minute 29:41 [Diane questions the plaintiff Mr. Anderson/Nils, playing the role of R.D.'s gay nephew. R.D. (Reece) is not happy, but he old "Diane to go for the jugular" to test the weaknesses of the "religious freedom" Act for the wedding planner defense he is planning to fund]
Diane: "Mr. Anderson may I call you Nils? (Nils nods yes) You're my clients husband is that correct?"
Nils: "For the purposes of these proceedings, yes, I am."
Judge (Soloman): "We understand you're playing a part here. Mr. uh..
Nils: "My real names is Todd."
Judge: "Fine, just answer Ms. Lockhart's (Diane Lockhart) questions as if you were actually Nils Anderson, go ahead"
Diane: "So you're Mr. Taylor's husband?
Nils: "I am. We were married in January."
Diane: "Mm..I'd like to talk to you about the day you were turned away from Ms. Dahl for being gay."
RFRA: "Objection, misstates the facts. Ms. Dahl didn't turn them away for being gay. She simply did not want to participate in their wedding."
Judge: "Sustained, but barely"
Diane: "Mr. Anderson please tell us how it felt to be turned away."
Nils: "It felt like crap frankly."
Diane: "And was this the first time you'd been turned away from a business because of someone's religious objections?"
Nils: "No it happens a lot."
Diane: "And so then why sue Ms. Dahl and not anyone else?"
Nils: "I guess it was the straw that broke the camel's back. Sometimes that's the way it feels ,you know. You feel like a second-class citizen and especially in a town like Pocatello 'cause it's so small.
Diane: "In a town that small was it easy to find another wedding planner?"
Nils: "No. there are only three, maybe..maybe 5 or 6 if you count nearby towns. They were all booked."
Diane: "And if Ms. Dahl has simply told you she was booked.."
Todd (playing Nils): "I would have understood. I guess that would have been a lie but it would have hurt less, it would have been better than the truth"
Diane: "Do you feel that you have suffered economic harm do to Ms. Dahl turning you away?"
Todd(Nils): Yes, we had to go all the way to Boise to find a wedding planner. That's 200 miles. We had to make that drive four times"
R.D.: " Your honor could I request a brief recess before we cross?"
Judge: "Well of course"
R.D. (RFRA money man) has just realized that Diane cast R.D.'s gay nephew as the lover. He asked Diane to be very tough. She does. She brings the reality of the "religious freedom" discrimination home to him and family. R.D. is pissed
Diane: "you said to go for the jugular"
@ minute 32:36
R.D.: "Did you not believe me when I told you I loved my nephew?"
Diane: " No, I did. That's why I approached him."
R.D.: "I'm not paying you to stage a family therapy session. I'm not paying you to use my relative."
Diane: "I'm not using him. He wanted to participate."
R.D.: "I'm paying you to act professionally.."
Diane: "You told me to go for the jugular..You told me to get personal.."
R.D.; "This is more than personal. this is an insult Diane."
Diane: "I'm sorry, sir, but if you want me to decide on gay marriage you have to see who its impacting and it can't be an actor."
R.D.: [scoffs -pissed off walks away saying] "So finish what you've started"
@ minute 39:49 [the ruling]
Judge: "Well you've given this old con law professor a lot to think about. On the one hand people have a right to their religious views, and they cannot and should not be barred from the marketplace because of them. On the other hand every citizen has the right not to be discriminated against on the basis of their race, their color, their nationality, and yes their sexual orientation. Well. given all that, my task is difficult but clear: I must weigh whether or not a religious accommodation would frustrate the core purpose of antidiscrimination law. And in this case, I find that it would.
Accordingly I must rule in favor of the plaintiffs, Mr. Taylor and Mr. Anderson.
R.D.: "Diane, can I ask you something? What do you think would happen if every case were adjudicated by someone with a family member or loved one who'd be affected by the decision?
Diane: "Ultimately, perhaps every case is."
R.D.: "But isn't the law supposed to be impersonal? In the sense that it should be the same for everyone? You know, otherwise we're in China, right? Everything's determined by who you know."
Diane: "The law is supposed to be fair. Not impersonal. In fact I would argue that the law is always personal. It has to see the human side too. Or else it's meaningless."
It would be nice if this was - THE END
Diane: "You're going to fund this defense [RFRA] anyway aren't you? the wedding planner?"
R.D.: "Yes"
Diane: "Why?"
R.D.: "Three years ago Barack Obama was against gay marriage. So was Bill Clinton. So was Hillary. Y-You know basically every Democratic icon was lined up against gay marriage. Now they're not, You know? Because it's politically expedient for them not to be. Who knows what they're gonna be for or against in another three years, right?
I like people who stand by their opinions. I like people who stand by their beliefs. And I think a religious accommodation must be made for people who do that. You know? It's the right thing to do."
- the end
# # #
So zero lessons learned by the billionaire RFRA funder R.D. except how to cause more pain by testing the strength of the most vulnerable part of the arguments against him and his kind. Maybe that test will ultimately strengthen the arguments against the discriminatory RFRA speeding up it's defeat. Hopefully they will since, at least for now, these hypocritical bigots seem to find dogma is less scary than learning, even when it hurts their own families
And the billionaire R.D. - (Reese played by Oliver Platt) has it backwards and blames others for what he and his kind cause. It wasn't that beliefs changed about marriage equality overnight. Many people believed that marriage equality was long overdue. Politicians hadn't caught up with the people. It's the billionaires like R.D. that threaten, not unlike the NRA, scoring Politicians and threatening a high financed $$ primary challenge to any politician that dares cross him that keep the 'will of the people' lagging way behind what their elected representatives are willing to do
But as far as the show goes, "The Good wife" did bring up some good ideas about how the religious arguments may play out
note: the @ minute times are correct, but the hyper links do not go to the times I wrote down. Commercials and such goofed up the works and my limited typing skills caused me a headache so I ain't gonna fix it - and yes this Diary is too long - things got away from me before I knew it - sorry