Who is Discriminating?

Here it is in black and white: Someone is trying to write a law that says it is wrong to force someone to violate their religious beliefs. One wonders how that works under a Constitution that, according to Cornell Law School's Legal Information Institute, "The Free Exercise Clause not only protects religious belief and expression; it also seems to allow for violation of laws, as long as that violation is made for religious reasons." Arizona has proposed a law that would give people the right to refuse service to a person if the context of the service involves the violation of a religious tenet. A photographer, for example, would have the right to refuse to do wedding pictures for a gay couple.

An article on TPN rightly points out that, if enacted, Arizona would not be discriminating against anyone. On the contrary, those who oppose the law, claiming it does discriminate, would be stripping one group of its Constitutional religious rights granted by the First Amendment free exercise clause in their effort to protect the "rights" of another group. I put "rights" in quotation marks purposely. It is not clear that a person has a "right" to demand service under every circumstance, let alone one that forces the service provider to violate a religious tenet.

A similar case was recently argued in a New Mexico court involving photographer Elaine Huguenin. Citing a Washington Post article, TPN reports that, "in ruling against Huguenin’s case, New Mexico Supreme Court Justice Richard C. Bosson wrote that while Huguenin and her husband are 'free to think, to say, to believe, as they wish,' the public accommodation of differing beliefs is 'the price of citizenship.'” Bosson's reasoning is frightening. He goes beyond voiding free exercise into the other half of the First Amendment religious language, the establishment clause, effectively establishing secular "religion" as the law of the land.

According to Washington Post article, the Arizona law specifically expands the protected class under the state’s free-exercise-of-religion law to “any individual, association, partnership, corporation, church, religious assembly or institution or other business organization.” Many pastors across state and denominational borders regularly refuse to marry certain couples for a number of reasons. If Justice Bosson is correct, those pastors are not "accommodating" differing beliefs; they are not paying the price of their citizenship. If the Arizona law is found to be unconstitutional, those pastors could be forced to marry anyone who asked for the service.

Many people on the left attempt to compare this situation to the Jim Crow laws in the segregated South. Businesses all over Dixie once followed a "separate but equal" policy which allowed them to effectively discriminate based on race. Woolworth's lunch counter in Greensboro, North Carolina was the site of a famous sit-in in 1960 that eventually led to the elimination of the separate but equal doctrine. There are those who point out that many southern churches defended racism, including slavery at one time. They claim that the gay rights issue is the same situation: Christians practicing discrimination based on religious teachings.

But gay rights and race rights differ in at least two important ways. First, the Christians who claimed the Bible supported racist treatment were wrong, whereas Christians who claim the Bible labels homosexual behavior as a sin are correct. Becoming involved in a context where sin is not just practiced, but celebrated would be inappropriate for many Bible-believing Christians. Second, homosexual behavior is a choice a person makes, not an inescapable state like race. One cannot choose one's race; one does choose to act on homosexual desires. 

There is a third difference which is not as easily dismissed. Opening one's doors to the public to offer a service may be different from an individual offering a service at his or her discretion at various locations. One can imagine many circumstances which would naturally present a service provider with reason to decline service. If an establishment is open and someone walks in to be served, it may be difficult to refuse service all other things being equal. If the person walks in with a dog (not a helper dog) a restaurant may refuse. If the person walks in shouting and behaving erratically, the restaurant may refuse. If the person is not wearing shirt and shoes... 

The direct parallel to this is the church service itself. I know of no church (except maybe Westboro Baptist) that would refuse to let a homosexual, even a couple, sit down at a worship service. If that couple started necking during the sermon, they might be asked to leave, but then so would a heterosexual couple behaving similarly I presume. As I have said previously, it is not the homosexual person the Bible warns Christians away from, it is the sinful behavior they choose to engage in. To those who claim the Bible prohibits judging people, another previous blog debunks that stand. We must "judge" or discern which behaviors are acceptable and which are not.

Finally, if the Cornell opinion cited in the first paragraph is correct, discrimination based upon sexual preference (a violation of the law) may actually be protected under the free exercise clause of the First Amendment. This seems reasonable, since it would be pointless to say the government must allow free exercise unless someone objects to said exercise on any ground short of injury or the restriction of the objector's freedom. In other words, citizens have the right to do just about anything not specifically prohibited as long as it does not infringe on someone else's rights. A photographer's refusal to participate in a gay wedding in no way infringes on the gay couple's right to marry or to seek another photographer.

I hate to keep quoting myself, but I am reminded of the warning by Martin Niemöller I used in another post. If we don't start resisting this rabid political correctness and its intolerant spokespeople, our rights to say anything biblical will be lost or at least criminalized. It is true that Christians are called to submit to the secular authorities, but in our society, we the people are the makers of that authority. The complacency Niemöller warned against will end up costing us our freedom. That will be, to paraphrase Justice Bossson, a price too

high for a substandard citizenship.