Thursday, February 27, 2014

Exercising Religion – and Picking Battles

I confess – again – that I’m having a hard time understanding something.

I was relieved when the Idaho legislature shelved two bills meant to come to the defense of business owners facing discrimination lawsuits because they refused to assist gay people. Though the idea sounds noble, I have had a hard time reconciling the difference between such a law and laws that allowed businesses to segregate or discriminate on basis of skin color, or on early Idaho Territory and State laws that forbade Mormons from serving in elective office, on juries, or even voting.

I’ve always believed that businesses could pick and choose whom to serve without ever giving the customers a reason for getting the heave-ho. Those “No Shirt, No Shoes, No Service” signs had to mean something – as did the “No Irish Here” signs as well. There are ways to pick and choose customers without offering the appearance of being an ass while doing so.

I’ve heard the talks – both by Elder Dallin H. Oaks, and I believe he makes salient points.  His 2009 speech, “Religion in the Public Sphere” remains particularly powerful in my mind. In it, he says:

The First Amendment reads: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The prohibition against “an establishment of religion” was intended to separate churches and government, to prevent a national church of the kind still found in Europe. In the interest of time I will say no more about the establishment of religion, but only concentrate on the direction that the United States shall have no law “prohibiting the free exercise” of religion.

The guarantee of the free exercise of religion, which I will call religious freedom, is the first expression in the First Amendment to the United States Constitution. As noted by many, this “pre-eminent place” identifies freedom of religion as “a cornerstone of American democracy.”[iv] The American colonies were originally settled by people who, for the most part, had come to this continent to be able to practice their religious faith without persecution, and their successors deliberately placed religious freedom first in the nation’s Bill of Rights. So it is that our national law formally declares: “The right to freedom of religion undergirds the very origin and existence of the United States.”

The free “exercise” of religion obviously involves both the right to choose religious beliefs and affiliations and the right to “exercise” or practice those beliefs. But in a nation with citizens of many different religious beliefs, the right of some to act upon their religious principles must be qualified by the government’s responsibility to protect the health and safety of all. Otherwise, for example, the government could not protect its citizens’ person or property from neighbors whose intentions include taking human life or stealing in circumstances rationalized on the basis of their religious beliefs.

The inherent conflict between the precious religious freedom of the people and the legitimate regulatory responsibilities of the government is the central issue of religious freedom. Here are just a few examples of current controversial public issues that involve this conflict: laws governing marriage and adoption; laws regulating the activities of church-related organizations like BYU-Idaho in furtherance of their religious missions — activities such as who they will serve or employ; and laws prohibiting discrimination in employment or work conditions against persons with unpopular religious beliefs or practices.

I’m grateful for his scholarly interpretation of the First Amendment.

What I hear missing in this current debate, particularly over laws banning gay marriage or offering defenses to businesses who do not want to serve the gay community, however, is a discussion of something equally salient: The Fourteenth Amendment. That amendment reads:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

So, what are privileges and immunities? And do laws like those considered in Idaho and those vetoed in Arizona fly in the face of the “equal protection” of the law? Should a state be able to force business owners to serve customers they would rather not serve? The state has done so in the past, eliminating Jim Crow laws – to an end that had a clear moral benefit.

We have to be careful here, because Mormonism has a history of using the color of one’s skin for discriminatory practices that, ultimately, held no reality in either temporal or spiritual law, other than to say the practice stemmed from practices at the time that were later shown to be discriminatory and morally incorrect.

I’m having trouble reconciling these viewpoints.

Here is what I do understand:

The LDS Church regards gay marriage as a moral issue.

Interpretations of the Constitution appear to offer conflicting advice in balancing freedom of the exercise of religion and equal protection under the law.

You would think a business could turn to state constitutions that guarantee equal protection under the law as defense against lawsuits for refusing service to anyone they choose not to serve, if those who are not served get it up their nose to pursue legal action, rather than find another business willing to help them – a core tenet of the free enterprise system.

A look at the Idaho Constitution already reveals this:

The exercise and enjoyment of religious faith and worship shall forever be guaranteed; and no person shall be denied any civil or political right, privilege, or capacity on account of his religious opinions.

Seems there are civil protections already there.

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