How Far Should We Allow “Religious Rights” to Go?
Imagine someone you care about has been critically injured in an auto accident. Paramedics arrive quickly then just as quickly pack up the medical supplies and leave.
Turns out the EMT – who also owns the small ambulance company – recognizes the injured person and knows that she is a lesbian, so he refuses to treat her or allow her to be transported in his ambulance.
Seems like something that could only happen in a bad movie or a hyperbolic blog post, right?
If you think the scenario I created above should never happen, welcome to humanity. But, according to this article from The Public Religion Research Institute (PRRI) – chances are one of the next three people you meet thinks it would be fine if a lesbian was left to die on the side of the road.
If you are at a Republican convention or in a Protestant church full of white people look to your left and to your right. According to the same report, one of those two feels that way.
The article, titled Increasing Support for Religiously Based Service Refusals, shows that an astonishing 47 percent of those who identify as Republicans and 30 percent of everyone … well, every American that is, believe it should be permissible for small businesses to use religion as a basis to refuse service to gay or lesbian members of society.
Trans-gender people were asked about separately and faired about the same.
It’s not just about the LGBTQ+ people though. Nearly one in four Americans (24 percent) felt that it would be okay for a person to be left to die on the side of the road simply because they are an Atheist. Additionally, nearly one in five felt that way about Muslim people (22 percent) or Jewish people (19 percent). African Americans came in last – or maybe first – with only 15 percent.
Worse yet the numbers are up from the same survey conducted by the same people in 2014. In fact, almost twice as many feel it is okay to refuse service to Gays and Lesbians as did in 2014.
Wait, this is just about baked goods and flowers, right?
Most likely, what filled the minds of respondents when they were asked about refusing products or services to others was a cake. Maybe a chocolate cake but definitely not a rainbow cake.
Respondents most likely thought about the curious case of Masterpiece Cakeshop. The owner of the now famous bakery, Jack Phillips refused to sell a wedding cake to a same-sex couple despite Colorado public accommodations laws which forbid discrimination. Eventually, Mr. Phillips had his big day in the big court and came out the victor … well, sort of.
Phillips sued the Colorado Human Rights Commission because he felt they had shown animus toward him. The court agreed.
Justice Anthony Kennedy provided the majority opinion in which he wrote that:
“the record here demonstrates that the Commission’s consideration of Phillips’ case was neither tolerant nor respectful of his religious beliefs.”
Kennedy also said, “These disputes must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market.”
No, this case did not open the door to discrimination based on religious beliefs as some have claimed. It may come to that later. For now, the court let states know they need to tread very lightly when challenging businesses that choose to discriminate, which could have the same effect as allowing discrimination. After all what good are anti-discrimination laws if they are not allowed to be enforced? It’s a little like the States being told they are allowed to set speed limits, but they can’t pull drivers over or give tickets.
- In another case – this one involving a Washington State florist – the Erstwhile Nine sent the case back to the State court for review based on the finding in the Masterpiece case. In this matter, the Washington State Supreme Court issued its final ruling on June 6th of this year, telling the defendant, Barronelle Stutzman, owner of Arlene’s Flowers that it is not permissible under the law, to discriminate against one class of customers on the grounds of sexual orientation. Stutzman has said she will appeal the State’s ruling to the Supreme court.
- Mr. Phillips – emboldened by his narrow victory – went back to his cakeshop and refused to make a pink cake with blue frosting in celebration of potential customer’s gender transition. The State of Colorado opened a complaint and then dropped it. However, the customer has filed a discrimination suit. With the continued monetary and legal help from the Alliance Defending Freedom, Phillips will be looking to take this case to the Supreme Court as well.
The letter of the Law
Public Accommodations laws state, in essence, that if you open a business to the public, you don’t get to choose who the public is. Also at play here is the fact that the public pays taxes for the streets and sidewalks which allow customers to patronize your business. Jack Phillips claims he is following the law and serving all of the public equally because he would deny a cake celebrating a sex change to anyone, not just a transgender person.
Mr. Phillips may be taking a cue from Justices Clarence Thomas and Trump appointee, Neil Gorsuch who embraced the same thought process in the first Masterpiece Cakeshop Supreme Court case. Both said that Mr. Phillips was not discriminating against same-sex couples because he would refuse to sell cakes celebrating same-sex marriage to anyone. In other words, the discrimination was based not on who the person is, but rather what they are celebrating.
If this new case goes to the Supremes court it could be just what Gorsuch and Thomas need. The two are aching to carve out an exception based around this logic. With Kennedy having been bribed into retirement and Trump’s second appointee Brett Kavanaugh likely to back them, such an exception may be possible now. Unfortunately (or fortunately depending on how you look at it), this would poke a huge hole in anti-discrimination laws and would eventually render them useless.
Imagine the States being allowed to set and enforce DUI (Driving Under the Influence) laws but they can’t cite anyone who has a clever excuse. Would it be better if the clever excuse were required to be based on someone’s religious beliefs?
But what about freedom of religion?
To be clear no one is arguing that a person does not have the right to stick to their beliefs. Neither the federal government nor any state or city should make a law requiring a person to act outside the rules dictated by that person’s religion. For example, If Montana or any other state tries to force a Christian Pastor to perform a wedding ceremony for two men, or dictates that a person of the Muslim faith must eat pork, I’ll get my pitchfork and join the fight.
Religious rules, though, are meant only for adherents of that religion. Islamic law forbids the consumption of pork and alcohol by Muslims, but they don’t require atheists not to partake. Halakha (Jewish religious law) forbids the operation of a car during Shabbat, yet even devout Jewish people don’t expect highways to be empty.
No, your right to practice your religion doesn’t stop because you own a business. A Christian business owner is well within her rights to decorate her store with religious paraphernalia, wish her customers a Merry Christmas or Happy Easter and not open the doors on Sundays. A business owner can also express his religious preferences in the products he offers. A Muslim person operating a store may choose only to sell foods that are Halal.
If, on the other hand, the Christian owner insists that employees pray to her god, require they wear a cross, or withholds part of their pay as a tithe, it’s not hard to see that they have run afoul. If the Muslim store owner chooses to sell pork – assuming the state has public accommodations laws – they must sell it to anyone, including other Muslims.
Similarly, if a Christian baker sells wedding cakes or cakes celebrating important events in people’s lives they must sell them to anyone no matter the reason for the celebration. Does this compel a baker to decorate a cake for a white supremacist rally or make a birthday cake for a serial killer? I would say that yes, it does.
Where is the line?
What about the argument that building a cake for a same-sex wedding is endorsing same-sex marriage?
Is making a cake for a non-religious wedding endorsing Atheism? Is baking a cake for a person’s second wedding endorsing divorce? I wouldn’t make the assumption that a baker endorses white supremacist beliefs just because they decorate a cake for their rally.
Some suggest that an exception should also be made so caterers, musicians, photographers and the like are not being forced to participate in a same-sex wedding. I officiate weddings, and as such I participate in the wedding ceremony along with the couple, their attendants, in some cases the ring and flower bearers and possibly a few others.
Neither myself nor any of those people should be compelled by the law to participate in the ceremony. Anyone else is merely there to celebrate the event or have been hired to be there.
The line should be fairly clear. A person is free to practice their chosen religion but is not free to impose their beliefs on others or violate the law. If my religious belief held that human sacrifice is the way to glory, should I be allowed to murder? I certainly wouldn’t expect the court to open up a religious exemption in murder laws.
Yet, according to the PRRI survey that is exactly what a significant portion of the country wants.
To be fair, as I have already said people were probably thinking about baked goods and flowers when they answered, I am also willing to bet the respondents only had their own religion in mind. Besides, the question was only about a business refusing products and services. Certainly, people don’t support ritual sacrifice nor are they okay with people being left to die?
Here is the thing though, If you punch a hole in one law, you might as well take a drill to the whole book due to the precedence that is set. Also, a hole sized for one religion will get bigger and bigger as more and more religions climb through it.
Yeah, it may be about cakes and flowers now but before you know it a private ambulance company or a private hospital is refusing to care for your Lesbian friend?
When it comes to that, don’t blame me, I cast a very decisive no vote. Fortunately, at least for now, most Americans agree with me. You can let me know how you feel on Facebook or Twitter. You can also leave comments below.
NOTE: While I was writing this article the Supreme Court agreed to hear an appeal to a Montana Supreme Court decision Which could have a far-reaching impact in the area of religious liberty. This case involves giving public money to private religious schools. A ruling in favor of the parents could take a hatchet to a portion of the Montana Constitution.
Shannon Hanson is a web developer and technology guru who lives in Montana.
Shannon has been an activist and rabble-rouser for decades and has worked on national, statewide and local political campaigns including his own.
Shannon owns a technology consulting company and teaches WordPress, social media, and technology classes at the local college. He also heads up a non-profit dedicated to the writing community. When he isn’t working he’s probably taking pictures, working on his novel, writing a blog post. walking in the woods with his dog, cooking or tinkering with something.
Oh and he’s the worlds oldest beginning drummer.