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American Jurisprudence Has Made A Mess Of Religious Freedom

The clash of religion and sex in debates over marriage, abortion, and public accommodations should be of concern to all who love liberty.

The first clauses of the First Amendment have been gutted of their power, resulting in an exemption culture which views religious conviction as idiosyncratic; something to be tolerated, but not celebrated. The clash of religion and sex in debates over marriage, abortion, employment policy, and public accommodations shows the inadequacy of current religious freedom law. This should be of concern to all who love liberty.

Pew’s David Masci recently argued there is no cause for concern among Christians about the same-sex marriage movement because “each of the 12 states that have passed laws legalizing same-sex marriage also protects religious groups and clergy who do not want to solemnize or participate in same-sex weddings.” Religious people should place no faith in these laws.

A bit of background: In its most recent attempt to develop a replacement to the free exercise clause, the Court offered religious people the chance to ask for exemptions from otherwise generally applicable laws. Exemptions were to be given so long as some compelling state interest did not incidentally demand the sacrifice of their soul (Employment Division v. Smith, 1990).

In response to Smith, Congress passed the Religious Freedom Restoration Act, and a number of states passed similar legislation. These laws shift the burden back to the government to prove its infringement is the least restrictive means of serving a compelling state interest. Yet free exercise jurisprudence is as unpredictable and inconsistent as ever (see Rehnquist’s dissent in Wallace v. Jaffree for a classic accounting of the mess), a far cry from the robust culture of diverse religious expression the First Amendment guarantees.

Supreme Court Justice Anthony Kennedy, writing this summer for the majority in Windsor, made clear that there is no rational basis for opposing same-sex marriage. Siding with same-sex activists, Kennedy argued that those who hold such a view are animated by hate, ignoring the record number of amicus briefs submitted proving otherwise. If you believe as Kennedy and the revisionists do there is no tolerance for such hate, not even if grounded in sincere religious belief. Consider Hawaii Rep. Jo Jordan (D), who became perhaps the first openly gay legislator to vote against “marriage equality” because of concern that the religious liberty protections entailed in the bill were insufficient. For this, she says she was “blasted by the GLBT community.”

If you believe anything short of celebrating the LGBT lifestyle is hate, the only one reason to give in to religious bigots is political necessity. And if you are going to be forced to offer protections in order to get the vote you want, you are going to confine their reach as much as possible. It is no surprise that legal experts, including some who support marriage redefinition, agree that religious liberty exemptions don’t go nearly far enough in New York, Minnesota, or basically anywhere else same-sex marriage has become law.

As for the reverent business owner? Masci acknowledges that “None of the states grant exemptions to businesses who, for religious reasons, might not want to provide services (such as catering or wedding photography) to gay and lesbian couples.” So-called “non-discrimination” statutes enacted at the state or municipal level actually increase the punitive options available to localities that want to rid themselves of disfavored religious beliefs and practices. Sorry, Christian florists, bakers and photographers. Refusal to deny services for a same-sex wedding or commitment ceremony will result in penalties and fines. That’s just the cost of citizenship.

Faith-based businesses in the wedding industry are not the only group whose fundamental freedom of religion is being trampled. Professionals in fields requiring certification, such as therapists, nurses and lawyers are often required to affirm statements and participate in activities that violate their religious convictions.

Stingy standards are not unique to same-sex marriage legislation. With regard to the HHS abortion and contraception mandate, faith-based non-profits like Catholic Charities in Massachusetts and Bible-publisher Tyndale House fail to meet the narrow standards for religious freedom protection. When a Bible publisher is not considered religious enough to warrant an exemption, the law is broken.

Religious freedom as nothing more than exemption is concession; little more than the slow and incremental surrender of a basic human right. The Supreme Court will likely rule on these issues in the next year and religion may win under the rubric of exemption, but it is unlikely the Court will wipe the slate and reinvigorate the free exercise clause. It is the responsibility of the people to revive and rebuild a culture of religious freedom, one that values the vital contributions of faith-based individuals and organizations. Or, at least, one that understands that if the state can tell a person what to believe, or deny the right to conform one’s life to her beliefs, it can do anything.

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