Ken’s Take on the World

Freedom from Religion

The recent passage of S. 1062 by the Arizona legislature has kicked off another firestorm regarding the rights of religious people, particularly those who identify themselves as Christian.  This argument has become, essentially, a red herring that folks on the political right like to promote to inspire their base of supporters.  It promotes an “us” versus “them” public discourse.  It is, of course, absolutely a false argument.  However, the hyping of religious believers being attacked demonstrates popular appeal among certain groups, regardless of whether such claims are true.  The flaws with advancing the position that religious liberties are under attack by, “others” in addition to being patently untrue, include linking the Constitutionally-protected 1st Amendment rights of individual religious expression with laws that are not protected activities under the US Constitution.  While the US Constitution provides very broad protections for the free exercise of religious activities in the private, and even the public, sphere, there are no protections for attempting to enforce one’s own religious beliefs on others.  At least, not in a place that is designed to serve the general public.  Even, activities like religious proselytizing are not protected as much under the “Free Exercise” clause of the 1st Amendment as they are under the “Free Speech” provisions of the amendment.


The Arizona law that ignited this current firestorm is similar to other state legislation that has been, or is currently, being debated in several state capitols.  This legislation purports to protect the “rights” of individuals who provide products or services to the public from “religious discrimination.”  Namely, if a provider of such services or products claims that their, “sincerely-held religious beliefs” prevent them from accommodating the consumer of such products or services, that they would be exempt from lawsuits related to the denial of said services or products.  This spate of legislation is a direct result of multiple court rulings determining that state laws preventing marriages between same-sex couples violate either state or the federal Constitution.  Specifically, the impetus for much of this legislation involves the denial of products or services to gay male or lesbian couples who sought out consumer products for their wedding ceremonies.  These denials have, in several cases, resulted in civil lawsuits that claim denial of the requests of the homosexual clients constitutes a Constitutional violation of equal protection provisions of various state Constitutions as well as the US Constitution.  In defense, licensed businesses that have been sued have claimed a 1st Amendment right of protection based on sincerely-held religious beliefs.


Some have suggested this is identical to the issues faced by black people in the 1950’s and 1960’s who were denied service at segregated lunch counters.  While there are similarities, it should be noted that the issues that arose in the 1950’s and early-1960’s claimed a defense of, “State’s rights” that permitted each state to define rules relating to segregation.  Ultimately, the side that promoted equal protection won out in those cases as, I believe, will happen in these cases. 


There are those who ask why the gay couples who were denied service at particular businesses could not simply go elsewhere to receive desired customer service.  This argument suggests a purely market-based solution which has worked, in certain situations, in the past.  However, the courts have ruled this approach is not necessary, and in fact, has been associated with actual harm to the individual harmed by the denial of service.  The courts have found that requiring someone to use another vendor, or provider of a service or product, imposes an unreasonable burden on that individual.  Numerous examples dating back to the times of legally-sanctioned discrimination clearly demonstrate this as when black people were denied service at a “Whites Only” hospital.  While seeking a photographer for an event or a cake for a party do not rise to this level of severity, consider attempting to procure these services in a very small community.  If the only baker in town was to deny a common service, like baking a cake for a celebration, the customer may be forced to forgo a product or travel a greater distance to obtain the product.  Or, perhaps, the customer approached the business owner because that business’s service or product was believed to be the very best product available.  Should the customer be forced to settle for a lesser quality product or service?  What if the customer was seeking to purchase a specialized product like a high-end automobile?  There may not be many dealers of this particular brand of automobile and if the nearest dealer refuses to provide services it would force the customer to drive a greater distance to obtain the desired product.


Consider a more serious issue.  Healthcare.  Perhaps you are a Muslim who suffers from a relatively uncommon medical condition and the nearest specialist that could treat your condition refuses to provide care claiming his religious beliefs forbid him from providing service to non-Christians.  In a true emergency, the physician may have a legal obligation to provide emergency care, however, for routine care, you would have to travel quite far for essential medical care.  Legislation presented to the Arizona Governor and currently under consideration in other states would make such a denial of care acceptable.


A number of folks have attempted to articulate that they should not be required to abandon their religious beliefs in order to participate in a same-sex marriage.  First, no one is being forced, by the states, by the courts, or by any governmental agency to participate in an actual ceremony involving the union of two people, heterosexual or homosexual.  Second, no individual, gay or straight, has attempted to demand that another person participate in an actual ceremony associated with the legal definition of a marriage.  To be clear, even when a photographer is hired to take photographs at a wedding, they are not actually participating in the ceremonial act of marriage.  It is their business that was contracted with to provide a specific service.  In at least one other case, it has been argued that refusing to bake a cake for a same-sex wedding was a protected religious liberty.  Again, the baking of a cake, is neither an integral part of a marriage ceremony nor a protected religious activity.  A bakery that has a license to operate as a business in the community is required to abide by applicable laws.  The courts have determined in numerous cases that a business operates as a service to the public and as such, a business owner cannot deny service to a customer who is able to pay for such services.


While the legislation currently being debated in several states is being linked to the conversation currently taking place in society and in the courts regarding marriage equality, it has been, rightfully, pointed out that such laws would have many unintended consequences that could leave any individual susceptible to the denial of customer service by any business owner.  Laws that permit, or worse, promote, discrimination are, as Jon Stewart has said on his show, “Morally-repugnant.”  A claim of “religious liberty” as a rationale for justifying discrimination is reprehensible to many people of faith throughout the country.  Such a claim is inconsistent with all of the major religious traditions and is being used as a means to advance a personal agenda of bigotry and prejudice.


While Governor Jan Brewer of Arizona did veto the legislation that was presented to her, it is interesting to note that several other states that had been, or are currently considering, such legislation have either withdrawn proposed discriminatory legislation or pulled back to reconsider advancing such un-American laws.  This is a result of the public debate on this issue, but also, a result of the potential economic backlash that any state that would enact such a law would face.  A very broad coalition of individuals spoke up regarding the Arizona legislation including a “trifecta” of progressives, conservatives, and businesses that joined with civil rights organizations in unity to oppose this heinous bill.  It is sad to note the amount of vitriol levied against the Arizona governor subsequent to her veto of the bill.


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