Brown: Religious freedom amendment protects the people, not businesses or government

Phil Brown

Religious liberty is a touchy subject. Given that religious beliefs deal with the most fundamental questions we can ask — such as why we are here or how we should live our lives — it is immensely important that people be allowed the freedom to believe whatever they wish. More specifically, our government should not be telling anyone what they should or should not be believing, as is made explicitly clear in the first clause of the First Amendment to our Constitution.

Some — such as the supporters of the vetoed Arizona bill that would have allowed businesses the power to refuse service on religious grounds or the proponents of the various statewide bans on same sex marriages — routinely claim that religious liberties are being violated.

There can be no doubt that these examples all involve disputing religious beliefs, but attacks on religious liberty they are not. This is because — unlike people — businesses and our government do not have religious beliefs. It is the owners and employees of a business and the constituents of a government who have religious beliefs and, therefore hold religious liberties.

Of course, a strong exception is made for religious organizations, which are founded and incorporated specifically to further the beliefs or values of particular religions rather than to earn a profit. This is why no church could ever be required to perform a marriage it does not support and why religious organizations are granted an exemption from the Affordable Care Act’s mandate that employers provide health insurance plans that cover contraceptives.

The Arizona legislature, however, apparently sees no distinction between religious organizations and secular, for-profit businesses. Its misguided bill to “defend against religious discrimination” does nothing of the sort; it instead openly allows businesses to discriminate based on religion.

The Center for Arizona Policy — a supporter of Arizona Senate Bill 1062, the legislation in question – is similarly misguided in its analysis of the bill’s importance. In its words, “Although the question of whether private business owners should be afforded First Amendment protection should be a non-issue, opponents of religious freedom continue to argue that for-profit businesses do not have consciences.”

This is a tenuous assertion coming from a group which goes on to claim, “Such a narrow view flies in the face of the fact that the First Amendment has no limitation on its protections.”

Our First Amendment freedoms have plenty of limitations, including limitations on free speech, as famously outlined by Justice Oliver Wendell Holmes Jr. when he said, “The most stringent protection of free speech would not protect a man falsely shouting ‘fire’ in a theater and causing a panic.” Even the religious liberties of an individual or religious organization can be curtailed when the government can show a “compelling state interest” for such actions.

It is clear that the Center for Arizona Policy holds a simplistic and fundamentally incorrect view of the First Amendment and the rights which it reserves for the people of the United States.

Conversely, arguments from states that do not wish to recognize same-sex marriages, such as those of Utah and Texas, have generally made the assertion that states — not the federal government – have the power to determine what constitutes a marriage. This would seem to be a legal question regarding state powers versus federal powers, but a closer look at the words of some supporters of such bans paint a different picture.

The Heritage Foundation’s Thomas M. Messner asserts that “Proponents of religious freedom have firmly established that same-sex marriage threatens religious freedom in a number of ways.”

The Rev. Dr. C. Welton Gaddy, president of the Interfaith Alliance, concedes that “typically discussions on same-gender marriage, whether in the chamber of a state legislature or a chair in a hairdresser’s shop, begin with comments related to religion,” although Gaddy suggests that this is not the best way to approach the subject.

Dr. Richard Land, the Christian Post’s executive editor, says: “The efforts by several states to pass laws protecting the consciences of people with deeply-held religious convictions against same-sex marriage have ignited a debate that has generated far more heat than light.”

While it is certainly unreasonable for the religious beliefs of some citizens to preclude a completely unrelated, secular marriage license between two others, a recent string of court opinions may have asked too much when they ruled that individual business owners who offer services to the public must offer their services for same-sex weddings.

In his “Gay Marriage and Religious Freedom: A Modest Proposal,” Land accurately suggests that there is a practical, if not legal, distinction between providing services to the LGBT community and being coerced into participating in such a couple’s wedding. Taking photos or selling baked goods is simply not the same as attending and contributing to a marriage ceremony that someone feels is a violation of his or her religious beliefs.

It is important to distinguish between signing a legal marriage contract and holding a marriage ceremony. The former is undisputably a secular, government institution, while the latter is much more personal and is often a religious or spiritual event. By conflating the two different “marriages,” our legal system has done no one any favors.

Asserting that businesses can refuse to serve someone in a public setting based upon religious ideals or that our government can deny marriage licenses due to the beliefs of others is not a defense of religious liberty. These are examples of clear and unwarranted discrimination. It goes too far, however, to say that individuals offering their services to the public must participate in non-legally binding, private ceremonies that offend their religious convictions.