Thursday, March 6, 2014

Thought Exercise on the Uses of the Cudgel of “Religious Freedom”

Lately, we’ve seen a number of states, most notably Arizona, consider or even pass legislation that would permit discrimination in order to “protect” the “religious freedom” of the person doing the discriminating (rather than protecting the person being discriminated against). Obviously, the impetus for these bills has been the “fear” that a baker, florist, or photographer might have to provide services for a same-sex marriage. But the sorts of bills that we’ve seen have gone far beyond addressing that seemingly narrow concern and have, instead, been far broader.

Take, for example the bill that was vetoed in Arizona last week, which provided that implementation of laws “shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability” unless the law is “in furtherance of a compelling governmental interest” and the “least restrictive means of furthering that compelling governmental interest”. The burden of proof appears to be on the person opposing the claim of religious freedom. Thus, even if Arizona had a law that prohibited discrimination against a person on the basis of sexual orientation (which it doesn’t), a person could claim that baking a wedding cake for a same-sex wedding (which isn’t permitted in Arizona) placed a substantial burden on the exercise* of the baker’s religion and it would be up to the same-sex couple to prove either than the burden wasn’t substantial or that the law furthered a compelling government interest and was the least restrictive means. Not an easy burden of proof.

But let’s stop thinking just about gay couples wanting to get married and broaden our view to what else these sorts of “protections” of religious freedom might cover, and then see what we think about “religious freedom” in these alternate contexts. Thus, even if you believe that a religious business** should be able to decline to provide services to a same-sex wedding on religious grounds, which of the following would you also agree would be acceptable?

Could that baker also refuse to sell cookies to a gay couple that walks in off the street? What if it’s just a single gay guy or even someone who might be gay? What if it’s a gay guy who says that he doesn’t “engage in the homosexual lifestyle” anymore (love the sinner, hate the sin, so to speak…)? Can the baker simply refuse to do any business at all with homosexuals and cite his “religious freedom” as a sort of license to discriminate? Or is there some kind of line between homosexuality generally and same-sex marriage, in particular?

How about, instead of a gay couple, the prospective customer is a divorced woman and the baker is a devout Catholic who believes that marriage is eternal and that divorce is improper? Could the baker refuse to bake a cake for the woman’s remarriage? Or what if, instead of being divorced, she was a single mother who bore a child out of wedlock? Could the baker refuse her service on those grounds? What if the woman’s fiancé wasn’t Catholic? Could the baker refuse her service because he believes that interfaith marriages are prohibited by his religion?

What if the baker believes that the only way to salvation is through Jesus (isn’t that what the sign people are always holding up at football games means?). Could the baker refuse to sell cookies to anyone who hasn’t been “saved” by Jesus? Or, said differently, could the baker refuse to sell cookies to Jews, Muslims, and atheists because those prospective customers don’t have a relationship with the baker’s god (or at least not the sort of relationship that the baker deems requisite)? Could the baker adopt and enforce a “Christians only” policy for his bakery? What about Catholics only?

Now, let’s move away from the hypothetical baker and turn our attention, instead, to the lunch counter at the local diner. Do your answers to any of the preceding change with the change in locale or type of business? If so, why? If so, why would it be OK for a baker to decline to deliver a cake to a same-sex wedding but it wouldn’t be OK for the owner of a diner to turn away a honeymooning same-sex couple?

So what if the prospective customer is African-American or Latino and the owner of the diner is a fundamentalist Mormon who believes that dark-skinned people are somehow lesser (I don’t really understand Mormon philosophy, but from what I’ve read, The Book of Mormon places dark-skinned people in a lesser role of some kind; feel free to correct me if my understanding is in error)? What if the owner of the diner was a white, Christian segregationist that used the Bible to justify keeping blacks out of his store prior to the Civil Rights Act? Should he be able to return to the era of keeping a “whites only” lunch counter on the basis of his sincerely held religious belief that G-d created separate races and intended for them to be kept separate?

Should the Jewish owner of a deli be permitted to refuse to serve someone with a tattoo, someone who eats shrimp, someone who eats cheeseburgers, gets haircuts, wears garments made of mixed fabrics, or kneels in front of a cross? Should that Jewish deli owner be permitted to refuse to serve someone of Palestinian or German origin? Should a Jewish deli owner suddenly be allowed to violate the terms of his lease and close his restaurant on Saturday, even though the lease requires him to be open? Or, if the business in question was a auto dealership in Indiana, could its observant Jewish owner sell autos on Sunday notwithstanding the “blue law” prohibition against auto sales on Sunday; after all, the observant Jewish owner in question couldn’t sell cars on Saturday due to work being forbidden on his Sabbath, so wouldn’t prohibiting from selling autos on the Christian Sabbath violate his religious freedom?

And what about, say, hospitals? Should a Catholic hospital be permitted to refuse to treat gay patients? What about divorced patients? What about patients who support the death penalty or who use birth control or who voted for the candidate that the Bishop said wasn’t a good Catholic? Should a Catholic hospital be permitted to turn away patients who aren’t Catholic (or at least Christian)? Perhaps we should have separate (but equal, of course) hospitals for Catholics and Jews and Muslims and Hindus and … hmmm, just how many hospitals would we need? Are there enough Sikhs in Indianapolis to support their own hospital if “Christian” hospitals decide that Sikhs look a bit too much like Muslims to be treated?

Could a Muslim taxi driver refuse to pick up a woman who isn’t wearing a veil or isn’t accompanied by a man? Could that Muslim taxi driver refuse to pick up someone carrying alcohol? Could that Muslim taxi driver refuse to deliver a passenger to a restaurant that specializes in pork ribs?

And I suppose that Hindu florists could refuse to provide flowers to a wedding at which meat will be served, right? Maybe “religious” hotel owners could refuse to accept reservations from unmarried couples. Perhaps they could just require unmarried couples to sign a pledge not to engage in pre-marital sex in the hotel bed.

Obviously, if we start allowing people to operate their businesses with exceptions to anti-discrimination laws in order to protect “religious freedom”, then things are going to get very complicated, very quickly. Hopefully, businesses will start putting signs up in their windows to warn prospective customers that the business observes a “no gays allowed” or “whites only” or “Muslims not welcome” policy. After all, I’d hate to wait in line to buy some cookies only to learn that the baker didn’t serve Jews.

“But, but, but…” I hear you saying, “the only objection is to serving gays, because same-sex marriage is against the teachings of the Bible!” First, I’m not going to get back into the issue of what the Bible really says about homosexuals. I’ve talked about that plenty (and probably will so again). Rather, let me ask this question: The Bible demands many things and prohibits many other things; so why is it just same-sex marriage (or homosexuality, more generally) that triggers these claims of “religious freedom”? What is it about homosexuality that elevates that particular “prohibition” above all of the other requirements and prohibitions in the Bible? And if that prohibition is really so important, why aren’t we putting to death men who engage in homosexual behavior as the Bible also requires? You know, for religious freedom?

Um, wait a minute. Didn’t the use of the “religious freedom” argument get its first real airing with regard to the Affordable Care Act’s requirement that employer-provided insurance include birth control? Yep. So obviously, it isn’t just homosexuality in play. Nope. It’s homosexuality and reproductive rights. Or perhaps it’s homosexuality and sexuality. Anything else? But of course, that doesn’t answer the question of why these two issues are trigger a “right” to religious freedom, but other Biblical commands and prohibitions don’t (yet).

One of the arguments that I’ve heard, is that homosexuality is different from the other sorts of protected classes, because homosexuality is not an “inherent characteristic” but is, rather, a “self-professed behavior” or a “choice”. And, thus, homosexuality should not be entitled to protection from discrimination in the same way that we protect race, religion, gender, national origin, and so forth. Um, wait. Religion? Isn’t that a choice, too? But we protect people from discrimination on the basis of their religion. How can it be that religious freedom can’t be a reason to discriminate on the basis of religion itself. You don’t suppose that the reason for discriminating might actually have little to do religion itself and more to do with basic attitudes toward homosexuality (icky!) or sexuality (slut!), do you?

There is another point that I hadn’t really considered until I came across the article How Religious-Freedom Laws Could Come Back to Hurt the Faithful published in The Atlantic:

Interestingly, the conservative Christians who support these bills also believe that America is becoming increasingly antagonistic toward members of their own faith. They have long decried the secularizing and pluralizing of America’s public square. They’ve argued that America is, in Robert Bork’s phrase, “slouching toward Gomorrah” and becoming post-Christian or even anti-Christian.

Albert Mohler, president of the Southern Baptist Theological Seminary, who supports these bills, also once wrote, “The most basic contours of American culture have been radically altered. The so-called Judeo-Christian consensus of the last millennium has given way to a post-modern, post-Christian, post-Western cultural crisis which threatens the very heart of our culture.”

If Christians really believe they are becoming a marginalized movement, why would they want to disempower marginalized people in the marketplace? It’s easy to codify your own biases when you’re part of the majority and get to be the one refusing services to others. But what if you’re the minority? What if others are turning you away because they think you are the abominable one?

Many Christians believe that the Book of Revelation predicts a coming time of persecution and evil. In the apocalyptic book’s 13th chapter, it is predicted that a time will come when Christians won’t be able to buy or sell in the marketplace. If Christians believe this time is coming, they must also ask, “How might such a reality be realized?” Could it be that they are unwittingly becoming the authors of their own demise?

Conservative Christian activists often argue that these bills put us on a ride down a slippery slope that could lead to the government forcing conservative Christian pastors to perform same-sex weddings against their wills. (Never mind that legal exemptions for houses of worship and pastors are woven deeply into American law or that there is no historical precedent for such predictions.)

But these prophets of doom only acknowledge one side of the slope. They fail to consider how these laws could be used against members of their own communities. If you are able to discriminate against others on the basis of religious conviction, others must be allowed to do the same when you are on the other side of the counter. You can’t have your wedding cake and eat it too.

The ancient King Solomon, a man Christians believe to be the wisest person ever to live, once wrote, “Whoever digs a pit will fall into it; if someone rolls a stone, it will roll back on them.”

If this is the pit that Christians intend to dig, they better line the bottom with pillows.

Furthermore, if we can discriminate on the basis of “religious freedom”, why can’t we also act in other ways or ignore other laws that might impact our religious freedoms? Why can’t I smoke peyote if my religion requires it? Why can’t I sacrifice an animal in the public square if I need to do so to please my deity’s requirements? Why can’t I stone my disobedient child or rape your daughter and then pay you a few shekels for the right to marry her? Why can’t I have four wives is Allah says that’s acceptable?

If I don’t drive on shabbat, then shouldn’t I get a 1/7th discount on the portion of my taxes that pays for roads? If I’m opposed to the death penalty or to war, then shouldn’t my taxes be excluded from paying for those? If meat is forbidden to my religion, then why should my tax dollars pay for USDA meat inspections? If not, then isn’t my religious freedom being infringed by making me pay for things that I don’t or can’t use because of my religious beliefs?

Thus, the real question to ask is whether applying the “defense” of religious freedom (or is it an offensive weapon to be wielded like a cudgel against those who don’t share your religious beliefs?) is available to all people and all religious beliefs for all types of conduct, or if only those professing the right religious beliefs are entitled to their particular freedoms (and only for those religious obligations or prohibitions that they care about, hypocrisy be damned [yes, pun intended]).

Either we are a secular society that respects religions but recognizes that laws of general applicability can’t be trumped or vetoed by religious belief or we will become a highly fragmented realm made up of separate, and largely unequal, religious groups fighting over their respective place in a theocratic system. And based on human history, when religions come into conflict, especially when there is either money or power involved, the result tends to cause streets to run red with the blood of those killed in the name of deity or theology.

*This post isn’t really about the Arizona bill, so I don’t want to get too lost in the weeds. But it is probably worth noting how Arizona’s law defines “exercise of religion”: “‘Exercise of religion’ means the practice or observance of religion, including the ability to act or refusal to act in a manner substantially motivated by a religious belief, whether or not the exercise is compulsory or central to a larger system of religious belief.”

**Businesses aren’t religious; people are. But that’s a discussion for another day. For the purpose of today’s discussion, I’ll pretend that a business has religious views. In the meantime, please let me know next time you see Hobby Lobby in the pews, a Catholic business in a confessional or taking communion, a Jewish business getting a bar mitzvah, or a Muslim business making the hajj.

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At Friday, March 07, 2014 4:29:00 PM , Blogger Charles said...

I still can't understand why someone would want their cake baked or their photos taken by someone who really doesn't want to do it, regardless of their reasons. I understand the point you're making about the theoretical slippery slope that these laws may introduce, but don't get why these folks would rather fight than just going somewhere else.

At Friday, March 07, 2014 5:05:00 PM , Blogger MSWallack said...


I understand just what you're saying and I am sympathetic to that line of inquiry. There is a part of me that says that we might think about some exceptions to the general non-discrimination rules when the services being sought involve an element of creativity that itself is an expression of First Amendment protected speech rights when outside the scope of the work for hire situation (such as photography). However, I do worry about where, precisely the line would be drawn in the case.

In addition, while the "just use someone else" notion has some appeal, query what happens if in a particular community there isn't anyone else or the "anyone else" doesn't have the skill or reputation. For example, what if a particular locale had a particular cake maker who was known for being able to take vacation photos and design cakes that resembled that photo? Or something. Or what if a particular photographer had an exclusive to take wedding photos at a particular wedding venue? Or the florist was the only one in the area with access to Flower Type X.

But absent those sorts of odd circumstances, you do wonder why the aggrieved couple doesn't just go down the road to find another baker, florist, or photographer. Of course, one could then ask the question of why, when the lunch counter refuses to serve an African American or a Muslim, that rejected customer doesn't just walk down the street to find another lunch counter.


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