In the wake of the Indiana Restoration of Religious Freedom Act and the accompanying dust up I want to discuss this Mexican standoff between religious freedom, legality and homosexuality. I’ve been wanting to address this issue for some time, but honestly I’ve been struggling with my own opinions on the subject. I am not, by any means, a religious person. I don’t go to church, I don’t subscribe to any particular religious dogma. You could, for all intents and purposes, classify me as agnostic. I am, however, a die-hard Constitutionalist, and as such I am required to be a firm believer in religious rights for all Americans. On the other hand I do not oppose gay rights in any fashion, and in accordance with my Constitutional beliefs, I feel everyone has the right to live as they wish within the confines of the law and the Constitution.
This is a complex and sensitive subject for most people. I want to discuss what I believe to be some of the most debated elements of this controversy. To do this I would like to pose four questions to you, the reader. If you like feel free to answer these questions, respectfully, in the comment section below.
First: Many people have been debating whether or not businesses should be able to refuse service to customers based on religious grounds, i.e. disagreeing with homosexuality. Constitutionally speaking your rights as an America stop where mine begin, in other words you have the right to act, think, feel, say as you wish so long as you don’t infringe on my rights to do the same. So the question is:
Is refusing service to a gay person on religious grounds a violation of that gay person’s civil rights? I don’t know that I have a clear answer to this, and I’m not sure there is one.
Engaging in commerce is an act of free will, you are not required by law to own a business nor are you required to buy products or services (aside from Obamacare, different topic). Engaging in commerce is also an act of free expression. If I choose to own and operate a business and provide products or services I am doing so of my own accord and likewise I have the freedom to conduct my business as I see fit within the confines of the law. In turn the consumer has the right to shop elsewhere if they don’t like my practices. If a person walks into your business wearing a shirt with a message you find offensive, should you not have the right to remove that which offends your sensibilities? This could easily be argued as an infringement on the 1st Amendment rights of the patron but what about the rights of the business owner? Since commerce in this instance is completely voluntary, neither party is under any obligation to either provide services or purchase services. Nothing in the Constitution entitles citizens to the right to purchase goods and services. Understand that my answer here is based in the Constitution and not out of a desire to discriminate.
Second: I have heard several people equate this current situation to the battle over civil rights for racial minorities. People claim that this is just a modern form of Jim Crow aimed at gays. So my second question is:
Do you think this situation is equivalent to the fight for civil rights 50 years ago?
My answer here is no for a few reasons. First, 23% of the entire population are minorities versus only 3.5% of the adult population that are gay. Jim Crow racism affected a far larger portion of the population over a vast swath of the American geography. Racism was not only widely prevalent but also institutionalized. Compared with far fewer instances of gay victimization we experience today they are not even close. Second, minorities do not choose to be minorities; they are born into their respective racial/ethnic groups. Now being a man with a degree in psychology I know full well that many gay people are indeed born gay, but I also know that many gay people choose to be gay. That creates a serious distinction between gays and other minority groups. From a legal standpoint it would be impossible to determine between those born gay and those that choose to be gay.
Third: We’ve all seen the news stories concerning court orders striking down bans on gay marriage, many of which were put in place through public referendum. This issue will inevitably go to the Supreme Court, and they will have to decide not just on the right of gay people to be married but on the power of the courts to overturn the will of the public. So my next question is:
Do you think the courts should have the power to overturn the public will?
This is a very tricky question to which I honestly do not have an answer. On one hand the Constitution clearly outlines the judicial powers and jurisdiction of the federal court system and does not give it the power to rule on or overturn laws enacted at the state level lest they conflict with established federal law. The Constitution has no language relating to marriage nor to the ability of the federal government to regulate marriage. In fact there is Supreme Court precedent that specifies this matter is not subject to federal review. The case of Baker v. Nelson 1971 involved two gay men attempting to marry. The case went to the US Supreme Court and was rejected on the merits “for want of a substantial federal question” meaning there was no case for federal involvement. Due to the nature of the case and because it was rejected on the merits it thereby established legal precedent; this precedent was upheld as recently as last year. On the other hand should the public be allowed to enact laws that do, in fact, discriminate against a sect of our population?
Fourth and final: It’s no secret that America was founded by predominately Christian people on predominantly Christian values. For a long time the willingness of the government and the courts to rule based on religious principles was a non-issue because those principles agreed with the vast majority of the population. But as time passes societies evolve, beliefs change, cultural norms and traditions are discarded and replaced. Though America is still predominately Christian we are no longer comfortable basing our laws strictly on religious principles. Increasingly Americans are placing less and less value on religion as a foundation of our society. As we pursue this social evolution further and further religious freedoms and beliefs continue to come under fire. We will inevitably be pushed to a point where we must decide between continuing this evolution and maintaining religious freedom. Religious freedom is one of the core elements of our Constitution and the basis for the formation of our country. My question to you is:
Should religious freedom be sacrificed to accommodate social evolution?
I will leave this for you to decide.