“Great op-Ed on what’s at stake with state RFRA, businesses, and homosexuals.” – Professor Marci Hamilton
BY DOUG MCKENNA (Daily Camera Guest Opinion)
Posted April 9, 2014
Charlie Danaher’s op-ed (March 30) —about businesses and their owners allegedly being forced to sin — suffered from some misunderstandings about liberty, discrimination, and religion.
The First Amendment right to believe or espouse anything one wants without government interference is, of course, to be cherished. As Thomas Jefferson said, “It does me no injury for my neighbor to say there are 20 gods, or no god. It neither picks my pocket nor breaks my leg.”
But when pockets are picked and legs broken, the First Amendment is not carte blanche to conduct oneself in violation of other people’s rights. There is rock-solid American jurisprudence, going back over a century, holding that when government accommodates religion that accommodation violates the First Amendment when specific third parties are harmed.
Adding fat to the fire, the abhorrent statute on which Danaher pins his hopes, the federal Religious Freedom Restoration Act (RFRA), essentially gives religious people and their institutions the ability to violate neutral laws that the rest of us must abide by.
The RFRA is considered by many legal scholars to be flat-out unconstitutional, in violation of both the Establishment Clause and the Separation of Powers (see http://rfraperils.com).
The Hobby Lobby case — asserting that for-profit corporations are religious persons — is relying upon the RFRA. We will all, including religious people, be better off when the RFRA is struck down and/or Hobby Lobby loses.
But Danaher’s primary error was his assumption that gay or lesbian couples suffer no harm when public accommodations such as wedding-related businesses collectively discriminate against them, in violation of a statute that protects gay people(and a few other classes) from such conduct in the public marketplace.
To the contrary, harm is invariably caused by acting upon odious religious tenets based on antiquated, metaphorical, non-scientific notions that are out-of-sync with demonstrable reality.
The world is not flat, the sun does not revolve around the Earth, conception is not magical, and it turns out there is a biological diversity to gender identity among monogamous couples that has nothing whatsoever to do with “sin” and everything to do with commitment and love.
The world Danaher desires would be an unjust, Balkanized world, where, for instance, any storekeeper on the Pearl Street Mall could refuse to do business with any person wearing a Christian cross around her neck. That is a debased world we’ve seen in the recent past, and it’s really, really not pretty. Indeed, it is a world at odds with religious freedom.
Suffering from self-created cognitive dissonance between reality and dogma, the Catholic church and other conservative religious organizations love to play the persecution card. This is no different from how some religious folk in the past complained about mixed-race weddings being an affront to Christian religious tenets.
Back in the 1960s, when a Virginia judge ruled against the Lovings, a mixed-race couple threatened with 25 years in jail, he too was guided by his dogmatic biblical views, writing:
“Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with this arrangement there would be no cause for such marriages. The fact that He separated the races shows that He did not intend for the races to mix.”
In short, he considered miscegenation a sin (dark skin being the mark of Cain, and all that metaphorical nonsense). But the U.S. Supreme Court eventually overturned this religious non-reasoning as violating neutral Equal Protection guarantees.
Simply replace race with sexual orientation, and you’ve advanced the clock a half-century. And hip-hip-hooray!, we are now in a very similar time of progress with respect to treating gays and lesbians equitably under the law.
Much of Danaher’s argument was based on the seven-year-old Elane Photography case out of New Mexico. He was hoping that the U.S. Supreme Court would take the case and reverse three lower state courts that unanimously ruled that that business violated state anti-discrimination law.
But the Supreme Court has now properly refused to hear any final appeal at which so many religious narcissists, imagining they are defending freedom, have been grasping.
Anyone interested in this issue should read the New Mexico Supreme Court’s decision, especially its special concurrence (search the web for “Elane Bosson concurrence”). Reciting the legal history of irrational discrimination, and channeling Thomas Jefferson, Justice Bosson wrote:
“In a constitutional form of government, personal, religious, and moral beliefs, when acted upon to the detriment of someone else’s rights, have constitutional limits. One is free to believe, think and speak as one’s conscience, or God, dictates. But when actions, even religiously inspired, conflict with other constitutionally protected rights–[such as] the right to be free from invidious […] discrimination–then there must be some accommodation.”
Bosson then concludes, “at some point in our lives all of us must compromise, if only a little, to accommodate the contrasting values of others. A multicultural, pluralistic society, one of our nation’s strengths, demands no less. … [I]t is the price of citizenship.”
Amen to that.
Doug McKenna lives in Boulder.