Views & Voices

Why we can’t get religious freedom right



“Religious freedom” does not include the right to discriminate in any public setting against anyone because of their homosexuality. So writes Frank Bruni in a New York Times column on Sunday titled “Your God and My Dignity.”

Mr. Bruni noted the trend of conservative Christians to argue that if someone whose religion prohibited homosexuality or its expression engaged in “baking a cake, arranging roses, running an inn” or any other public activity, that person’s religious beliefs should trump any laws otherwise governing that activity — such as laws prohibiting discrimination, or laws authorizing marriage by same-sex couples, and thus those persons could legally deny their services to gay couples.

His key point was to say no, religious belief doesn’t, and shouldn’t, confer the right to do that; those are public acts, not matters of private belief or worship, and as such are governed by generally applicable public laws.

Religious belief doesn’t confer the right to pick and choose which laws to obey.

Though it obviously needs repeating, Mr. Bruni’s argument is not new.

Even U.S. Supreme Court Justice Antonin Scalia, no friend of liberal causes he, said so in his 1990 majority opinion in Employment Division v. Smith (484 U.S. 872).

He cited the Supreme Court’s 1879 decision in Reynolds v. United States (98 U.S. 145) which said that while laws “cannot interfere with mere religious belief and opinions, they may with practices” and that to allow anyone to excuse their actions solely because of religious belief “would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself,” something which could not be allowed.

Later Supreme Court decisions, said Justice Scalia, “have consistently held that the right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).”

Congress’ response to the Smith case was to pass the hyperbolically misnamed “Religious Freedom Restoration Act” which, while it tightened standards for government regulation of religiously motivated activity, did not change the fundamental principle that religious belief alone is not a “get out of jail free” card entitling anyone to disregard any law they want.

Because that principle has been clear throughout American legal history, one wonders why conservative Christians who disagree seem so impervious and unmoved by it.

Eloquent as Mr. Bruni and others have been, obviously they’ve failed to persuade millions of Americans. The two camps seem to be consistently talking past each other. Why?

The reason is that nobody agrees on the definition of “religious freedom.”

To Mr. Bruni, or to Robert Boston, author of “Taking Liberties: Why Religious Freedom Doesn’t Give You the Right to Tell Other People What To Do,” it is the “right of people to believe what they do and say what they wish — in their pews, homes and hearts.”

But conservative Christians disagree. To them, it goes much further.

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