For the first entry in our new series, Civil Discourse, Sarasota Magazine Editorial Director Pam Daniel and Contributing Editor Bob Plunket sat down in January with state Rep. Julio Gonzalez, R-Venice, and Ken Shelin, an advocate for LGBT rights, to discuss Gonzalez's proposed “Religious Freedom Bill,” which would allow Floridians to refuse to provide services to customers if they object on religious or moral grounds. One of Gonzalez's stipulations for the discussion was that the entire transcript be posted online. You can read the entire conversation below. If you'd prefer to read a condensed version of the transcript, click here.
PAM DANIEL: So you guys have met.
KEN SHELIN AND JULIO GONZALEZ: Yes, we have.
DANIEL: So, Rep. Gonzalez, we’re here as you know to discuss the Religious Freedom Protection law that you’ve proposed. Obviously, you support it, and Mr. Shelin opposes it. Even though you are both a part on this, our whole premise is that you have a lot in common. You both have successful, accomplished careers. I don’t know if you know that Rep. Gonzales is not only a surgeon, he’s an attorney now.
SHELIN: I do.
DANIEL: And you worked, I’m trying to remember…
SHELIN: The Food and Drug administration for 34 years in the field enforcement part of the agency. So, we were where the rubber meets the road. I’ve even prosecuted physicians.
GONZALEZ: Well, hopefully I won’t be tempting anybody into prosecuting me in the near future.
DANIEL: No Food and Drug violations will happen during this interview.
SHELIN: I mentioned to him earlier that I did consulting for pharmaceutical firms worldwide for 10 years after I retired from the FDA. After I moved here.
DANIEL: And you both cared enough about your communities to volunteer for the often thankless job of public service. Your constituents evidently believe that you would do a good job; you were both elected. Also, you’re both, I know, devoted family men with kids and a wife and a partner that you both care very much about. I feel there is some common ground there. The other thing I hear from all reports is you’re both very outgoing and affable. You’re actually nice guys. So, you seemed like a good choice for us to start this with.
SHELIN: I don’t think Bob Plunket said that, though.
DANIEL: Bob, you introduced yourself, right? Bob Plunket is a contributing editor. He is here because he is very good, better than I am, at keeping discussions on track and getting to the heart of things. So, he’s allowed to ask questions or interrupt if we go too far afield.
Our whole idea in doing this, and I’m sure you’re probably aware of this and feel the way we do, is that politically we are in such a shrill and divisive age. People, especially right now with the presidential election as we’re seeing it, will really say shocking, uncivil, unkind things to each other.
Our hope is that, even when we passionately disagree, we can do it in a civil way. We can actually hear what the other person is saying and maybe find some common ground. So you’re our test case. This may work; it may not work. We haven’t done it before. We just wanted to bring two people together, and I do have some questions to start us off. I’m hoping it will turn into a real conversation. We’re recording it. If we feel like we have enough at the end, it will be in the magazine and we’ll put this online as well. If we don’t feel we’re being brilliant and it doesn’t work, that’s OK. We’re just trying it out to see what happens.
So let me just start by summarizing H.B. 401, the bill in question. Feel free to correct me if I have gotten something wrong here. The Religious Freedom Protection Bill states that, “Individuals, businesses with five or fewer owners, religious institutions and businesses operated by religious institutions are not required to produce, create or deliver a product or service to a customer if they have a religious or moral objection.” My understanding is this would include health care providers (except in a case of emergency or threat to life), adoption agencies who could refuse to place a child with someone they object to on moral or religious grounds, as well as businesses. And again, I’m hoping we won’t just be point-counter point arguing, but actually discuss. It seems like we should start with you, and you can talk about why you felt this bill was needed.
GONZALEZ: There’s a lot of different angles to this bill. It is not simply a bill dealing with same-sex marriage, the relationship between same-sex marriage couples, and other individuals and vice versa. I think that the bill is needed because the status of same-sex marriage and same-sex couples has changed from last session in 2015 to this one, and I think that has caused a difference in the legal relationship that we all have. I think one of the guiding principles of our country, and one of the things that we all hold dear, is the protection of our rights of conscience and our religious freedoms. The last thing I would like to see is the state, the government, coercing people into participating and doing activities that go against their religion. Being that the legal situation had been in such flux, and being that there are at least two cases in other states where people have been either compelled or punished for not participating in activities that they felt were against their religious convictions, I felt that it was the appropriate place of the Legislature to discuss this situation, to discuss this impasse of conflicting rights and to craft some sort of answer that we could all use to make sure that we all know where our rights are and that we are protected in our relationships with each other.
It was really as simple as that. I’ll go one step further to say that I think, whether the Legislature does this or not, there’s still going to be a law that’s going to be created because, sooner or later, as time goes on, the courts are going to comment on this type of situation in various areas of life, whether is be the small business, the health care worker or the adoption agency. I think that what’s going to end up anyway is that we’re going to have a law, or a series of laws, that’s going to address this issue one way or the other. I for one would rather see that law addressed and created by the Legislature under the pressure of the people, discussing and trying to influence their representatives, than I would in the courts. That, essentially, was the impetus of my bill and my hope of what will transpire as a result of it.
DANIEL: Maybe I shouldn’t be asking all the questions. Maybe we should try to get you guys to try and talk together, and then I can come in with occasional questions.
SHELIN: I would like to make a preamble statement to put the whole issue in context. It goes back to the very beginning of this country and the Declaration of Independence, which says that, “All men are created equal.” It’s been a struggle since 1776 through 1787 when the Constitution was adopted, to give meaning and substance to that word “equal.” In fact, the time the country was created, at the time the Constitution was adopted, slavery was not abolished. We had African-Americans, and some white people, who were slaves. That continued, and it took a Civil War to get rid of slavery, which treated people unequally.
The same thing happened to women. Women could not own property, they could not make decisions for themselves, they were essentially the property of their husbands. They could not vote in this country until the earliest part of the 20th century. Women were not treated equally.
Here we go, it’s over 125 years already, and we’re struggling with this issue of equality. We went through the 1960s with education for African-Americans versus whites. I grew up in the state of Delaware, and we had separate school systems for African-Americans and for white students. They were treated unequally. They didn’t get the same quality education that we got. Now we’re faced with the LGBT community trying to get its civil rights, too, and give meaning to that word “equality.” So here we are 225, or 40 years later, still trying to give meaning to this word “equal” and “equality.” We’re not there yet. It’s going to continue because our understanding of the meaning of that word grows. It grows in depth. As we eliminate one problem of inequality, we become aware in our society as we look around that there are other “inequalities” operating within our society that prevents us from reaching our full potential. But, in the Constitution and the Bill of Rights is the First Amendment, which says that the Congress shall make no laws affecting religion. The Supreme Court decision in June didn’t change that at all. It didn’t force any religious person, any religious clergy, to marry people they didn’t want to marry. My son just got married two years ago to a Catholic woman. He’s not Catholic. He could not get married in her home parish because he was not Catholic. That is OK. That hasn’t changed. The issue of religious restoration and of religious freedom has not been affected by any Supreme Court decision. Particularly the marriage equality decision. It has not forced any restrictions on any clergy or religious practice, and will not change anything.
Now it does affect those people who are public servants because those public servants have sworn to uphold the Constitution. If you have sworn as a public servant to uphold the Constitution, that means you have to adhere to the provisions of the Constitution, which says that everyone has to be treated equally. This bill does not treat people equally. It allows people to be treated differently, not just by clergy, but by anybody. That’s not fair. It’s unnecessary because no Supreme Court, district court or appellate court decision has changed the meaning of the Constitution. No clergy has had any restriction placed on them. So therefore it’s probably also unconstitutional, this bill, which means that it is probably going to lead to a lot of lawsuits if it’s adopted. That would be unfair to the taxpayers of the state of Florida because that means they’re gonna pay the bill. They shouldn’t have to pay the bill for something that’s unnecessary and unconstitutional.
GONZALEZ: Let’s talk about the First Amendment, because I totally agree with the intent of the First Amendment. At least with regards to the establishment of religion clause and the Freedom of Worship clause. At the foundation of our country, the whole discussion that led to the passage of the First Amendment and the inclusion of the religious liberty language was this great importance that the Founding Fathers placed on not forcing or coercing individuals into participating in religious activities with which they felt were against their religion. Part of that included the fact that our country was not, at least the federal government… the states were allowed to establish churches and state sects if they wanted to. The federal government was prohibited from doing that as part of the original plan, and that was part of the reason why the First Amendment was adopted.
In the run up to the passage of the Constitution, and, inevitably, of the Bill of Rights, there was an incredible discussion that took place in the Virginia Assembly. James Madison was there, Jefferson was there, George Mason was there, and Patrick Henry was there. It was a very fascinating discussion about religious freedom. It led to the passage of Jefferson’s Religious Freedom Bill. It also led to the inclusion of George Mason’s Bill of Rights. The overarching principle that all four men talked about in that discussion was the fact that they did not want to see a country, and in that case they were talking about the state of Virginia, where the individual was forced by the state to participate in activities that were against his or her religion. They talked about whether Christianity should be made the official state religion, and if they should somehow carve out an umbrella provision for Christianity. Even Madison and Jefferson were against that, but the whole premise was they did not want any coercion.
Now, how does that interplay with your equality discussion, with which I’m in complete agreement of, that the goal of our country has always been to provide equality for all citizens under the law? I think that they place where the two intersect… the issue of same-sex couples. There was a struggle, and it was a multi-decade struggle, by same-sex couples to have the right of being recognized as a legal entity, as a civil marriage. That, I think, is the struggle for equality. I think they achieved that this year when the Supreme Court ruled that all states were to recognize same-sex couples. However, I think now that the discussion is different. Now the discussion is not about equality because I think we’ve all seen that equality, in terms of at least marriage, has been recognized. The question now is, “Can I force you to recognize my activity even though you believe it’s against your religion?” I think that’s where we cross the line from your concept and your discussion about equality, which is absolutely appropriate, to the concept that the Founding Fathers were talking about with undue coercion. You talk about how there hasn’t been any clergy infringed in things of that nature, I agree with that. But, in the cases of New Mexico and Colorado, we had individuals who felt it was against their religious conviction to participate in any way in support of a gay marriage.
DANIEL: Be specific so readers can picture this.
SHELIN: Were these public employees?
GONZALEZ: No, they were private employees. I can discuss that a little bit further.
SHELIN: Were they private employees performing a public service?
GONZALEZ: One was in Colorado and the other one was in New Mexico. One was a baker, and the other one was a photographer. In both cases, a same-sex couple approached them with the request that they apply their artistic services in support of a wedding. Both businesses were privately owned. I think they were single-person-owned entities. They weren’t a part of a big establishment, like Walmart or so forth. In both cases, they refused. They refused because it was against their religion. They did not refuse because they were discriminating against same-sex couples, homosexuals or anything of that nature. In the case of the baker, the customer was a repeat customer. My understanding from reading the case is that he told the same-sex couple that they were welcome to come in the store whenever they wanted and that he would absolutely take care of them in any way that he could. He did not want, because it was against his religious convictions, to participate or support a wedding of same-sex couples because, in his belief, it was against his religion. So what ended up happening is they went to court, and in both cases they won.
DANIEL: So they won both of those cases?
GONZALEZ: The same-sex couple prevailed. Essentially, what I see there is that we have gotten in a situation where there is a religious conviction against an activity, and we have used the court to compel those individuals to participate in that religiously offensive activity to them. If they didn’t, we have punished them for doing so. I think that is completely contrary to those principles I elucidated at the beginning, and I think that we’re talking about not respecting people.
SHELIN: I was talking about clergy.
BOB PLUNKET: I understand that totally, but I don’t think it’s very clear. Why do you think that’s not a valid situation?
DANIEL: Can you identify with people wanting the right to practice their religion?
SHELIN: They can’t practice their religion on me. That’s discrimination, and that’s the difference. If they have a religious belief, that’s up to them. They’re free to practice it in this country. We’ve protected that with the Constitution and the courts have traditionally protected people’s right to practice their religion. But, when you start interacting with other people, and, particularly if you’re in the public realm where you’re providing a product or a service to the public to anybody who comes to you, you can’t discriminate against them.
GONZALEZ: I’m going to disagree with you because in that situation what is happening, I think, is that it is the state who is forcing the religious belief of the same-sex couple onto the individual who’s trying to not participate.
SHELIN: It’s not a religious belief, it’s a civil right. It’s a constitutional issue. They’re being treated equally.
GONZALEZ: No, the religious belief is that marriage is rightfully, divinely... it’s a sacrament, it’s not even a legal contract…
SHELIN: In the church, but it’s also a civil procedure.
GONZALEZ: I understand that, but when this individual believes that…
DANIEL: We’re saying the service provider…
GONZALEZ: When the service provider believes that a marriage is rightfully, divinely or in any other way defined as a union between a man and woman, and anything other than that goes against his or her religious convictions, then for me to take the state and force him to compel, I think, is the state doing exactly what you don’t want it to do.
SHELIN: But what if it were a woman?
GONZALEZ: It doesn’t matter.
SHELIN: Wait a minute, it does matter because there are religions that say women do not have the same rights as men.
DANIEL: Wait, I’m not following, can you explain what you mean?
SHELIN: Well, in Saudi Arabia, for example. Until recently, women couldn’t even drive. They couldn’t get a driver’s license. They cannot own property. What if you have a Muslim in this country who practices a very conservative brand of Islam?
GONZALEZ: I will answer to you. In my view, if a Muslim, as an individual, is asked to make a cake for a baptism and he or she wants to say no, I think she should have all the right in the world to say no. So long as the collective number of individuals in the whole marketplace that are saying no is not sufficient to incur a significant burden on me, the consumer. Let me rephrase that a little bit. This goes to the crux of the issue. I think this is a balance of rights. It’s a balance of my right to live my life in peace knowing that I am at peace with my worship of my Lord. It’s also in balance with my right as a citizen to go to a store and get a cake. Let’s say we allow this provision to go through, and we find that maybe 1 or 2 percent of the total stores that are providing cakes or photography services would take this position. Then my position would be that there isn’t a sufficient enough compelling reason for the state to interfere with that small subgroup of society’s religious convictions, to force a different view upon them. If that subsegment of society was 40, 50, 60 percent, and then all of the sudden it becomes burdensome for me, a Christian, to get my baptismal cake done, or somebody else as a same-sex couple to get their services for their weddings, then I think that the state would have to take a different position.
DANIEL: So if you were the only photographer in an area, the state might say you have to provide this service?
GONZALEZ: There’s a number of things in my legislation that I think are bad. I think I need to mend it.
DANIEL: It’s a work in progress?
GONZALEZ: It’s definitely a work of progress. One of the beautiful things about our system is that I’ve gotten so much feedback, and I’m reading the language going, “Man, they’re right! I can’t allow this to continue.” When you go to committees and people debate it, you get some insights that way. One of the things I should have included is a scrivener's error, which is where there shouldn’t be any product. It should only be any custom product. If you look at the first part of the bill, I define a custom product. For example, if you go to buy a package of cookies and you’re openly gay, that is not an appropriate reason to withhold the service. If you want to buy a product that involves somebody’s custom service, artistic intervention, for the purpose… And that’s the other piece of information that I should have put in bill... for the purposes of supporting a religious activity, then I think the protection would pull through.
DANIEL: So could a conservative Muslim refuse to offer health care services to women who didn’t wear the headscarf? Anyone could have a passionately held belief, and it might even be bizarre or dangerous?
GONZALEZ: In the spirit of what I was doing, the answer is no. Whatever religious or denomination person who is trying to refuse health care based on something that is not a religious event or religious activity would not protect that.
SHELIN: But that’s not what you’re bill says.
GONZALEZ: I understand that.
SHELIN: It is so broadly written. It is so vague. In fact, you’re not only talking about religious conviction, you’re talking about moral beliefs and policies, whatever they are.
GONZALEZ: I agree. After looking at the bill, reviewing and listening to commentaries, I think I would remove the word “moral.” I would leave the word “religion.” You’re talking about the paragraph related to small business, artisans…
SHELIN: I’m talking about every paragraph in the bill.
GONZALEZ: The other paragraphs don’t mention that language.
SHELIN: You’ve had lots of opportunity to talk. Let me talk. Your bill repeatedly talks about religious convictions, moral convictions and policies. In every major section of the bill, you’re proposing not only to allow people to discriminate on the basis of religious belief, but on other issues just because they think so. Just because they have a bias.
GONZALEZ: I would scratch out “morality,” as I told you previously.
SHELIN: Well, conviction, what’s the difference?
GONZALEZ: “Moral conviction,” I would remove that.
SHELIN: Both words?
GONZALEZ: “Moral conviction?” I would remove “moral conviction.” I would not remove “religion.” I would remove the “policy” as well.
SHELIN: What about removing “religious conviction?” That’s still discrimination. That’s unequal treatment.
GONZALEZ: I think that the correction for that is not whether you say “religious conviction” or “religion” because… I’m not sure. I would have to think about “religious conviction” versus “religion” because I’m not sure what the implications of either of the two terms would be to the bill. But, I think the way to correct that problem is to tie it to a religious activity. In other words, I can’t tell you that I am not going to serve you…
SHELIN: So you’re saying you would only do it as a part of a liturgical procedure? A religious procedure? It couldn’t be a religious belief or conviction then that caused you to refuse to fill a prescription for Crixivan or something else for an HIV patient?
GONZALEZ: Absolutely not. Correct. I want to talk about that separately. We’re specifically talking about the part of the artisan and the small businessman and business woman. I think that part of the bill needs to be not "moral." Morality should be removed because it is too vague, like you say. “Policy” is interesting because I was like, “You know, 'policy.' Well, a business shouldn’t have religious policy."
SHELIN: And they shouldn’t have religious discrimination.
GONZALEZ: The only entity, person or legal that should have a religious conviction or religious belief is the actual, real person. I would remove the word “policy” from that. I really want to make sure that it has to be a religious conviction or a religiously offensive activity.
SHELIN: Wouldn’t this be chaotic because you have Christians, you have Jews, you have Muslims, you have Buddhists, you have Sikhs, you have Hindus. All have religious activities in this country. All of them have different beliefs. Wouldn’t it be chaotic?
GONZALEZ: I think that’s what makes it so wonderful.
SHELIN: No, because you have discrimination or all kinds and sorts.
GONZALEZ: No! First of all, it depends on what you’re talking about. For example, if I say that I’m not going to serve you because you’re wearing a plaid shirt…
SHELIN: Or because I’m a woman?
GONZALEZ: Or because you’re a woman? Well then that’s obviously discrimination.
SHELIN: But that’s a religious belief.
GONZALEZ: First of all, it’s been settled law. We have already in the books, and we have already countless Supreme Court cases dating back through the '50s and the turn of the century where it is not acceptable to base your discriminatory, partisan activity or position towards a customer or another person based on their gender. That’s not acceptable. Or based on their race. But that’s not what you’re asking.
SHELIN: What’s the difference?
GONZALEZ: The difference is that you’re not asking me…
SHELIN: The difference is that you’re face with a gay couple, and you’re willing to discriminate against a gay couple but not a…
GONZALEZ: No I’m not.
SHELIN: It is because you’re refusing to serve them.
GONZALEZ: No, I’m not refusing to serve them. What I’m telling you is what I am refusing to do is I’m refusing to participate in an activity that goes against my religion.
DANIEL: If you were to modify the bill, Ken, in a way that said it only applies to participation in religious activity, would you still object to it?
SHELIN: Absolutely, because it is discriminatory. It’s so vaguely written at this point, I’d have to see another draft of the bill. But, it is inherently discriminatory because it purports to treat a group of people differently based on religious belief and you cannot do that in the United States.
GONZALEZ: I see the present situation as inherently oppressive, and you cannot do that inside the United States.
SHELIN: What’s oppressive? Nobody’s making you do anything.
GONZALEZ: I’ve already told you. I’ve given you two Supreme Court cases. State Supreme Court cases, not federal. In both cases, the courts told them, “You must act against your religious convictions.” Period.
SHELIN: No, they’ve said, “You have to treat people the same no matter who they are.” That’s what the cases say. You’re changing the whole meaning of the decision.
GONZALEZ: I think it was they who changed the meaning of the question because I think what they did was…
SHELIN: It’s very simple. It’s equality. Everybody gets treated the same way.
GONZALEZ: Well, then, let’s treat everybody the same way. Let’s not coerce any religious individual into being forced to participate in any activity with which he doesn’t believe in.
SHELIN: Based on their religious activity they can discriminate.
GONZALEZ: They’re not discriminating. They’re just refusing to participate in any activity that’s against their religion.
PLUNKET: We’re getting in a rut. Clarify something for me: the Hobby Lobby decision by the Supreme Court. How does that apply to this?
SHELIN: It doesn’t.
GONZALEZ: It does, actually.
SHELIN: It doesn’t because it has a single owner.
GONZALEZ: No it doesn’t.
SHELIN: Yes it does. It’s because of the ownership.
GONZALEZ: The Hobby Lobby decision is exactly where I got the five owners from.
PLUNKET: Remind me what it said.
GONZALEZ: Right. I’ll get to that. So, what happened in Hobby Lobby was there was a suit where a faith-based organization, at least the owners of the organization, had significant religious convictions, and they were being tasked with providing products that allowed for services of abortion that were against their religious convictions.
DANIEL: You mean “morning-after” pills? Is that what it was?
GONZALEZ: I don’t know if it was only the “morning-after” pills or the insurance coverage…
DANIEL: Birth control?
GONZALEZ: Yeah. The point was that this product was against their religious convictions. They felt that they should not be forced or coerced into providing that product merely because they were a corporation. As it turns out, the corporation was owned by less than five corporate owners. The Supreme Court ruled in favor of Hobby Lobby. One of the factors that the Supreme Court considered was that they were a closely held corporation. If you go to the IRS rules, you’ll find that a “closely held corporation” is defined as one that has five or less members on their board, which is why I say that the Hobby Lobby case did have a role in this bill because it is precisely where I got the language about “closely held organizations” and requiring that only… Another check to keep you from abusing this immunity would be that you could only, just like Hobby Lobby, benefit from this protection if your organization was a “closely held” organization.
DANIEL: You’re saying that you would actually modify your bill so it wouldn’t be about just violating religious conviction, but actually be about participating in religious activities. Do you have any evidence for how often businesses, or people in Florida, have been forced to provide services that…
GONZALEZ: No, there has not been… Now here’s the difference between Florida and Colorado. This goes back to the beginning of our conversation where I said that the legal situation had changed. The reason why the plaintiffs were able to prevail in their cases, at least in the legal opinion, is because RFRA, the Religious Freedom Restoration Act, which has been passed by almost all states in different variations… The Colorado RFRA and the New Mexico RFRA includes a protection against sexual orientation. There is a paragraph in all of those, including the one in Florida, that is called the public accommodations paragraph, meaning, which goes to your point about what you were talking about when you are a private person but a public servant because you’re engaged in an activity that’s open to the public… If you open a store that is open to the public, you will not discriminate based on gender, race, ethnicity... there’s a whole bunch of provisions… Included in those provisions in Colorado and New Mexico is sexual orientation.
DANIEL: And I understand there’s a bill that’s in the Florida Legislature that’s been trying to make its way through that would extend that same protection.
GONZALEZ: Correct. In the state of Florida there is no protection for sexual orientation. However, in the state of Florida there is a paragraph in the same RFRA that protects the individuals for marital status. I think it’s almost without question that when the drafters of that law referred to marital status, they were talking about single versus married.
DANIEL: But now wouldn’t that be different?
GONZALEZ: I think now that would be different.
DANIEL: So wouldn’t that negate your bill, or no?
GONZALEZ: Well, that’s exactly the purpose.
SHELIN: There’s disagreement on that point. The Equal Employment Opportunity Commission at the federal level interprets marital status to include sexual orientation. It could be interpreted as favoring same sex couples as well. By the way, 56 percent of Florida’s population is already covered by human rights ordinances that protect them from sexual orientation discrimination.
GONZALEZ: You’re making my point for me.
SHELIN: We need it at the state level, but the city of Sarasota has it, the city of Venice has it, the city of North Port has it.
GONZALEZ: My point is merely this: One could have argued that one was not compelled to engage in certain activities based on sexual orientation. Now we’re in a situation where a type of marital status is “same-sex,” “different sex,” whatever categories you want to give it. Which, to me, begs the question, if now we’re going to consider same-sex couples one of the marital statuses that we have in our society, how far do we want the state to force or compel a small business owner or small artisan to participate in…
DANIEL: So you’re saying your law would override the individual communities' protections? I’m probably not understanding this completely, but if the city of Sarasota extends protection to people based on their sexual orientation, would your law, if it were passed as a state law, override that one’s….
GONZALEZ: If a municipality had a law that said you couldn’t discriminate based on sexual orientation, but a situation existed where an activity that you were being asked to participate in was against your religion and in support of that religious activity, and your business was five owners or less, then I think you should have that protection.
DANIEL: It would override it in that case. Let me throw this out, and I don’t know how relevant this is, but there’s been an increasing number of scientists saying that sexual orientation is not something that we chose or learn, but that we’re born with. Do you agree with that or, if that’s true, does that affect decisions like these?
GONZALEZ: As you all know I’m a physician, but I haven’t studied that issue sufficiently to be able to give you a scientific answer about it.
SHELIN: We’re not asking for a scientific answer. We’re asking for a political answer. You’re saying that people are going to be given a political right to discriminate.
GONZALEZ: They’re being given a political right to...
SHELIN: ...advance a religious purpose, and that is violative of the Constitution.
GONZALEZ: I disagree, as I have already told you.
SHELIN: You cannot advance a religion in a public arena. That violates the Constitution if you do it. If you’re advancing your religious beliefs by discriminating against somebody, you’re advancing your religious purpose. That’s illegal. It’s unconstitutional.
GONZALEZ: Let’s see who would be the plaintiff in this case. In this case, the plaintiff would be the same-sex couple. The plaintiff would be saying, “You will abide by my religious perception about what is an appropriate marriage type.”
SHELIN: I don’t think any same-sex couple thinks it’s a religious... they’re saying it’s a civil right.
GONZALEZ: Any same-sex couple that takes the case to court and uses the court to compel the submission of the religious individual who does not want to participate, I would say, by definition, is doing that.
DANIEL: Don’t people get married who are not religious though?
SHELIN: That’s twisting it. That is really twisting things because they’re only going to get their civil rights honored. That’s what they’re going for. They’re not advancing any religious purpose.
GONZALEZ: The religious individual is having their rights infringed.
SHELIN: They’re not changing their religious beliefs.
GONZALEZ: Sure they are! They’re being forced to participate in a religious activity with which they…
SHELIN: They have chosen to engage in a public activity. They are selling a product or a service to somebody from the public. They can open the door and come in. Unless you say, “You can’t come in that door. I only let certain people in.” If they come in that door, you have to serve them. They have civil rights. You cannot impose your religious beliefs on the people who walk in your place of business.
GONZALEZ: That person who walks in that door… His right to force the individual to participate in an activity stops when it goes against that person's religious activity.
DANIEL: What about the way this law has been received? It was proposed in Indiana? Or similar laws?
GONZALEZ: I don’t think this is a similar law.
SHELIN: The Religious Freedom Act.
GONZALEZ: Yeah, the Religious Freedom Act that was proposed in Indiana was a lot broader than what I…
DANIEL: Isn’t it likely that there will be the same kind of outcry against it from people who would hold conventions or meetings here? Is that likely to derail it?
GONZALEZ: I believe that we can fashion a law that will protect both parties; that will protect the same-sex couples, their rights to get services, and the religious individual who does not believe that merely opening a door to his business gives up his religious rights. I think there is room for both. There’s such a wide spectrum of religions and belief in our country. That’s what makes our country so awesome! It is because there is such a wide spectrum that I find it totally unnecessary to tell a small business artisan who's trying to make a living off his or her talent that, “You will go against your religious convictions simply because you open that service to the public.” Admittedly, it needs to be very precisely crafted. It has to be very narrowly focused because I don’t want the individual who is participating in a same-sex marriage to be unduly infringed. I want him to be able to go next door and get it from somebody else. But what I don’t want, and I think it was unacceptable and completely unconstitutional, is to place the state in a situation where the state will force, through our courts, an individual to give up his religious convictions only because he is opening up a business. I think that’s unacceptable.
DANIEL: Anything that we should ask that we haven’t asked?
PLUNKET: There’s some fundamental disagreement here that I see no way to resolve. Smarter people than me have tried to figure it out.
SHELIN: Well, let me go back and make some other comments because you made some comment about the Founding Fathers talking about carving out a Christian country. The fact of the matter is that most of the Founding Fathers were deists. If you read the Declaration of Independence, it talks about nature’s God. It doesn’t talk about a Christian God, or any God. It talks about a natural force.
GONZALEZ: A creator.
SHELIN: A creator. The deists are much like Unitarians are today. So, it has never been a Christian country, and unfortunately a lot of people seem to think that.
DANIEL: That it is?
SHELIN: That it is. The magic of our Constitution is that it does not impose a religious belief on anybody. It required everybody to be treated the same way. It divides rights into two categories, civil rights and religious rights. You cannot use religious rights to impose discrimination on people exercising their civil rights. That’s what it’s all about. It’s as simple as that. You cannot use a religious belief to justify a bias.
GONZALEZ: I agree totally.
SHELIN: That’s what this bill does. It allows people to impose those religious biases to advance those religious beliefs onto the person who is asking for a service.
GONZALEZ: Belief is the plaintiff in this case. If there’s somebody who is going to have the audacity to sue somebody, which was done twice, to force them to give up their religious convictions, then the person who is using the power of the state at their back to advance their religious rights is the plaintiff. I will disagree with you about Christianity as the basis of our country. I wholeheartedly believe that our country was Christian-based, and it is Christian-based. You’re right, the Constitution did not mention a Christian God, mention Christianity. In the end, the First Amendment struck out Christian forbearance in the first drafts. But, it did take away Sundays as one of the days you used to count for the president to sign the bill. The reason why they exempted Sundays is because of Christianity. It did talk about the Year of Our Lord, and the year that they’re referring to, One Lord Jesus Christ. The other thing that was fascinating about our country, at the time of the Declaration of Independence and moving on into the Constitution, is that every single charter, every single Constitution mentioned, at the time of the writing, Christianity as the basis of their…
SHELIN: But they took it out.
SHELIN: They took it out because they wanted to create a tolerant and accepting society.
GONZALEZ: Who took it out?
SHELIN: The Founding Fathers!
GONZALEZ: No, they did not! The Founding Fathers…
SHELIN: They took it out. Well then why isn’t it in there?
GONZALEZ: There is a great reason why. By the way, there’s a number of things here that are fascinating to discuss. The reasons why they took the word “affirmation” was not to take away religious conviction. It was because the people in Philadelphia, I’m blanking out on the name… the Quakers! I’m sorry. The Quakers were adamantly against oaths. They feared God so greatly that they would not even allow themselves to bring up an oath. In deference to them, not a non-Christian sect, but a Christian one…
SHELIN: That’s not the only reason. Thomas Jefferson and James Madison were both deists, and they did most of the writing.
GONZALEZ: Thomas Jefferson attended church every Sunday as president of the United States.
SHELIN: That may be.
GONZALEZ: James Madison, I don’t remember recalling him being a deist, and in his remonstrance he said that he agreed that the important thing that needed to be done was, inevitably, to convert all individuals to Christianity. He felt that Christianity was the correct religion for people to be participating in.
SHELIN: He may have had personal beliefs, but, when it came to creating a country, they took all that out.
GONZALEZ: Let’s explain why! The reason why is because they did not want to do it through coercion. My point is that here we are seeing a situation…
SHELIN: But you’re willing to do it. You’re willing to impose your religious belief on me.
GONZALEZ: I am saying that it is the same-sex couple who is trying to impose their religious belief, through the power of the state…
DANIEL: Let me ask two things. The assumption that I’m hearing is that marriage is always about religion. If I and a boyfriend decided to get married, that would be a religious act on my part. That’s what you’re saying.
GONZALEZ: I don’t necessarily say it would be a religious act on your part. I’m saying that there is a small segment of our society that believes that the only way that it’s possible is as a religious union.
DANIEL: Plaintiffs don’t necessarily see it as religion.
GONZALEZ: Correct, and those individuals freedoms of consciousness and freedom of belief, I think, are to be respected.
DANIEL: Now the second thing. If I’m understanding correctly, you’re talking about how you would modify your bill. It sounds like you would take out the part that applies to health providers and to adoption agencies because those aren’t about religious activities?
GONZALEZ: That’s why I thought the discussion needed to be in different parts. The motivation for health care providers was end-of-life issues.
DANIEL: Because I’m assuming as a health care provider you don’t refuse…
GONZALEZ: I understand, and I’m getting to that. There is a wave taking place as we see health care providers increasingly being employees. With the employee status comes the requirement to uphold corporate policy. Increasingly, we’re seeing corporate policies that dictate when potentially curative care is to be withdrawn. There are many individuals who are involved in health care who are finding themselves in a situation where their duties are restricted, removed or they’re being punished.
DANIEL: So your bill would be rewritten to be about that?
GONZALEZ: As we move forward, I was going to tie down that second paragraph. But, the first paragraph, which is the one that deals with health care providers, needs to explicitly talk about end-of-life issues.
DANIEL: What about adoption agencies?
GONZALEZ: Adoption agencies are a different issue. Adoption agencies came from last year’s debate. The only adoption agencies that should be protected are agencies that are religiously based. There is a very strong and active community, it takes about 5 percent of all the adoption agencies out there, of agencies that are based on Christian convictions.
SHELIN: What about if they’re a Muslim?
GONZALEZ: Same thing. I don’t have any problem with a Muslim adoption agency only adopting to Muslims.
SHELIN: What if they took money from the state or the federal government?
GONZALEZ: I don’t think that they do.
SHELIN: They do. In Florida it’s $1.2 billion.
GONZALEZ: I don’t have a problem with it. I don’t have a problem with allowing a certain subsegment of a total number of adoption agencies being faith-based and accepting state or federal dollars.
DANIEL: But making decisions based on their faith?
GONZALEZ: But making decisions based on their faith. I think that is wonderful. I think that’s great. I think it’s what makes our country fantastic. My goal would be to not interfere with that.
DANIEL: Your feelings?
SHELIN: Then you have no bill because you’re not giving them anything they don’t already have. If you are engaging in a purely religious belief and you’re doing it privately within the context of your own activities and not engaging the public, you’re free to do that now!
GONZALEZ: I know of three businesses in Florida, which have been threatened with a lawsuit since the…
SHELIN: Do they get state or federal money?
GONZALEZ: They get state money.
DANIEL: I think Rep. Gonzalez was saying that if they get state or federal money he is still OK with them making decisions based on their faith.
SHELIN: You can’t do that.
DANIEL: Why not?
SHELIN: It’s discrimination. You’re treating people differently; you’re not treating them equally.
DANIEL: Because that’s federal money?
PLUNKET: That’s tax money.
SHELIN: That’s tax money. Your money and my money. I don’t want him using my money to discriminate against people.
DANIEL: I think we’ve covered a lot. How likely is it that your bill will get passed?
GONZALEZ: It would be unlikely to pass.
SHELIN: Do you have a Senate sponsor?
GONZALEZ: I don’t want to say.
SHELIN: Then he hasn’t signed on yet.
GONZALEZ: She has signed on, but she has not filed it. She has asked because of all the media attention it has gotten that she would like to learn the law better before being revealed.
SHELIN: So when are you going to file it?
GONZALEZ: I haven’t talked about that issue.
SHELIN: You only have two months to do it.
GONZALEZ: I don’t have two months to do it. I have 10 days because it has to be filed on the House side by the beginning of session.
PLUNKET: When bills like this are passed, like the one in Indiana, there’s a tremendous outcry often from business around the country. “We’re going to boycott Indiana.” Would that happen here with your bill, and are you concerned about it?
GONZALEZ: I don’t know the answer to that question. I have been involved in a host on controversial bills already in my young involvement with the House of Representatives. I have never seen the vitriol. The discussion Ken and I are having, I think, is incredibly healthy, productive and great! I think when we finish our recording, we’re going to shake hands, walk out of here and I think we’re all going to be happier for having had the discussion. I know that I have learned a great deal about the weaknesses of my bill because people approach me and talk to me...
DANIEL: You said you’ve also receive hate mail and vitriol.
GONZALEZ: ...sometimes passionately. I think you and I have been very passionate during certain times of our discussion here.
SHELIN: But substantive.
GONZALEZ: But substantive! And always respectful. What I have seen in this bill that I haven’t seen in any other bill, and I’m shocked and, quite frankly dismayed, goes to the point of your venture here to try to have civil discussion; the amount of hate mail and hate communication that I have gotten. I’m trying to be very specific about what I consider “hate.” I’m talking about personal insults to me using terrible language, the mildest of which is calling me a bigot, and also suggesting that I’m not thinking about the topic. I’m not giving the topic the weight that it deserves. It is an incredibly difficult problem to resolve. It’s still going to exist.
PLUNKET: Why so much hate on this issue?
GONZALEZ: I was going to conclude by saying that all bets are off on what kind of reaction there may be because I’ve been completely taken aback by the vitriol.
DANIEL: Have you received hate mail for your work?
SHELIN: Oh yeah. When I was on the City Commission I got hate mail, and I’ve saved it because I think I know who did it. They’ll get theirs eventually.
GONZALEZ: I’ll tell you what I think. Something very terrible happened in our country as we moved on through history. More so than gender discrimination, that was race discrimination and the fact that we allowed slavery. Over the centuries, we started unsubstantially misusing religion as a method for discriminating against whole segments of our society based merely on their race and their gender. I think the fact that this bill might potentially be used in this manner inspires so much vitriol.
DANIEL: Does that give you any second thoughts? Like, maybe if you feel that the purpose is good, but the effects will be destructive?
GONZALEZ: Absolutely. The problem with that conclusion is that the law is still going to be made. The law is going to be made by the courts because sooner or later something is going to filter up.
DANIEL: You would prefer not to have the law made by the courts?
GONZALEZ: I would prefer Ken and I to go to the House of Representatives, knock this thing out and put some rules that respect both sides somehow, imperfect as it may be. Maybe we have to amend it later as we move on, but I would rather do that than to allow lawyers to make legal arguments and judges to make decisions purely based on their own…
DANIEL: Isn’t there always the possibility that the Legislature has political agendas that the courts might not?
GONZALEZ: I don’t think that’s true! If you look at the Supreme Court of Florida, virtually everything that’s not decided unanimously is either a 5-2 vote or a 2-5 vote. It’s always the same five, and it’s always the same two.
DANIEL: Isn’t that true in the Legislature, too?
DANIEL: But it’s bigger?
GONZALEZ: No, to say the Legislature has a political agenda that the courts do not is not true.
DANIEL: To you, Rep. Gonzalez: When we were discussing this discussion with the editors, somebody asked, “Often people feel like society is changing in a way they don’t like,” and that might motivate some of the hate and vitriol. Do you feel like society is going to change anyway, and that you’re kind of out of step with that? Is this about social change?
GONZALEZ: I think I’m totally in step with that because I am reacting to a change in society. I think that reaction and change in society has brought forth a new question. The question is, “What are the relative rights of the individual that wants to get a custom service, in this case, relative to the individual who wants to provide a service, but wants to stay true to his faith?”
DANIEL: Are you fighting against too big a tide, or that wouldn’t stop you anyway?
GONZALEZ: I think if you go into the Legislature and you decide you’re not going to tackle certain issues because they’re too big for you or your intimidated, I think you’re doing a disservice to your your office and to the people who voted for you. To all the people. To the people who didn’t vote for you or are living in other districts. I think the Legislature is supposed to be a place where ideas clash.
SHELIN: Are you going to withdraw this bill?
GONZALEZ: I’m not going to withdraw the bill, but I am completely committed to working it so that it is a better, and maybe even an acceptable, product.
SHELIN: So you’re saying you’re going to amend it?
GONZALEZ: I intend to, yes.
SHELIN: In respect to the points that you made here today?
GONZALEZ: To the points you have made today, and the points a lot of people have made to me. As a matter of fact, in between some of the four letter words I get some...
SHELIN: So the bill is filed; what you’re proposing is to amend the bill?
GONZALEZ: Correct. The bill has not gone through the first committee stop. It’s scheduled to go through three committee stops. Each committee stop it is subject to debate and to amendment.
SHELIN: If it’s voted out of the committee, it’ll be over.
GONZALEZ: If it is voted out of the committee, it’s over. Having identified a lot of the weaknesses that we discussed already, my thought is that I need to amend it to a more finely tuned product at that first committee stop.
SHELIN: Do you have a draft already?
GONZALEZ: Yes, I have some drafts.
SHELIN: Can you furnish it to us?
GONZALEZ: I’m not going to furnish it to you because, what happens in the Legislature is, I have a draft of ideas. I put those ideas in writing. It goes to drafting, to a team of lawyers that changes it to statutory acceptable language.
DANIEL: I think for our discussion it’s enough to say it’s open to be amended.
GONZALEZ: Regardless of whatever I may give you, it’s not going to be what it finally would be.
PLUNKET: Do you agree that there are these very religious bakers who very sincerely believe that they don’t want to participate in a ceremony…
SHELIN: We’re not talking about a religious ceremony. We’re talking about a service or a product. That’s what this bill is all about.
GONZALEZ: In support of a ceremony.
SHELIN: If they’re getting married civilly, then it’s OK? They can bake the cake?
GONZALEZ: No, they cannot.
GONZALEZ: Well, because in the minds of these small groups of…
SHELIN: So it’s more than just in support of a religious ceremony?
GONZALEZ: I define “marriage” as a religious ceremony in the draft.
PLUNKET: It’s a legal ceremony.
SHELIN: It’s a civil ceremony.
DANIEL: You mean it’s not defined that way by the country?
GONZALEZ: Correct, but it is defined that way by the religious convictions. That’s the important angle, I think.
PLUNKET: So anyway, the bakers in Colorado or wherever. I don’t mean this in a technical kind of way, but what do you say to them? “Too bad? You have to follow the law?”
SHELIN: I would still oppose the bill because it purports to treat some people differently than others.
DANIEL: You’d say, “You’re treating these customers differently than others.”
SHELIN: Right. “You’re not treating everybody the same way.”
PLUNKET: “You can’t do that, and if you want to do that, you go out of business.”
DANIEL: I don’t think we changed each other’s minds, but you were very civil and you discussed it very clearly. You’re a great talker. There’s going to have to be a lot of editing.
GONZALEZ: It’s a very complicated, very intricate issue.
DANIEL: Obviously, you are extremely sincere and committed. Both of you have an impressive amount of knowledge from history to legally. I think you did a great job for us.
SHELIN: When do you think the first committee stop is going to occur? And your amendments will be filed with the bill?
GONZALEZ: Yeah. The first stop is the Civil Justice Committee, and that is at the discretion of the chair. The first opportunity will be in the week of Jan. 11 because there are some committee member meetings on the 11th. I believe that week there is going to be a Civil Justice Committee meeting. That would be a time when she would have to make a decision to hear the bill.
SHELIN: Are there a bunch of bills?
GONZALEZ: Oh yeah.
DANIEL: By March this could all be moot.
GONZALEZ: By March this could all be moot, except that I’ll probably bring it back again next year. I think it’s a great discussion, and I think it needs to be had. I think it pits the concerns about discrimination against people’s religion.
SHELIN: And civil rights.
GONZALEZ: On both sides, civil rights. Right? Concerns about religious convictions. There has to be a way! Either the Legislature crafts it statutorily, or it materializes over common law. There will be a way where the various rights of the two groups will be decided.