A while back, Mollie Ziegler Hemingway had an op-ed in the WSJ on the clash between anti-discrimination laws and free exercise rights:
Robert Ingersoll and his partner, Curt Freed, were longtime customers of Barronelle Stutzman, a florist in Richland, Wash. After voters in the state approved same-sex marriage in December 2012, Messrs. Ingersoll and Freed decided to tie the knot, and called their florist. "There was never a question she'd be the one to do our flowers," Mr. Ingersoll told the Tri-City Herald. But Ms. Stutzman declined, citing her Christian beliefs about marriage.
"You have to make a stand somewhere in your life on what you believe and what you don't believe," Ms. Stutzman told Christian Broadcasting Network. For acting on her religious beliefs, Ms. Stutzman has been sued twice: once by state Attorney General Bob Ferguson and once by the American Civil Liberties Union.
It wasn't supposed to be this way. Voters were assured that legalizing gay marriage wouldn't undermine religious freedom—after all, the public was assured that religious institutions would be free to act as they always had. But what about religious individuals? The effects of this new legal regime on private citizens have largely been ignored.
When the Supreme Court struck down the Defense of Marriage Act in June, President Obama said: "How religious institutions define and consecrate marriage has always been up to those institutions. Nothing about this decision—which applies only to civil marriages—changes that."
That line was echoed by the media, with a typical comment coming from the Los Angeles Times editorial page: "Government entities in California must now recognize and extend equal rights to same-sex marriages, but that requirement does not extend to religions, their houses of worship or their ministers." ...
What's at stake is personal religious liberty. "Individuals really haven't gotten much protection at all," says Robin Fretwell Wilson, a professor of the University of Illinois College of Law who lobbies legislatures to protect individual religious liberty when revising marriage laws.
It's not just religious-minded business owners who need to worry. County recorders, magistrates and judges in Iowa as well as justices of the peace in Massachusetts and town clerks in New York have been told that refusing to perform services for same-sex couples will result in criminal prosecutions for misdemeanors or other sanctions. Faced with choosing between their jobs and their religious beliefs, many have resigned, including a dozen Massachusetts justices of the peace.
The threat is clear, but one must also acknowledge that Walter Olson has an equally valid comment in the letter section of today's WSJ on the real source of the problem:
Mollie Ziegler Hemingway conflates the effects of antidiscrimination law with the effects of recognizing same-sex marriage. Many of the conscience cases she cites involving private businesses arose in jurisdictions that don't recognize gay marriage, and most would reach the same legal result so long as local antidiscrimination laws remain in place, whether or not the law on marriage has changed. Libertarians have consistently worried about the tendency of anti-discrimination laws to erode individual rights of association. Modern progressives have consistently sought to dismiss or minimize such worries. Many conservatives from outside the libertarian tradition, such as Ms. Hemingway, do not seem to have given much attention to the issue until it gored their particular ox.
The basics of antidiscrimination law as applied to so-called public accommodations have been on the table continuously. These laws oblige some devout innkeepers, print-shop owners and caterers to offer service to persons whose celebrations or domestic arrangements their religious conscience cannot sanction. Because religion counts as a protected class virtually everywhere, the law obliges these small-business persons to assist in the celebration of religious rites they may consider idolatrous, wicked and a danger to the souls of the celebrants. Depending on the exact listing of additional protected groups in a given state or town, they may also be called on to serve unwed cohabitants, those entering remarriage after divorce and gay couples.
I hope more social conservatives will come to embrace a more consistent libertarian stance of skepticism toward antidiscrimination laws, including those that make religious affiliation or practice itself a protected class.
I very much take his point, but I would argue that the Constitution already defines certain things as being within a protected class and one of them is religious freedom. As another letter to the editor in today's WSJ pointed out:
Ms. Hemmingway quotes Chai Feldblum, an EEOC member as saying: "There can be a conflict between religious liberty and sexual liberty, but in almost all cases the sexual liberty should win because that's the only way that the dignity of gay people can be affirmed in any realistic manner."
Pardon me, but where in the Constitution does it speak of "sexual liberty"? Secondly, and given that it only talks of religious liberty, why isn't the obvious argument: In almost all cases religious liberty should win because that's the only way the religious beliefs of religious people can, in fact, not be impaired by government coercion?
The right to the "free exercise" of religion (not to mention freedom of speech) are clear statements. Only in the Orwellian world of political correctness can this right to "sexual liberty" trump rights of religion and speech. This is a travesty of the Constitution.
Increasingly it seems like it is the other way around, however, as a third letter noted:
I worry not only about the government's intrusion into the lives of Americans when they refuse to acknowledge same-sex marriage in their private businesses but also intrusions extending into our beliefs themselves. In other words, if I disagree with same-sex marriage and speak out against it, might I not be guilty in the future of a "hate crime"? It does not take a great deal of imagination to see where this is going.
Apropos of which, I leave you with this news item:
Guido Barilla, chairman of the world's leading pasta manufacturer, prompted calls for a consumer boycott on Thursday after telling Italian radio his company would never use a gay family in itsadvertising.
"I would never do (a commercial) with a homosexual family, not for lack of respect but because we don't agree with them. Ours is a classic family where the woman plays a fundamental role," Barilla, 55, said in an interview with Radio 24 on Wednesday. ...
Aurelio Mancuso, head of gay rights group Equality Italia, said Barilla's comments were an "offensive provocation" and called for a boycott of the company's pasta, sauces and snacks.
Honest disagreement apparently will not be tolerated.