Christian Evangelical Religious Liberty Laws Are Not A License to Discriminate by Thomas Martin Saturday


First it was the Hobby Lobby case where a business now has the right to limit health benefits of employees due to the owner’s religious feelings. Then there was a case where Catholic Hospitals essentially wanted to control their employees access to health care based on the faith’s requirements-and not those faith beliefs of their own employees. We’ve witnessed the refusal of clerks in Kentucky to allow gay marriages as it does not comport with their religious views.

We’ve got anti-LGBT bathroom laws in North Carolina and other states aimed squarely at harming, discriminating, and excluding LGBT persons. Kentucky is set to vote on a law barring interracial marriage, something settled in the State since 1967. I fully expect Southern states to re-assert Jim Crow segregation laws there. It will happen.

The religious right in America has been screaming about the imposition of Sharia Law as Muslims have come to the United States. Ironically, it is a Christian American Taliban that is now imposing its religious holy writ on Americans of other faiths or who simply do not practice a faith in formal terms, or one that is more tolerant and loving. The nation has long ago moved to a more tolerant view of racial, sexual, gender, ethnic, and religious matters since the Civil Rights Years between 1954 and 1968.

The First Amendment to the United States Constitution does not permit government to place in being a government religion or a preference for one belief over another. The primary reason our founders disallowed that in our Constitution was that they had the religious wars in Europe in the 16th, 17th and 18th centuries right in front of them. When the state makes a religion favored over others or beliefs over those of many citizens, that do not fit with that religion, it invites division and social tension that is unnecessary and harmful–and customarily leads to violence.

Many States have in the past 20 years adopted religious liberty laws that in fact DO protect the right of citizens to pursue various faiths, and so be free from persecution. But in recent years, particularly since the Supreme Court’s ruling to permit gay marriage as a right contained within the 14th Amendment, those Christian fundamentalists decided that their faith must inform our laws above everything else. Jefferson was right in pointing out in a letter that there is a “separation between church and state.” It’s not worded that way in the First Amendment, yet by barring government from favoring one religion over another, or actually establishing a state church, it amounts to the same thing.

For a long time–going back a century and more, the right of persons in their private capacities to seek to excuse themselves personally from a law based on their faith has been and continues to wisely be settled law. Notably, in 1942, the Seventh Day Adventists won a decision to have their children excused from reciting the pledge of allegiance every morning at school. The faith did not permit them to take oaths. It did not say that that faith could and should bar anyone else from reciting it.

Previous religious liberty laws protected citizens and still do from privately having to subscribe to things they by faith or conscience cannot. The case of the famous Kentucky clerk was not under these laws, as she was County Clerk of her County. She was and is an agent of the State of Kentucky, and Kentucky adheres to the laws of the United States of America. Had she been forced to approve simply as a private citizen, her objection would be noted and allowed. We can all refuse to participate in laws or acts that our faith or conscience disallows.

Businesses are a public interest in a community, and the 14th Amendment requires, along with the Civil Rights Act of 1964, that customers not be turned away based on their beliefs or racial, ethnic, or religious affiliation. Sexual orientation and a person’s gender ID has been increasingly included. The 14th Amendment’s Equal Protection Clause giving each of us as citizens the right to expect the “equal protection of the laws” refers to equal treatment under the law.

It means we all get to have the same rights as citizens individually. It means that laws should not be applied to people of one group more expansively, then limiting those rights for another of a group with a different characteristic or belief. It does not and should not extend to any of us the right to interfere with another citizen’s equal protection legally, or excluding or discriminating against the liberty of others. It is precisely what the spate of all these laws are aimed at doing.

Under the cloak of religious freedom and liberty we are witnessing on a massive scale businesses that operate in public and are regulated by law operating by discriminating against others. And these laws are giving wide avenues and expansive opportunities to permit the state, meaning government, to discriminate against those with minority beliefs, and various characteristics to be treated unequally by the laws–an express violation of the 14th Amendment.

A great legal yardstick for understanding how far our preferences and feelings and actions should go in protecting our liberties came from Supreme Court Justice Oliver Wendell Holmes. He noted that we all have liberty and freedom insofar as in reaching out our arms, metaphorically speaking, out until they would come into contact with the arms of others. These new laws have positive proscriptions against certain things based on religion and social conscience, allowing people to discriminate actively rather than simply bowing out of things with which conscience or religious belief demands privately. It is even being extended to the modern state on the state level, permitting liberties of minorities to be reigned in based on the religious feeling and social conscience of a majority of lawmakers who may be from the majority religious community. That would be of course the Judeo-Christian Community.

These Christian fundamentalists are acting precisely like the Muslim fanatics they fear so much bringing Sharia Law into our Constitution. Bringing Christianity to the exclusion of other religious faiths, beliefs, and the consciences of others is like reaching out with your arm and smacking someone else down to protect your right to extend your arm.

Our religious liberty reform acts are designed to prevent religious persecution or that of conscience. Now, the dominant religious majority is telling the rest of us what we can and cannot do simply by the color of our skin, what we think, what we say, our sexual orientation, gender ID, ethnicity, and so on. We all get our rights and liberties protected. Excluding or limiting the rights of others in the name of religious liberty is just plain immoral and wrong. And it violates our Federal Constitution and Federal Laws in many places.

Free speech to say what we believe or to express it in the arts is fully protected speech. Even speech which violates the conscience of the majority of a community. When those ideas, and free expressions hurt other people by action, the First Amendment protections do not exist. Of course the precise place where the line between free speech meets with that expressed by action toward others does shift with each set of court decisions.

Of course the reason for all these laws is also due to social and demographic conditions that are changing rapidly in the nation. Census figures for the past several decades have shown that live births to white people have declined markedly, while those of racial minorities have soared. That, in addition to the immigration legally of so many people of color.

Social attitudes have drastically changed in our nation as history is made, and one generation after another reacts to new technologies, resisting being just like their parents, and where people over time become more tolerant of other people who are different than they are through the experience of knowing others in their communities. The entire 2016 presidential race is based on the great last gasp of white Americans who see these changes, and who never accepted any of them dating back to the 1960’s.

Today’s Millennial generation, and that which is to follow are much more tolerant than their parents or grandparents. The Baby Boom generation is evenly divided between those who ratified the upheaval in race relations and social liberty in the 1960’s and those that never have; the culture wars. The only means for those opposed to changing American social conditions is to find means to have a declining white majority still rule the rest of us–even if it violates our Constitution of the United States. That is just what we are seeing, smelling, and turning away from. Discrimination based on race, ethnicity, gender, sexual orientation, religion, or gender ID is repugnant to the majority of us as so many polls of our opinions show nationwide. No, polls are not laws, but we know that returning America to the 1950’s takes us into the dark.

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