Sunday, September 6, 2015

Kim Davis and the Decline of Religious Liberty

Do you believe in religious liberty and freedom of conscience? Do you believe American law is obliged to protect citizens’ religious liberty?

A test case: Let’s say there’s a Muslim-owned print shop in Illinois and a man comes in wanting to print 500 copies of a pamphlet he wrote. Rashid, the owner of the shop, sees that the pamphlet attacks Islam as a false religion and specifically attacks Muhammad as a false prophet. The shop owner refuses to print the pamphlet, saying it is blasphemous.

“Get your pamphlet printed somewhere else!” Rashid says. “It’s against my religion and my conscience to take part in spreading such blasphemy.”

Do you support Rashid’s right to refuse to print that pamphlet? I do. Were our laws to force him to print it, I’d consider it an offense against his dignity and an offense against our American idea of religious liberty.

Would you say Rashid is unjustly discriminating against the man who wrote the pamphlet? Though I strongly believe in freedom of speech, I wouldn’t consider this a case of unjust discrimination. Rashid isn’t saying the man has no right to print his pamphlet, only that he, as a Muslim, refuses to take part in such printing.

Last week a Christian woman in Kentucky went to jail because she refused to take part in licensing same-sex marriages. I’m not personally a fan of Kim Davis’ way of making her stand, but I do believe strongly that our law should allow some route for people such as Ms. Davis to recuse themselves from taking part in gay marriages. That she ended up in jail is an offense against religious liberty.

Though same-sex marriage has great support at present in many Western countries, the fact remains that there are tens of millions of citizens who firmly believe such marriages are an offense against God’s law. One can work to convince these believers they are wrong to think as they do, but one cannot simply discount their convictions, which are clearly grounded in long-standing religious traditions.

In Kim Davis’ mind, her taking part in legitimating same-sex marriages would be a form of blasphemy--hardly different from Rashid’s printing of anti-Muslim pamphlets. You can think Kim Davis is being petty or silly or even bigoted for believing such blasphemy is real, but that is the thing about religious liberty: It’s not up to you to decide what is and isn’t valid in her religion.

If you support Rashid’s right not to print those pamphlets, you should likewise support laws defending the rights of religious bakers, caterers and even county clerks in their refusal to take part in legitimating or providing work toward the celebration of same-sex marriages.

Really, the two cases, that of Rashid and that of the Christian marriage traditionalist, are almost precisely similar. But for some reason, in our current cultural climate, it's become impossible for otherwise intelligent people to see this.

Why is it so difficult for people to see that religious liberty is being offended against when bakers and florists get run out of business or when county clerks are not given a legal route to recuse themselves from taking part in gay marriage?

Too many liberals, weighing in on this issue, show no sense of balance. There's a rising liberal fundamentalism, which, if its proponents had any historical sense, they'd recognize as a contradiction in terms.

Were a customer to come into that hypothetical Muslim print shop asking to print menus or pamphlets on zoology, and were Rashid to proclaim “Get out of here! I don’t serve atheist Jews!”--that would be a case of illegal discrimination. And the customer would be right to take Rashid to court. Likewise were a restaurant owner to refuse to serve a gay customer simply for being gay, we would be talking about real and harmful discrimination. But Rashid, and the Christian bakers too, have the right to refuse to take part in things they consider blasphemy. It's as simple as that.

American liberals are committing egregious mistakes in the way they're trying to integrate same-sex marriage into the culture. What we need are sane and balanced RFRA laws. We need them now.

(Personal note: As a Catholic with great respect for my Church's teachings, but also with an active and critical intelligence, I would not define myself as "opposed to" gay marriage. At the same time, however, I am definitely not a fan of the absolutist tactics of the marriage equality movement, which is now cheerleading one witch hunt after another. I remain engaged in the theological debate over the issue and see routes for changing doctrine, and I'll pursue these routes in dialogue with fellow Catholics. But simultaneously, the sight of so many liberal friends eager to betray fundamental liberal principles is depressing to say the least.

As a strong pluralist, I would insist that America is failing here. There is room for everyone under the tent, and our law should be protecting both sides in this important debate. Because, regardless of the Obergefell decision, the debate is far from over.)

Eric Mader


Duncan said...

Wait a second - these are totally NOT equivalent cases. Your Muslim printer is in private business. Kim Davis works for the state. Given the fundamental, constitutional separation of church and state in the US, her beliefs are irrelevant to her duties as a civil servant. If any given employee of the state is allowed to have private convictions (of whatever stripe) trump the law of the land, then that law becomes meaningless (because the law is nothing without its administration by such individuals).
The case of the printer (or florist, or whatever) is more complicated. Sure it would seem reasonable for one to deny service based on belief, but who determines the legitimacy of the belief. What constitutes dignified belief worthy of such consideration? Do Scientologists count? Etc. And obviously there is a slippery slope here with plain discrimination. Moreover, it is not always the case that the customer can just take his or her business elsewhere (i.e. rural medical clinics; or for that matter florists), so denial of service from me equates to denial of service tout court. Does the state have any business overruling this? I am not sure. But in any case it is not obvious.

Eric Mader said...

A few points, Duncan. First, your manner of evoking "separation of church and state" falls into a now very common misconception, one that is in fact a distortion of American history. In American political theory the doctrine of separation DOES NOT mean that religious beliefs must be kept out of the public arena. Neither does it mean that government servants, of whatever level, must not evoke religious convictions as grounds for their actions or refusal of action. Rather, the concept merely ensures that no one church or religious group can gain control of the state. That was its clear original intention and formulation. The current usage of the concept, to imply that political figures or state servants must "leave their religious ideas at home", is a liberal myth that repeatedly muddies these debates.

That said, the weight of the law is indeed substantial in this case. Substantial, but not necessarily legally decisive. Davis' refusal to administer this law, on grounds of her religious convictions, is not rendered without weight because of the doctrine of "separation of church and state". Rather, given the legal precedents in application of RFRA laws, her case would be subject to certain questions of balance. First, is her belief sincere and is it in fact a religious belief? These questions are crucial. Second, could an exemption be offered to her without substantially burdening the ability of the state to continue to offer marriage licenses to same-sex couples?

I've studied this case in depth, and I think the obvious answer to all these latter questions is Yes. Her belief is 1) sincere, 2) religious, and 3) an exemption could be offered by allowing her personally to recuse herself from issuing such licenses and by changing the licenses so that her name would not have to appear on them. Though I disagree with Davis' way of pursuing her rights (her giving a blanket instruction to all in her office not to issue licenses) in fact she does have rights, under American law, and she can be accommodated.

As for the question in your second paragraph, namely what constitutes a belief "worthy of consideration", American courts have handled this precise problem in numerous cases. And they CAN handle this problem. It is part of the concern for balance which is written into actually existing RFRA laws. In certain RFRA cases, the petitioner seeking exemption has lost; in others, the petitioner has won.

I think it is very clear, given the cases against florists, bakers, photographers and now a county clerk, that states need vigorous RFRA laws specifically aimed at allowing religious people to recuse themselves from participating in marriages they consider blasphemy. Unfortunately, every time a state tries to pass such laws, the LGBT lobby comes out screaming "Homophobia! Homophobia!" On this point, I'm am strongly against the LGBT lobby. This is not homophobia, but well-established definitions of marriage in different religious traditions that, too bad for them, the LGBT lobby has to give space to.

That our Supreme Court decided unilaterally to change the definition of marriage in this radical way was a mistake. Had the question been left to state legislatures to sort out, "marriage equality" could have been established step by step, along with reasonable protections for those whose religious beliefs do not allow recognition of such marriages. Instead, we have witch hunts, and too many of our citizens, unclear on the legal issues, seem to think "the law of the land" justifies these witch hunts.

It is un-American.

duncan said...

I appreciate your clarification. You are better informed here than I am. However I would take exception to two things, or at least ask for further clarification.
First, you act as if there were no difference between private enterprise and government service as involves..well…discrimination based on "sincere" belief, but I cannot believe there is legal support of this - there certainly shouldn't be. You should not take a job that is likely to lead you into these situations. In this case, Davis should be dismissed: her beliefs preclude her from doing her job. Of course when she got that job the law of the land was different, but in principle it's like orthodox jews or whatever being denied jobs that involve work on the sabbath. They just can't do the job. So, sincere belief works both ways it seems. Add to that the fact that others with the same sincere beliefs act different in good conscience and you complicate the notion of sincere belief - I need to look into how the courts could judge sincerity (readers of Rousseau know that there is no ultimate determining of sincerity…).
Second, I know you will disagree strongly, but you say: "this is not homophobia", it's sincere belief, but why are these two mutually exclusive. I would have thought it was precisely homophobia, but religion/belief-sanctioned homophobia. If not, what exactly is it? Sure, a worthy believer will have…sympathy, concern, desire to help rather than hate - if that is what we mean by homophobia - but it amounts to the same thing: you are a freak, wrong, perverted, lost, etc. and are not worthy of equal treatment…
Please set me straight….

Eric Mader said...

Sorry for taking so long to reply, Duncan.

As to your first point, that religious liberty protections wouldn't count in the case of a government employee, again, there is nothing in the Constitution or legal history that says government employees don't have religious liberty while doing their jobs. I believe you are still thinking in terms of "separation of church and state" in the way I addressed in my first reply to you. Sincere religious beliefs, under our law, can ALSO exempt government employees from having to perform certain tasks if the other criteria are met (i.e., for one, if the exemption does not substantially hamper the state from doing its job).

As to sincerity being unprovable, indeed, but courts are often tasked with deciding just these kinds of things. Cases are taken up individually and judged on merit.

As to your claim that a refusal to recognize gay marriages is in this case simply religiously-licensed homophobia, I beg to differ. To say that marriage is inherently between male and female is not a controversial statement in any way. Rather, it is a belief that accords with the practices of 99%-plus of world cultures past and present studied on all continents.

Very many religious people who strongly oppose gay marriage do not feel that gay people are "freaks" or "lost" or "perverted". That's the interesting thing about many of these cases. The baker or florist being sued out of business and forced to take "diversity training classes" had previously had no problem working for or with gays or lesbians. They simply, based on their religious beliefs, refuse to recognize that homosexual relationships can constitute marriages.

Many of these supposed "bigots" had a personal history of friendships with LGBT people, only to find themselves in recent years persecuted and reviled for their "bigotry" because they refuse to acknowledge the meaning of marriage can be arbitrarily changed by courts.