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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