By Mike Appleton, Weekend Contributor
“This bill is not about allowing discrimination. This bill is about preventing discrimination against people who are clearly living out their faith.”
-Arizona State Sen. Steve Yarbrough (R), on SB 1062.
Assaults on the civil rights of homosexuals and the acceptance of gay marriage have been the focus of a number of state legislatures. The most recent lunacy is a bill in Arizona that now awaits action by Gov. Brewer. The bill amends sections of the Arizona Revised Statutes by incorporating provisions that effectively insulate many forms of grossly discriminatory conduct from legal consequence if done under the cloak of religion. This is accomplished in three steps. First, the bill defines “exercise of religion” to include “the ability to act or refusal to act in a manner substantially motivated by a religious belief, whether or not the exercise is compulsory or central to a larger system of religious belief.” Second, the bill expands the definition of “person” to include “any individual, association, partnership, corporation, church, religious assembly or institution, estate, trust, foundation or other legal entity.” I refer to this as the “Hobby Lobby” amendment. Finally, the bill prohibits, with a strict scrutiny exception, any “state action” that substantially burdens the free exercise of religion even if that state action is a law of general application.
I anticipate that the governor will veto this atrocity, not as a matter of constitutional principle, but out of concern that enactment of the law would further harm Arizona’s reputation and economic interests. But it is nonetheless disturbing that legislators would willingly employ a fundamental freedom as a weapon against a disfavored group of citizens.The legislation has been pushed by the usual suspects. Peter Sprigg, Senior Fellow for Policy Studies at the Family Research Council, has written a piece entitled “The Top Ten Harms of Same-Sex Marriage,” in which he claims, inter alia, that recognition of marital rights for gays threatens the religious liberty of “individual believers trying to live their lives in accordance with their faith not only at church, but at home, in their neighborhoods, and in the workplace.” That, of course, is merely another way of saying that Mr. Sprigg’s religious beliefs must prevail over yours in the event of a conflict, even to the point of requiring that you live somewhere other than where you may wish to live and work somewhere other than where you may wish to work. Mr. Sprigg, who was formerly the pastor of the Clifton Park Center Baptist Church in Clifton Park, New York, believes that tolerance is a synonym for endorsement.
Or consider the words of the Rev. H.M. Goodwin, who lamented the damage to “the unity of the family as a social organism,” striking “at the root of that which should be the first and foremost end of government to protect, the sacred unity of the Family.” Or perhaps don’t consider the words of Rev. Goodwin, because he wrote them in 1884 and the object of his outrage was actually the growing movement in support of women’s suffrage. In that same article, Rev. Goodwin complained of increasing secularism, an example of which was the removal of the Bible from public school classrooms at the instance of “Catholics and infidels.”
The history of this country is littered with appeals to God in defense of oppression. In 1822, Richard Furman, a church pastor in Charleston, South Carolina, wrote a letter to Gov. John Lyde Wilson claiming that slavery “is justifiable by the doctrine and example contained in Holy writ; and is, therefore, consistent with Christian uprightness, both in sentiment and conduct.” That argument became discredited through time and the Civil War, of course, but its legacy was a system of laws that persisted for decades until intervention by the courts, an intervention that the late religious leader W.A. Criswell decried as “a denial of all that we believe in” fomented by proponents of racial integration which he labeled “a bunch of infidels, dying from the neck up.”
The point is that every advance in the rights of man has had to overcome preachers of hatred and theologians of exclusion. Every attempt to admit to the fullness of civic, political and social life a group previously rejected out of ignorance and fear has been resisted by those asserting sole possession of divine truth. And years later, after the battles have been won and the opponents are long since dead, their words are finally recognized for what they are, the intolerant rants of false prophets.
In April of 1965, Lester Maddox stood at the entrance to his Pickrick Restaurant in Atlanta, axe handle in hand, to block three black Georgia Tech students from entering. Mr. Maddox closed his restaurant later that summer rather than comply with court-ordered desegregation, but carried his views all the way to the Georgia governor’s mansion several years later.
In retrospect, Mr. Maddox made a tactical error. Instead of the same old tired arguments about property rights and federalism, he should have cited the Free Exercise Clause. He should have argued that his sincerely held religious beliefs prohibited his serving a ham sandwich to the children of Ham. Or perhaps he should have moved his restaurant to Arizona, where politicians have determined that religious balkanization is a healthy trend and that religious extremism in the defense of bigotry is no vice.
Sources: Goodwin, H.M., “Women’s Suffrage,” The New Englander,” No. CLXXIX (March, 1884); Freeman, Curtis, ” ‘ Never Had I Been So Blind’: W.A. Criswell’s ‘Change’ on Racial Segregation,” Journal of Southern Religion, Vol. X (2007); Sprigg, Peter, “The Top Ten Harms of Same-Sex Marriage,” Family Research Council (2011).
I will defer my arguments to everything MIke, Larry and Annieofwi wrote. They pretty much summed it up for me.
davidm:
The minister is performing a religious function. Each denomination establishes its own requirements and conditions for participating in the sacred character of the marriage rite prescribed by that denomination. That is why all of the hand-wringing about members of the clergy being compelled to perform weddings is nonsense. The state may no more enact such a requirement than it could determine the liturgical order of the Mass.
Baking a cake or selling flowers are secular services. The fact that the cake is a wedding cake or that the flowers will be displayed on an altar does not convert the service into the exercise of religion.
As you probably know, notaries public are authorized to officiate at weddings in Florida. I have married a number of couples over the years in that capacity. However, my function in that regard is not religious. The state has no concern other than in my certification that the couple has exchanged the promises constituting the marriage contract so that it can be recorded in the public records in Tallahassee. My service is that of a witness to a contract. I confer no sacramental character nor religious blessing on the event. Therefore, if I hold myself out to the public as a notary public available for weddings, my only concern is that those seeking my services have properly issued licenses and I am not free to reject a request for those services because the couple is interracial or atheist or believe in baptism by complete immersion.
What fundamentalists are attempting to do in Arizona, Kansas and other states is to confer a religious character on activities which have always been recognized as secular in order to hide their personal attitudes about the beliefs of others behind a religious veil. That the current culprit is homosexuality is fortuitous. Rest assured that it will be something different tomorrow or the next day.
Mike, you are excusing the minister from the law of service because he is religious. That is not equal application of the law. If a notary in his congregation would be forced by government to marry the couple, why would the minister not be forced?
Do you really not see how this is an unequal application of the law?
The Arizona law simply provides this same exception you allow for the minister to everybody who is religious, whether they are ordained ministers or not. Some religions teach their people that everything they do should be for the glory of God. Why is it that only the minister is allowed by law to do what glorifies God, but the rest of his congregation are forced by law to do that which is contrary to their conscience?
Huh???
Chuckle.
What if the pharmacist stocks the pill for his veterinarian clients? Now it is suddenly okay to hold a gun to his head?
Mike writes, “The law recognizes a distinction between commercial and personal interaction.”
Mike, do you understand what inalienable means? Unless one agrees to waive an inalienable right or contract it away, the government has no authority to alienate you from the right just because you choose to engage in private commercial pursuits.
If however you are partners with government, either by recieving subsidy, or by asking for limited liability corporate benefits (incorporation), then your acceptance of the benefits serves as the nexus to require you to be subject to regulations that otherwise in your personal inalienated state you would not be subject.
This is contract law at its basic core. Many federal laws do not apply to certain Americans. Jurisdiction attaches as the result of satisfying a number of conditions..
Samantha the owner doesn’t have to stock the pills
I don’t think that the owner of any pharmacy is required by law to carry any product or drug he chooses not to. I’m sure some of the lawyers here could give us a definative answer.
What if the pharmacist is not a hireling but, instead, owns the pharmacy? The hireling has a choice, the owner does not?
Randy Lee:
The argument you continue to make has been rejected through decades of constitutional jurisprudence. You can continue to make it, of course, but it has no rational leverage because it is anarchic at its core. The law recognizes a distinction between commercial and personal interaction.
davidm:
You are insisting that the sale of goods and services to an individual represents, to a religious person, approval of the customer’s moral beliefs. Do you not see the absurdity in that position? Under the Arizona statute, a religious owner of a donut shop could refuse to sell a donut to someone known to him to be promiscuous, and justify the refusal as an exercise of religious freedom. In your view, the donut shop exercises religion in that instance. That is essentially the argument of Hobby Lobby. If we accept the logic of that position, that the provision of secular goods and services does not preclude the contention that the business is engaged in the exercise of religion, it follows that all tax funding of all faith-based programs is constitutionally prohibited because it constitutes a de facto “endorsement” of specific religious entities. In other words, you may not make a distinction between secular and religious functions for public funding purposes and simultaneously argue that no such distinction exists in the operation of private businesses.
Mike Appleton wrote: “You are insisting that the sale of goods and services to an individual represents, to a religious person, approval of the customer’s moral beliefs.”
I find it very difficult to believe that somebody refuses to sell someone a donut because of their religious beliefs. The law already forbids this very clearly. You cannot discriminate against someone based upon their religion. Strict scrutiny would strike down any attempt to behave this way.
What we are talking about are conscientious issues. It is more analogous to the kind of moral conflict a person has when forced to go to war and kill a person when deep down he believes that is wrong. Some people believe they are being made unwilling participants if they lend their artistic expression to something considered immoral.
No Randy Lee, more like Bigotry baby Bigotry!
If the pharmacist doesn’t want to fill a prescription and it’s the policy of the pharmacy to sell it, the pharmacist is subject to discipline or dismissal. He could go work at a different pharmacy, one that doesn’t stock it.
Annie asks, “how would Christians feel about being denied service because Muslims consider them to be an infidel and morally repugnant.”
I could care less how they feel. I would support the right of a Muslim to refuse service to a Christian, or a homosexual, or a woman, or whomever they so chose. Liberty, baby, Liberty!
I can’t support the right of either the state or the so-called majority to discriminate against Christians, Muslims, gays, or whomever by forcing them to interact with anyone not of their own free choosing.
There are pharmacists who are morally against filling a prescription for the day-after pill. But you want to compel them anyway? The key word here is morally, not abortion or gay or anything else.
As for continual economic threats, in this case against Arizona, again, we saw how Russian threats worked out in Ukraine. I understand if one’s lord is money.
nick,
I think you missed the point of that article. It would appear that the lobbyist is the whore. His own public relations firm broke the story.
Yeah, isn’t Arizona also the state with the rectal probing highway patrolmen, or was that New Mexico?
annie,
I guess I have to remember to stay out of Arizona.
Well Rafflaw, it’s only fair because the Church of the Flying Spaghetti Monster thinks Hungarians are unclean and vows to deny them service.
annie,
what if my religion claims that African Americans are evil and must not eat with whites? JIm Crow, Arizona style.
I know some Iraqi Christians here in San Diego. They love this country. People come to the US from all over the world because of horrible persecution. This is where oppressed people want to come. Funny how so many oppressed people from around the world LOVE the US compared to hand wringing self loathing people born here w/ all our freedoms. We are certainly not perfect, but where the f@ck else would you want to live? I’m sure there are millions of oppressed people who would trade w/ you.