Diary

When Gay Rights Meet Religious Rights

Nowhere in America today is there greater controversy than in the intersection of gay rights and religious rights.  One liberal website states:

Twenty-eight. That’s the number of states where it’s not against the law to discriminate against a gay person who’s looking for an apartment, applying for a job, or buying something from a store. {Emphasis mine}

While it is true that 28 states do not have laws specifically protecting gays from housing or job discrimination, there is absolutely no law in any state that denies a gay person the right to purchase anything of any nature in any store.  This is the hyperbole that must be confronted.

The problem, as this writer sees it, is on the gay rights activists side.  For example, a spokeswoman for Freedom for All Americans notes a $3-6 million campaign to secure gay rights legislation in a handful of states.  It does not stop with housing or jobs.  She states:

When a person or an institution is engaged in commercial activity, engaging with the general public, then they should treat all members of the general public equally.

In other words, the owner of a bakery, or a florist, or a photographer, or a pizzeria MUST serve a gay couple under all circumstances.  In most of these high profile cases involving these very entities, the owners in no way discriminated by hanging a sign in the window stating, “NO GAYS ALLOWED.”  In most cases, these businesses were sought out by gay activists to be used as examples.  Crafty civil liberties lawyers financially gained from the “discrimination.”

Of course, most of this controversy stems from the Supreme Court’s gay marriage ruling in 2015.  It should be first be noted that although the decision was long on poetry and short on constitutional law, the ruling did not force acceptance of gay marriage on anyone individually.  Everyone is still free to accept or reject gay marriage as a matter of conscience or religious dictate.  However, the gay rights community is patently false in asserting that by people exercising their religious rights, they are forcing their beliefs on others.  Being gay is not a religion.  A baker refusing to bake a cake for a gay wedding is not forcing their religious beliefs on anyone; they are exercising their own religious beliefs.

And unless I missed something in civics class (or college constitutional law) the free exercise of religion is protected by the First Amendment.  What I believe has most of the Left confused is the belief that an “exercise of religion” stops at the doors of the church after Sunday mass.  One article asserts that religious freedom arguments are an attempt to establish one’s religious beliefs on another.  How refusing to make a cake, take a picture, or provide some flowers is an “establishment of religion” is beyond logic.

Gay rights activists won a landmark decision in the Supreme Court.  How quickly they have sullied that victory.  Are we to honestly believe that the “next great civil rights battle of the 21st century” revolves around whether one in 20 bakers refuses to make a cake for someone?  If that is what gay couples are truly worried about, they have bigger problems than they realize.  The fact is that most DON’T worry about such nonsense, but DO worry about losing a job or being refused an apartment because they are gay.

The gay lobby obscures facts.  It is one thing for a restaurant to refuse service to a gay couple (it is also economically stupid) and quite another for a photographer to be forced to attend and photograph a gay wedding.  In the first case, they are denying service because of sexual orientation.  In the second, they are being asked to violate their very deeply held religious beliefs.  Ah…but the slippery slope of the Left.  What’s to stop them from the first instance of denying service?  That argument would make sense if they can cite one substantiated instance of a business denying gays service as a matter of policy.

The questions come down to: do businesses have a right to discriminate based on a person’s sexual orientation, or does government have a right to force business owners to serve homosexuals?  A denial of service is not violating anyone’s rights.  Individuals and businesses have an even more fundamental right- that of free association.  A “right” to a wedding cake, or a wedding bouquet, or a picture further fundamentally violates the baker’s, the florist’s and the photographer’s right to property.

The proper role of government, therefore, is to protect both these property rights and the rights of people to associate with whoever they please, even if they behave immorally or not in their own self-interests economically.  But, that baker, photographer or florist should be well-warned in advance that they may suffer economic harm through boycotts, protest, and shame.

There are two ways government can infringe on liberty, including religious liberty.  The first way is through forbiddance and the second is through force.  But not all “force” or all “forbiddance” is unacceptable.  In fact, it is quite acceptable when a “harm” is created.  Where is the harm created when a gay couple has 20 bakers or 20 florists or 20 photographers to choose from?

Perhaps a happy medium is to apply an undue burden standard on this context, but this could get tricky also.  Would the denial of service place an undue burden on the gay couple if they have 19 other bakers to choose from?  What if the baker is the only one in town and the next nearest is 40 miles away?  One gets the drift.

When Massachusetts approved gay marriage and an LGBT protection law without religious exemptions, the Catholic Church in that state closed its highly successful adoption services after being in operation for over 100 years.  That is but one example of the unintended consequences of tipping the scales too far towards the gay rights side.  The losers were adoptive parents.

Since Colonial times, we have provided and enacted religious exemptions in a wide variety of areas.  We have excused Quakers from combat and provided tax exemptions for religious property.  We allow Communion and Seder wine for minors.  And the list goes on.  Instead now we have the gay rights activists, recently armed with a Supreme Court decision, coming in and saying they want all the marbles.

Both sides must be free from governmental force, especially when discussing original rights like freedom to associate with (or not) whoever one sees fit and religious exercise.  Both are explicitly protected in the First Amendment.  The “right” to a wedding cake, especially when viable options exist, is nowhere to be found in that document.  As such, religious liberty trumps gay rights in these manufactured-for-show controversies.