Can State Governments Impose Religious Beliefs on Private Business Owners? – Arlene’s Flowers v. Ferguson

Arlenes

A news report out of Washington State reenergized my interest in writing about the threats to First Amendment Rights in this country, largely from those who hold to the doctrine that sexual freedom is an ultimate right.  According to the Daily Signal, a Washington judge ruled this week that a 70 year old florist was guilty of violating the states anti-discrimination laws when she refused to make floral arrangements for a gay wedding. In his 60-page opinion, the judge writes: “No court has ever held that religiously motivated conduct, expressive or otherwise, trumps state discrimination law in public accommodations. Religious motivation does not excuse compliance with the law.”

It is worth nothing in this case that the florist, Mrs. Barronelle Stutzman, gladly serves gay customers, and the man who filed the lawsuit was a long-time customer of hers.  But when he asked her to provide services for his wedding, she declined on grounds of conscience informed by her Christian faith.  She recalls: “I put my hand on his and said, ‘I’m sorry Rob, I can’t do your wedding because of my relationship with Jesus Christ. We talked a little bit, we talked about his mom [walking him down the aisle]…we hugged and he left.”

The court ruling ignores the difference between moral discrimination and amoral discrimination.  To “discriminate” simply means to recognize a distinction between.  Thus moral discrimination means to recognize the difference between good and evil.  Every human being does this; it is a function of the human conscience.  The kind of discrimination that has come to give the word such a toxic connotation is of an amoral nature.  It is a prejudicial judgment of a person’s worth based on characteristics that lack moral properties. The reason while racial discrimination is generally unjust is because it, as MLK Jr. famously said, judges someone “by the color of their skin, not the content of their character.” Other amoral characteristics that may be a basis for discrimination include gender and age.

As an aside, it is highly questionable whether the government ought to regulate even amoral discrimination in the first place, especially over private businesses. The oft quoted liberal aphorism (used in relation to eliminating anti-abortion and anti-sodomy laws) that it is not the government’s job to legislate morality applies here. Our country has a tradition of upholding private business owner’s freedom of association (i.e. freedom to refuse business on any grounds they see fit).  Thus, even if a business owner discriminates on amoral grounds, and such behavior is morally objectionable, why should the government get involved in the first place? People should be able, normally, do to business with whom they please.  The free market will punish those who turn away business and thus lose market share or refuse to hire the most qualified employees based on such characteristics.

But this ruling in Washington goes beyond such discrimination and attempts to regulate moral discrimination of private citizens. That is it seeks to use the force of the state to coerce people into suppressing moral judgments the state disagrees with, and act according to those moral judgments the state approves of.

In this case, Mrs. Stutzman, on religious grounds, finds gay marriage to be objectionable. This is not some fringe, cultish religious conviction, but one that is held by tens, if not hundreds, of millions of U.S. Citizens, and represents consensus across all major religious traditions. It is firmly grounded in widely and sincerely held religious belief. She believes that she would be sinning against God if she supported a gay wedding by providing services for it. You may disagree with her moral convictions, and her religious basis for them, but the U.S. Constitution constrains the state from using its power to suppress the expression of them. Clearly, the state of Washington’s anti-discrimination laws are prohibiting her free exercise of religion.

But they are doing even more than that. I argue that such rulings interpret anti-discrimination laws in such a way as to establish religious belief. This is because they are forcing people to accept an certain concept of marriage which is not and indeed cannot be religiously neutral. The state of WA is in effect saying, “You cannot express publicly this religious-based belief that marriage should only be between one man and one woman; instead, you can only express publicly the state sanctioned belief that marriage is whatever arrangement two adults please.” These beliefs about marriage are themselves derived from faith commitments concerning the purpose of human existence, the meaning of life, the nature of man, etc. And in instances like these throughout the country, state and local governments are punishing those that disagree with these doctrines and express disagreement publicly.

Friends, such actions are a threat to our fundamental freedoms. I urge you to fight for our First Amendment rights to differentiate between right and wrong on religious grounds and act publicly on such judgments. Without this first freedom, other freedoms will gradually be eroded.

The Hobbit and the Problem of Disordered Affections: Thematic Analysis of The Battle of the Five Armies

thorin

The final installment of the Hobbit films (and of Peter Jackson’s Tolkien-based movies) opened this weekend.  While I concur with the critical voices of the Hobbit trilogy that the story was strung out artificially out of corporate greed and that the violence of these films was excessive, betraying the essence of the Hobbit as a children’s story, I commend Peter Jackson for continuing to portray faithfully Tolkien’s vision of the nature of evil and understanding of the corruptibility of human nature.

The newest Hobbit film tells the story of the aftermath of the dwarfs’ recapture of the Lonely Mountain. Having driven the dragon Smaug from their ancestral home, the dwarfs can now reclaim the hordes of gold and other treasure that were guarded by the dragon.  Thorin, the heir to the dwarf throne and leader of the company, soon succumbs to “dragon-sickness” – an psycho-spiritual condition, akin to greed, induced by the gold.  The “dragon-sickness” manifests itself in stubborn pride (Thorin refuses to listen to the council of friends) and in self-centered obsession with his treasure (he also refuses to give over any of it to those making legitimate claims on it).  Though Thorin is the rightful king, he is not sovereign:  the gold is sovereign over him to the point where he will sacrifice both his integrity and his friends to it.  He sacrifices his integrity by not honoring his promises to the men of Lake Town, promises he made publicly to reward them for their help after his people were originally invaded and exiled by Smaug.  He is willing to sacrifice his friends by plunging them into an unnecessary war against the men and elves making claim on the treasure.

The story makes Thorin’s folly clear:  he is taking something that ought to be valued more (integrity and friends) and subordinating it to something that ought to be valued less (treasure).  The consequences are unmistakably disastrous.  Renowned 4th century theologian Saint Augustine understood that all humans participate in Thorin’s folly.  He understood that human’s hearts are profoundly sick with disordered loves:  that is things we ought to love less, we love more, and vice versa. Augustine writes that we need to re-order our loves:

But living a just and holy life requires one to be capable of an objective and impartial evaluation of things: to love things, that is to say, in the right order, so that you do not love what is not to be loved, or fail to love what is to be loved, or have a greater love for what should be loved less, or an equal love for things that should be loved less or more, or a lesser or greater love for things that should be loved equally. (On Christian Doctrine, I.27-28)

In other words, an objective economy of things exists (integrity and friends are really more important than material riches) and our personal valuing of things (our loves) ought to be in harmony with this moral order.  When our loves are not aligned with this objective order, they are disordered.  This disordering is the essence of sin and it inevitably unleashes destructive forces into our world:  our hidden disordering in our hearts results inevitably in the disordering of our lives. As C.S. Lewis observed, when our loves our disordered it destroys our enjoyment of everything:

The woman who makes a dog the centre of her life loses, in the end, not only her human usefulness and dignity but even the proper pleasure of dog-keeping.

The man who makes alcohol his chief good loses not only his job but his palate and all power of enjoying the earlier (and only pleasurable) levels of intoxication.

It is a glorious thing to feel for a moment or two that the whole meaning of the universe is summed up in one woman—glorious so long as other duties and pleasures keep tearing you away from her. But clear the decks and so arrange your life (it is sometimes feasible) that you will have nothing to do but contemplate her, and what happens?

Of course this law has been discovered before, but it will stand re-discovery. It may be stated as follows: every preference of a small good to a great, or partial good to a total good, involves the loss of the small or partial good for which the sacrifice is made.

. . . You can’t get second things by putting them first. You get second things only by putting first things first.

Of course, God occupies the highest place of this order; people follow.  This is why integrity (who we are before God’s all knowing eye) and friendship is more important than material things. Only we order our loves rightly can we relate to God, people, and things as we ought.  C.S. Lewis again echoes Augustine’s theme:

To love you as I should, I must worship God as Creator. When I have learnt to love God better than my earthly dearest, I shall love my earthly dearest better than I do now. In so far as I learn to love my earthly dearest at the expense of God and instead of God, I shall be moving towards the state in which I shall not love my earthly dearest at all. When first things are put first, second things are not suppressed but increased.

Ordering our loves rightly is an ongoing struggle won by repentance.  This is what Thorin has to do: turn from regarding his gold as most important and put his integrity and friends in their proper place.  Only then is his will enabled to do what is right. May God help us do likewise!

When Rights Conflict, part 2: How to Determine which Rights are Natural

The question of how to determine which rights are natural seems difficult to answer conclusively.  My attempt to establishing some guiding principles here are not informed by a proper education in law or moral philosophy, so I expect and invite critique.  I will begin with what I think is intuitively obvious: a right is natural if it is derived from what is ‘natural’ in man or an innate characteristic of human nature.

An innate characteristic of human nature would be, by definition, universal:  applying to humans across time and space. It would not be contingent, therefore, on when or where one lives and thus not vary with factors that change with space and time. An example would be the possession of a moral conscience.  Humans by nature are moral agents, having a moral sense by which we judge ourselves and others’ actions.  While some moral standards may vary among cultures present and past, the presence and execution of moral standards does not: to be human is to possess a sense of oughtness. Hence, a right to freedom of conscience, being derived from this innate quality, is a natural right.

Conversely, a socially-constructed right would be derived from some quality that is ‘unnatural’ – a characteristic that is not innate but contingent on circumstances (and can therefore be ‘alienated,’ i.e. separated from us).  Abilities (what we are capable of doing) are such a characteristic.  Abilities vary from culture to culture, across space and time, because of technology.  For instance, we now have the ability to control birth artificially – an ability that has increased dramatically in the last 100 years.  This ability has given rise to the idea that we have a right to contraception, and not just the freedom to practice it but the expectation that the state enable it by forcing the public to pay for it.  This cannot be a natural right, though, for the simple reason that cannot be had by nature of being human:  it can only be had by humans who live at a time and place where they have a certain ability.

The conflict between these two rights was the issue in the Hobby Lobby Supreme Court case.  The Court had to decide whether to uphold freedom of conscience against claims to a right to contraception.  I’ll look at this case more in depth in my next post.

When Rights Conflict, Part 1: Natural Rights versus Socially-Constructed Rights

First Amendment rights increasingly collide with other rights in our courts.   The right to equal protection under the law clashes with the right to exercise one’s conscience freely when Christian business owners refuse to service gay marriages.  A right to health care conflicts with the free expression of religion when a religious school refuses to cover certain contraceptives in its health insurance plans.  When rights conflict, how do we know which rights should take precedent?

This question may be too complex to take on in the medium of a blog.  It’s a question that I recently raised in the Ethics portion of my Theory of Knowledge class. Answering it requires an exploration of the nature of rights.

The Bill of Rights in the U.S. Constitution is based on the Enlightenment notion of natural rights.  A belief in natural rights is enshrined in the Declaration of Independence:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.

Rights are described as “unalienable,” a term borrowed from property law.  James Rogers explains, “An “alienable” right over property means that the property can be sold or given away by the owner. Property that is “inalienable” cannot be transferred by the owner (First Things, “Rights You Can’t Give Away,” June 2012).” Hence, “unalienable” signifies something that cannot be given or taken away.  A natural right is unalienable because it is not foreign or external to human nature (such that it could be given away), but inherent in human nature (and thus cannot be given away since it is inseparable from us).  So while I can give my time and treasure to the State (alienable), I cannot give away my conscience (inalienable).

In contrast to natural rights, which the State recognizes and secures, socially-constructed rights are invented and conferred by the State.  They are not inherent to human nature, but are contingent on the power of the State.  Simply, natural rights are discovered while socially-constructed rights are created.  Thus, natural rights are the same for all humans everywhere, transcending time and space, whereas socially-constructed rights vary with time and space.

This distinction may help resolve conflicts in rights.  If the conflict (meaning that protecting legally one right requires violating another) is between a natural right and a socially-constructed right, , the natural right should upheld first Natural rights should take precedent because they constrain the power of the state, setting limits on what demands the state can make of us. Rights that originate with State power cannot by nature restrain State power:  if the State creates them, the State can violate them.

This argument requires, of course, that one can discern which rights are natural: a question I will explore in my next post.

Facing Real Threats to Religious Freedom: the City of Houston and Free Speech from the Pulpit

Last week I promised to focus next on a recent victory for religious freedom in the U.S. federal court system.  Due to a serious and stunning event this week in Houston, I instead want to turn attention to how real are current threats to religious freedom in this country.

Some prominent local pastors’ sermons were subpoenaed by the city of Houston. The reason? These pastors were thought to oppose the Houston Equal Rights Ordinance (known by the Orwellian acronym HERO) – a city law which gives transgendered people the right to use public restrooms for the sex they identify with.  So, a biologically-endowed male would have access to women’s bathrooms if he claimed a transgender identity (how transgender claims would be validated is not at all clear; the problems this could cause are glaring). If prevented from using opposite sex restrooms, transgendered people have the right, under this ordinance, to file a discrimination complaint.

After HERO was passed by the city council, a petition was filed to submit the ordinance to a public referendum.  In spite of having over 50,000 signatures, the petition was rejected by the city.  Citizens filed suit against the city.  In response a subpoena was issued, seeking “all speeches, presentations, or sermons related to HERO, the Petition, Mayor Annise Parker, homosexuality, or gender identity prepared by, delivered by, revised by, or approved by you or in your possession.”

The sheer audacity of this move is stunning.  Here we have a local government using subpoena power to intimidate pastors into silence on moral issues that conflict with the government’s agenda. This is not only a direct threat to the free exercise of religion but obviously stifles free speech.

The good news is that the pastors refused to comply and the public outcry from around the country created such a public relations nightmare, that the mayor of Houston backed down, even blaming the attorneys who filed the subpoenas ‘pro-bono’ for the city. Thankfully, efforts to stand up to violations of First Amendment rights in this country will likely still succeed. But this can change in less than a generation if citizens refused to take stand.

To learn more, please see this commentary:

http://www.focusonthefamily.com/socialissues/defending-your-values/houstons-religious-freedom-problem

Preserving Religious Freedom: Understanding the “Establishment Clause”

bill of rights

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” – the First Amendment to the U.S. Constitution

According to the Bill of Rights page at archives.gov, our Bill of Rights was written to mollify criticisms of the Constitution that it did not do enough to check the power of the central government and would lead to the same kind of tyranny the former colonists knew under Britain. These critics demand that citizens’ immunities be spelled out explicitly.

This simple context is important to interpreting the First Amendment rightly.  These amendments were written to limit the central government’s, especially the legislative branch, power over its citizens.  They are an enumeration of the natural rights referenced in the Declaration of Independence as the transcendent grounds of revolution – the God-given rights which government exists to preserve.

It is significant then that the “Establishment Clause” of the First Amendment is about what Congress cannot do in terms of supporting or suppressing religion. It is not about what you cannot do as a citizen, what families cannot do, what businesses cannot do, what schools cannot do, what churches cannot do, or even what state and local governments cannot do (which makes me wonder about the extent to which state and local laws must abide by amendments directed toward the federal government – any contributions here would be appreciated).  Too often the First Amendment is misconstrued and misused by applying it too broadly to discourage other persons or institutions (who are not Congress!) from advancing the influence of religion in society. It is meant to protect us from the central government, whose inclination, as the history of Europe attests, is to wed itself to religion to advance its power interests, not from those who would freely exercise their religion by trying to promote it.

Such abuse of the First Amendment is often accompanied by appeals to the so-called “separation of church and state.”  This specious argument is used, it seems, when someone is uncomfortable with religious adherents engaging in religious activity in any kind of public space. Notice that this phrase has no part of the Bill of Rights.  Its origins lie in a letter from Thomas Jefferson to Baptist pastors in Virginia, assuring them that the Baptist church would not be oppressed by the government. This concept has no legal authority!

A second observation is that religious freedom is the first one enshrined in the Bill of Rights.  The order is no accident; this is not arbitrary.  The order speaks to the importance:  other rights/freedoms follow from the right to exercise religion without interference from the federal government. Why this is the case is a question I will explore in later writing.  Suffice to say that religion limits the power of the legislature by affirming the existence of and promoting the knowledge of divine Law, which limits the obligations the central government can impose on us, and that all men – the powerful and the penniless – are accountable to obey.

A final observation is that the two criteria laws must satisfy are in an either/or relationship.  In other words, a law is unconstitutional if it violates either of these standards.  More secular minded people are often very sensitive to the not establishing religion standard but ignore or downplay the free exercise part. Establishing religion has to do with using the power and resources of the federal government to establish a national Church.  It is not a license for suppressing the influence of religion in the public sphere, which the ‘free exercise of religion’ entails.

In my next post, I will look at some recent Supreme Court decisions where the First Amendment has been applied faithfully to uphold religious freedoms.

Renewed Focus Proposed

My infrequent blogging of late is indicative both of recent busyness and of motivation.  With so little interaction with readers over blog posts, I often wonder whether writing is worth it.  At first, I was motivated to write largely for myself, hoping that some people would read and occasionally benefit from what I had to say. But this motivation of late has not been enough to make it a priority.  I need to be spurred by some confidence that it may also be valuable to others.

With that in mind, I am considering a season of exclusive writing on a topic that I have touched on occasionally, but that I am finding is something that inspires my passions politically and socially perhaps more than anything else:  religious freedom.

While Americans still enjoy, relative to much of the rest of the world and to much of history, tremendous religious freedom, it is, I’m more and more convinced, as vulnerable as it has ever been in our nation’s short history.  Anyone who loves liberty enough to fight for it should be concerned about threats to religious freedom, regardless of their particular religious convictions, because religious freedom is the foundation for other freedoms.  Other freedoms are contingent on religious freedom because the right to live according to one’s religious beliefs is the main force that keeps the power of the state in check.  Religious freedom is about living according to moral authority that is higher than the authority of the state.  Without belief in such an authority and freedom to obey it, the authority of the state becomes the highest and ultimate authority, and thus has the power to encroach upon other freedoms.

This is what is on my heart to write more about.  But I need to know that it matters to others.  If you read this, please let me know what you think!