Does God Really Want Us to Discriminate?
Last Week the Supreme Court announced that it will hear a case brought by a baker who claims it is against his “sincerely held” religious beliefs to bake a cake for an LGBT wedding. That started me thinking about how the Court might parse the thin line between protecting an individual’s right to freedom of religion while still protecting society’s right not to suffer discrimination.
Before I begin, you should know that I am not a religious person. I was raised in a church-going family (every Friday night to MYF, every Sunday morning to Sunday school and church services.) I was in a church-sponsored Boy Scout troop earning the rank of Eagle Scout and a God and Country award. So I am not unfamiliar with a religious (or at least Christian) life. In all fairness to the reader, though, it has been more than 50 years since I practiced one if going to church is required to qualify as “practicing”.
I do though consider myself a spiritual person. I accept that there are things in our universe that are as yet unexplainable. I just do not believe any of the major religions do a very good job explaining them.
Having said that I have close friends and relatives who do believe. I respect that and them and accept their religious beliefs as sincerely held. I afford that same courtesy to our baker.
The second thing you need to know about me is that my niece is a lesbian and one of my nephews is gay and married. I thought they both were smart, kind and wonderful people before they told me about their sexuality and none of that changed a whit after. I loved them dearly before; I still do.
So, with that as context, here is the issue going before the Supreme Court.
The law says:
All persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation … without discrimination or segregation on the ground of race, color, religion, sex or national origin.
The technical legal question is whether discrimination on the basis of sexual orientation, while not specifically listed as a protected class is nonetheless covered under “sex”. The broader issue is whether every type of discrimination must be specifically listed to be covered. If I have an aversion to adulterers, may I refuse to serve them in my store? More to the point, if I have a sincerely held religious belief that breaking any of the 10 commandments is an affront to my god, would your answer be different?
The 1st Amendment to the U.S. Constitution says:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof….
The baker says that the Colorado law puts him between a rock and a hard place. He can either provide a wedding cake celebrating a marriage that he and his religion find an abomination before his god or he can suffer punitive consequences under state law. That choice he alleges is an unreasonable infringement on his constitutional right to freedom of religion.
It is possible, maybe even likely that the Court will craft some narrow, legalistic path to address this specific issue and kick the can down the road. I hope they don’t. I think we would benefit from a national debate about how to balance our individual rights with our obligations as a member of a civil society.
Finding that balance has never been easy and whatever balance we may have found on a given issue has never been permanent nor universally accepted. Finding balance on this issue will be even more challenging given today’s hyper-partisan emotions. And, yet, because of those emotions, it will be ever more important that we get it right.
So, here we are. We have a Colorado baker who sincerely believes that his religion (his god) does not accept gay marriage and that any law that requires him to participate in a gay marriage ceremony infringes on his right to worship his god freely. We also have a couple deeply in love and wanting to be married so they can spend their lives together and enjoy all the legal and social benefits our society reserves for married couples. Neither the baker nor the loving couple want to suffer discrimination.
This seems to be a zero sum equation — to meet one set of needs, the other seemingly must give up theirs. Maybe we can find a middle ground that givers neither all they want, but gives each enough.
After all, we have accepted norms already in place in many areas where we each give a bit of our personal freedom for the greater good of the community within which we live.
— We practice majority rule. Just because my candidate was not elected does not mean that I can ignore laws enacted by the majority.
— We practice universal taxation. Just because I have no children in public school does not mean that I can skip paying my local property taxes.
— We practice being a nation of laws. Just because someone has committed an illegal act against me, I do not have the right to retribute directly. I must turn to the law for satisfaction.
In these and many other instances, we have accepted that the price of a functioning civil society is that we each must cede a bit of our individual freedom for the greater good.
These examples, though are so mundane they highlight why religious freedom is such a perfect foil for the matter at hand. Religious beliefs are never mundane, they are intensely personal, often based more on faith than objective logic. A successful agreement on how to balance religious beliefs with society’s more secular norms might be a powerful paradigm for how a diverse community like ours can live together in harmony.
So, where do we start dissecting the argument? We have acknowledged that the free practice of religion is a constitutional right. We have acknowledged that no law can prohibit the free practice thereof. We have acknowledged that the baker has a sincerely held belief that supporting gay marriage in any way does so infringe.
Maybe one place to start is to step away from the hypothetical and turn to real instances where sincerely held religious beliefs actually infringed on the rights of others.
— In 1955, I was attending a kindergarten located in the basement of Hatcher Memorial Baptist Church on Dumbarton Road in Richmond, Va. The church housed a large congregation with a well-respected minister. I can remember riding to school hearing this minister on the car radio stating with absolute certainty that school desegregation was against the will of god. If god had wanted the races to commingle, he would have made us all the same color. This minister based his refusal to integrate on that sincerely held religious belief and young black children were excluded from kindergarten.
— Fifteen years later, In 1971, as a student at William and Mary I began a senior thesis focused on the landmark busing litigation about the Richmond area schools. Watching the minister leading the opposition to forced integration busing, I observed that he sincerely believed that integration of the races (20 years after Brown v Board of Education) was still against the will of god. Black students were excluded from better schools.
In both these cases, good people with sincerely held religious beliefs faced with laws of man requiring the mixing of the races found themselves caught between the same rock and hard place as our baker today. These people eventually found a balance. In fact, I believe that most Americans would be appalled if someone stood up today and argued that it infringed their freedom of religion to bake a cake for a wedding of a black couple.
— In the summer of 1962, I was on a train with dozens of other Boy Scouts headed for Philmont Scout Ranch for 2 weeks of hiking and camping in the Rocky Mountains. We were all from troops sponsored by churches in the Richmond area. During our 3-day train ride, we had to sort ourselves into groups of 10 to 12 who would go on the trail together. I was lucky in that I was already with several other friends from my troop. We only had to add a few other scouts to fill our complement. On the 3rd day, a lone scout came up to us and asked if we would please let him go on the trail with us. He said that no one else would let him join their group. He was the only scout whose troop was sponsored by a synagogue. The other scouts — all from Christian churches — sincerely held religious beliefs about what Jews did to Jesus Christ and did not want to hike with one of them.
Again, since then, we have somehow managed to find a livable balance between christians and jews in our country. Can you imagine anyone today arguing that it infringed their religious freedom to bake a cake for a bat mitzvah?
— In 1991, DuPont was debating whether to add “sexual orientation” to its non-discrimination policy. As part of that discussion, I heard the then CFO state that he could never allow such a change. His Baptist faith considered homosexuality an affront to god. Later that same day, I had to tell a long service employee that the policy was not changing and that he was being laid off. I tried to reassure him that his package of severance pay, outplacement support and COBRA healthcare was both generous and adequate to help him transition to another company. He told me that his same sex, stay-at-home partner of more than 20 years had just been diagnosed with HIV-Aids. His partner was now uninsurable. Our employee had been praying a change in the non-discrimination policy would make his partner a dependent eligible for health care coverage. Now he was being told that would not happen and he was losing his job.
That night, I drove home knowing that the CFO sincerely held his religious belief, but also having just seen up close and personal one consequence of his freedom to practice it.
As I reflect back on these instances, I wonder how we have evolved from sincerely held religious beliefs that once justified discrimination to today’s still incomplete, but much expanded societal expectation of equal treatment for all people. No one issued a new version of the Bible that changed the religious rules and the march for expanded freedoms by those suffering discrimination has certainly not slowed. Yet somehow we had found a new balance on some issues. The question is how?
A cynic might suggest that a new balance has actually not been found; that our behaviors have not really changed all that much. A cynic might argue we are just more subtle and have found other rationalizations to justify discrimination in our society.
An optimist might suggest that contrary to the old saw familiarity does not breed contempt. It instead sows seeds that can lead to understanding and acceptance. An optimist might argue that as our civil laws cause us to rub shoulders more often with those who are different from us, we will find that many, most, almost all are good people with whom what we have in common far outweighs our differences. An optimist might argue that as we get to know each other as real people it will be difficult to demonize those differences. An optimist might conclude we will all then find it easier to evolve our thinking about what Jesus would really want us to do and then find expanded ways to accept each other as equals under whatever god one chooses to worship or not to worship.
My hope is that the Supreme Court will be an optimist in their opinion.