Religious Rights vs LGBT Rights - Can they coexist?

There is a lot if discussion over religious rights in the US. Specifically in relation to same sex relationship rights and they seem to be incompatible, or that we have to balance them. My contention is that if we are to truly have rights as envisioned by the Constitutional Framers, then there should be no conflict and no overlap. Now I’m not a lawyer, nor do I pretend to be one on TV, so I can offer no legal advice, but I can talk about ethics and the application as I see them.
The underlying core of the US Constitution, and the driving idea was the idea that every man had a right to his own life, liberty and the pursuit of happiness. By virtue of our birth, not as citizens of the US, but as human beings given by their Creator. These aren’t given to us by our government, but our government has the responsibility to protect those.

Liberty requires freedom of thought. The Framers knew as well as anyone, the dangers of enforced belief. They had direct knowledge of abusive legalized thought institutions, such as the inquisition. After all, the inquisition was still going on (the last execution is Spain wasn’t until 1926). They understood the danger of having a religious government, hence the rule that the government make no law respecting the establishment of religion.

Yet, they also knew full well the need of men to live by their conscience. While they proscribed a government religion, they understood full well that a man cannot have liberty without the ability to live by his own conscience. This is where we get the free exercise of religion clause. And just as a reminder, it is worded: Congress shall make no law ... prohibiting the free exercise thereof [religion, that is]. In essence, it codified the concept that a man is subject to his God before his King (or state).
Now as a history refresher, there was substantial controversy over the introduction of the Bill of Rights. Some felt that without enumerating the most important rights, government would encroach. Others felt that enumerating them would limit protection to just those enumerated rights. The Massachusetts Compromise set the Bill of Rights as the first 10 Amendments to the Constitution and paved the way for ratification.

We have had some challenges to that concept. For example, slavery was in direct opposition to this concept and as a nation, we had to overcome that. Yet, even though we fought a war to gain emancipation, it has taken years to get to some semblance of functional equality (I recognize some would vehemently disagree with me that we’ve gotten to that point), but we did have some legal hurdles to overcome. The Civil Rights Acts were born out of the process. We started to legally codify some specific groups that had been the target of very heavy discrimination.

The civil rights laws took the stance that an individual’s liberty was subject to limitations under certain conditions. Specifically, a person could be compelled to give up his right to not transact business with someone based on the codified classes. In a free market society, normally the market would take care of this. Ideally, the community would find it reprehensible for a person to refuse to do business with a person based on these classes and would retaliate by not shopping there. But culturally, the US was probably not in a position to do so. So, even with my Libertarian leanings, I can see some justification for the laws. They essentially jumpstarted the integration. Purely enforcing these “rights” (they are not really rights, as no one has a right to receive service from another - they are accommodations) could lead to some problems, for example. A religious organization could be said to be a public accommodation, but they night have trouble because they only allow men to be serve. So religious exemptions are included to allow for that.

The problem with creating law to deal with what should be market issues. You have to create conditions for those things you didn’t foresee, then add more conditions for the additional items, and so on, etc. And worse, people become attached to those laws as if they were somehow the only solution. And the details become so common they get muddy. And the words get used so ambiguously that they have little meaning anymore.

For example, after 50 years with civil rights law, the average person really believes they have a “right” to compel others to do things for them. They forget the civil rights laws do not actually create rights, but are a limitation of someone’s rights in order to provide enhanced benefits to a specific group. For example, a store can have a sign that says “We reserve the right to refuse service to anyone,” but in reality, civil rights laws abrogate that. As I mentioned, we allow that for the public good. The problem is that a lot of damage is often done in the name of the public good. So far, the people and the courts have held that in check. Until recently, no one that I’ve heard of has seriously tried to use the law to force someone to specifically act in violation of their religion. For example, I’ve never heard of the law being used to compel a Jewish caterer to cater a KKK rally because on their religious beliefs. I don’t believe any reasonable man would. But there is no reason why the Jewish butcher shouldn’t sell the KKK member food that might be used in the rally. The difference is the act itself. In the first example, the catering requires the involvement of the Jewish member – it requires his participation in an event that violates his conscience, whereas the second example, selling the food, has no belief component at all. The act of selling itself is not inherently religious, so would not require the Jewish member to participate. Once the food is purchased, the purchaser chooses what he will do with it, and the seller has no part. It could be that the Jewish butcher knows the person is going to use it for KKK, but declines to sell it based on his religious beliefs. In that case there should be relief for the KKK member under the civil rights laws as he is being discriminated against based on religious principles.

There are several recent, well-published cases where LGBTetc activists have pursued and I believe got it completely wrong, and have favored denying individual’s rights in favor of accommodation to others. It is my belief the courts got it wrong because they are misapplying the principles of individual liberties and accommodation, to inappropriately compelling someone to act in violation of their conscience, and in effect, creating law respecting religion (or in this case the lack of religion).

First, let’s look at the case of Elaine Huguenin. Personally, I believe this case was undermined by the defense as much as the judge. Elaine Huguenin is a photographer that I understand was very popular for portraits and weddings. Vanessa Willock and Misti Collinsworth are a same sex couple and wanted to have a same sex commitment ceremony. Ms Hugenin replied that they could not in good conscience perform the service because would cause her to “convey and celebrate” views that were in violation of her conscience. The couple found another photographer for the service but after the process sued. The courts ruled against the Hugeunins and they were held liable and fined for legal fees. In my mind, the court made a number of critical errors. First and foremost, New Mexico did not have sexuality as a protected class in their state civil rights laws, so had no basis from which to rule. Secondly, the Same Sex marriage was not allowed in NM and the ceremony was technically in violation. Thirdly, the court made the statement "First Amendment does not exempt creative or expressive businesses from anti-discrimination laws." This should generate a great deal of concern for proponents of individual rights. That literally puts individuals with religious views in the position of being compelled to express themselves in a manner inconsistent with their belief. This is literally the Jewish ad agency being compelled to work for the KKK, if a chapter of the KKK was so heinous as to request it. This is also the potential for the news reporter or blogger to be compelled to write positions they are in disagreement with. This is probably one of the most direct attacks on individual liberty in US history. Fourth, the couple were able to find a photographer and have their service so were not denied their ability to have the ceremony. Fifth, the Huguenin’s did not deny service because the couple were homosexual, they denied service because the event violated their beliefs. They stated officially for the record they had no problem taking portraits of the couple, just participating in the ceremony. So in all reality, the services weren’t denied on the basis of Sexuality, but because of the nature of the event. So, by ruling the way they did, the Court placed a specific event at a higher priority that the individual’s right to free expression.

In the case of the Masterpiece Cakeshop of Colorado, the situation was somewhat different. The owner specifically refused to sell products to a couple because they were gay. The problem is that the selling of the cake is not inherently religious. If the owner refused to put decorations or a message on the cake, it would be different. In this case, though, the owner refused to sell them any products due to their sexuality. That is clearly a violation of the letter and spirit of civil rights law. Baking a cake and selling it would not prevent the owner his free exercise of religion.

The interesting thing is now there is now a corollary case before the courts in Colorado. It seems a group with concerns about the previous ruling tried turning the tables. They requested baked goods with an anti-gay message. The owner has refused, and has offered a cake with enough frosting to let them make their own message. We’ll see where this one goes in court. In my mind, though, this baker should have the same right not to be compelled to provide a message she disagrees with.
The problem is the ACLU has made it a high priority to remove religion from the public square. Yet, when reading the Bill of Rights, or he rest of our Constitutional documents, I don’t see anywhere that rights can be provided only n secret. Rights that aren’t public aren’t rights.
But the targeting of religious freedom isn’t just toward individuals. It is also towards churches.  In New Jersey, the Ocean Grove Camp Meeting Assembly (OGCMA), a Methodist based organization and Christian retreat denied the use of its facilities for a civil union as it was not in conformance with their beliefs, the couple sued and the court ruled the Church had violated the state’s law against discrimination. During the court case, the activist community assailed the Church on multiple fronts, getting tax exemptions revoked. The result is the OGCMA no longer allows any weddings on its property so as not to be forced to operate in conflict with its beliefs.

The result of these has created a very serious concern in many religious communities about the attack on religious liberty. The result is a knee jerk reaction to create laws to protect rights the government, per it’s own creation documents, has no right to limit. The lack of reasonability and precision of the courts to protect the rights of all, we get religious rights protection laws that try to, in a generic sense, provide protections to the freedoms that we should already be protecting. Of course, the LGBTetc activist community fights very aggressively any attempts by the religious to protect their rights.
Meanwhile, a number of rights have been denied to the homosexual community. Housing for example. Gay couples are often denied renting or even purchased based on their status. That is obviously a legitimate rights denial – the concept of renting a room isn’t specifically a religious one, so denying a renter on that basis is a clear violation of existing civil rights law.

It seems we are at an impasse. But to me, it’s only an impasse because we have forgotten what liberty is and what it means, and what the price for it is. We seem to have forgotten the underlying meaning of rights and what it means to be compelled. There should be no conflict between religious freedom and the rights of the LGBTetc community. Right now, the LGBTetc community has pushed so hard beyond the point of equal rights, that it will damage the very fabric of liberty is not brought into check.

If courts can’t be brought into check soon, we’ll continue to have a rift and both sides will continue sparring. The key is to remember the key terms and philosophies. The key above all is individual liberty, and our goal is that we all have it.