Bakers, photographers and florists who, for religious reasons, have balked at helping to celebrate gay unions, are being driven out of business by ruinous, vindictive lawsuits. The sad story of Baronelle Stutzman, a florist sued by two long-time friends and customers because she balked at providing flowers for their wedding even though she recommended other florists who could provide the service, is the tip of a very troubling iceberg.
Academics who espouse certain religious views that until the day before yesterday were considered mainstream would be denied employment at many universities around the country if their religious beliefs were known to their potential employers.
Charles Haynes explains in an article at the Washington Post how the federal government's Commission on Civil Rights has been working to undermine traditional religious liberty protections. Haynes writes:
Nearly 225 years after the ratification of the First Amendment to the U.S. Constitution, the cause of conscience protected by the principles of “no establishment” and “free exercise” may be losing support in the minds and hearts of the American people.Haynes cites a commonsense solution to the problem of balancing civil rights and religious liberty rights:
Appeals by religious individuals and groups for exemption from government laws and regulations that substantially burden religious practice are increasingly unpopular and controversial. So much so that many in the media have taken to using scare quotes, transforming religious freedom into “religious freedom.” Now the U.S. Commission on Civil Rights appears to be recommending that we make it official: Our first freedom is first no more.
According to a commission report released Sept. 7, “civil rights protections ensuring nondiscrimination, as embodied in the Constitution, laws, and policies, are of preeminent importance in American jurisprudence.”
If we accept this assertion, it means that conflicts between religious freedom and nondiscrimination principles are resolved by denying accommodation for religious conscience — except perhaps in very rare and narrow circumstances.
According to the findings of the commission:
“Religious exemptions to the protections of civil rights based upon classifications such as race, color, national origin, sex, disability status, sexual orientation, and gender identity, when they are permissible, significantly infringe upon those civil rights.”
Consider, for example, the bitter conflict over allowing county clerks to opt out of performing same-sex marriages. Last year, Utah passed legislation designed to prohibit discrimination against LGBTQ people while simultaneously protecting religious freedom.Wouldn't it be to the benefit of everyone's rights if when someone feels they're being discriminated against for putatively religious reasons to have the court, instead of declaring winners and losers, appoint an arbitrator to work out an accommodation that could be mutually satisfactory and beneficial to all parties? This is what we do in labor disputes, and I don't see any reason why it couldn't be done when constitutional rights conflict. Why, after all, do people feel that someone always has to be punished and possibly ruined because they'd rather not be the florist that provides flowers at a plaintiff's wedding?
A key provision of the Utah law ensures that county clerk offices perform marriages and that a clerk be readily available to marry same-sex couples. A clerk may opt out of performing a same-sex marriage if, and only if, another clerk is available to issue the license and perform the ceremony. Under this balanced approach, same-sex couples are provided the service (without knowing who, if anyone, has opted out in the clerk’s office) and religious conscientious objectors are accommodated.
Unfortunately, the commission’s report does nothing to encourage — and, I would argue, actually discourages — efforts like the one in Utah to find a balance between nondiscrimination and religious freedom.
The title of the commission’s report alone speaks volumes: “Peaceful Coexistence: Reconciling Nondiscrimination Principles with Civil Liberties.” First, the wording suggests that religious freedom is a “civil liberty,” when in truth it is a fundamental, inalienable right protected by the First Amendment. And second, the commission’s report is less about reconciling differences and more about asserting the primacy of nondiscrimination over religious freedom.Haynes finishes with this bit of wisdom:
It’s time for all sides to reaffirm equality and liberty as twin pillars of the American republic. Authentic peaceful coexistence requires moving from the zero-sum game described in much of the commission’s report to the level playing field required by our constitutional commitment to both nondiscrimination and religious freedom.There's no reason why we can't have both.