Why we can’t get religious freedom right

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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One good example is the Mormon church’s definition: “religious freedom is not merely interior and private, to be enjoyed internally in our minds and in the privacy of personal life. It also incorporates the right to act according to one’s moral beliefs and convictions.”

But why, one asks, does baking a cake for a gay couple, or photographing their wedding, violate the baker’s or photographer’s religious freedom? If you don’t like gay marriage, the saying goes, then don’t get one.

Conservative Christians aren’t persuaded. They believe (with no Biblical foundation I can find) that to provide the cake, or take the pictures, or do anything else in support of that gay wedding, taints the baker or photographer with the sin of approving a “sinful” act and relationship.

Thus, any law that might compel them to engage in an act which violates their religious beliefs essentially compels them to sin, and thus “violates their religious freedom” to act in a way that, to them, avoids such “sin.”

This is why conservative Christians will not be persuaded by Mr. Bruni’s eloquence. They simply do not see this issue in the same secular, this-worldly way he does, e.g. “is it legal or not.”

Rather, they see it in what they believe is the loftier context of how God views everyone’s acts, as either virtuous or sinful. Whether or not such acts are legal under American law is, to them, secondary. They think Mr. Bruni and his allies would define religious freedom so narrowly, as an “interior and private” thing, excluding religiously motivated acts, that it becomes “no freedom at all,” in the Mormon church’s words.

The problem with this view is that, taken to its logical conclusion, it becomes precisely what the Supreme Court warned against in 1879: it would make religious belief “superior to the law of the land, and . . . permit every citizen to become a law unto [themselves].”

It shouldn’t take much imagination to see what chaos would result.

Their definition of religious freedom confirms that for America’s conservative churches, this is ultimately not an issue of protecting individual faith and belief, but of maintaining religious privilege and power to dictate socio-cultural norms, practices, and even laws.

The rising numbers of people like Frank Bruni, who see faith and religious freedom as a matter of individual right to believe, speak and act according to their faith in “pews, homes and hearts” without carte blanche in the public sphere threatens that privilege which they have long assumed to be a God-given right, and they will fight furiously to retain it.

Meantime, as long as the parties in this debate fail to agree on the very definition of “religious freedom,” they will continue to waste time and energy talking past each other about how to protect it.

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