The Big Question of religious liberty in our time has yet to be answered by the U.S. Supreme Court. It’s a question that tests the Court’s commitment to protecting individual rights against a majority intent upon trampling them.
The question is: should people of faith be forced out of business by anti-discrimination laws for refusing to assist in what their faith condemns?
We had hoped the question would be answered when the Court vindicated a baker who refused to bake a wedding cake for a same-sex couple. But the state there had shown such extreme hostility toward the baker’s faith that the Court’s ruling did not reach the broader issue. So the Big Question remains.
Now, the case of Arlene’s Flowers, Inc. v. Washington offers the Supreme Court another chance to answer it. Until then, lower courts will continue to reach varying conclusions. And with an issue this central to America’s soul, outcomes should not hinge on geography.
We’ve been headed toward the Big Question for a long time.
With legal recognition of same-sex unions achieved, advocates have raised the bar. They seek to use the iron fist of the state to force dissenters to kneel before the new orthodoxy. They have done this most effectively through state and local laws making “sexual orientation,” and in some cases, “gender identity” what are called “protected classes” under “public accommodation laws.”
Most states have one of these laws in place, precluding businesses that are open to the public from discriminating against customers based on certain factors. The list varies from state to state, but the most common protected classes are race, sex, national origin, and religion.
In practice, adding “sexual orientation” to that list has resulted in states treating people of faith — people who believe what they have always believed about sex, gender, and marriage — as bigots. This is a tough reality for the faithful to swallow. In fact, I suspect that the sheer discomfort of being labeled a “bigot” — however unjustly — has caused many to abandon their beliefs.
The truth is, the behavior that is putting the faithful in conflict with these laws is not bigotry. And in fact, the state is forbidden to punish it as such. America needs to understand why.
State public accommodation laws are based on good intentions. States passed them because the majority of citizens wanted to ensure fair treatment of classes of people who tended to face discrimination in the marketplace — most notably, racial, ethnic, and religious minorities.
We saw the injustice of a man being turned away from a lunch counter because of the color of his skin. So we used political power to forbid it. And that was just fine, because serving a customer in a diner does not implicate the server’s basic rights.
But consider what is triggering these laws’ protection for sexual orientation. No one is refusing service to same-sex couples at lunch counters. Christians are respectfully turning down business contracts that would have them profit from an act that violates their faith — the same-sex wedding ceremony.
In fact, one common fact in the cases of the bakers, calligraphers and florists who have been persecuted under these laws is that none of them refused service to gay people or same-sex couples. They only refused to service the wedding ceremony itself.
There is a crucial legal difference here that must not be minimized.
When a person of faith refuses to assist in celebrating a same-sex union, he or she is exercising core individual liberties. We enshrined these freedoms in the First Amendment in order to place them beyond the reach of lawmakers and popular majorities. As the Supreme Court said back in 1943, “Fundamental rights may not be submitted to a vote; they depend on the outcome of no elections.”
In other words, no state law — no matter how many citizens support it — can give a class of people the power to demand that I celebrate something my faith forbids. Our system of government is justly zealous for the natural rights of individuals. In our modern tendency to think in terms of classes, we must be careful not to trespass those sacred grounds.
Rita Dunaway lives in Harrisonburg and is the author of "Restoring America's Soul: Advancing Timeless Conservative Principles in a Wayward Culture." Her column appears on thestream.org.