Does Religious Freedom Entail the Freedom to Discriminate?

Should the conservative Christian baker be allowed to refuse to bake a cake for a same-sex wedding? Should the government pass new laws explicitly aimed at preserving her freedom to discriminate in this way?

As someone who believes in equality under the law, I will argue all day that the state is obligated to make civil marriage and the legal benefits that go with it available to same-sex couples (although I won't make that case here).

Because of this, I don't believe that agents of the state, acting as agents of the state, have a right to discriminate against same-sex couples even if their religion tells them to. They have a right to quit their job if the job duties conflict with their religious beliefs. But it seems to be a violation of church-state separation for the government to discriminate against same-sex couples based on sectarian religious beliefs. And if the state has no right to discriminate against same-sex couples, then neither do its agents when they act on behalf of the state.

But the conservative Christian baker is not an agent of the state. She's a private individual, free to be guided by sectarian religious convictions that can't and shouldn't dictate state practices. So, should she be free to discriminate? Should the state enact laws explicitly securing her that right?

As a Christian who believes in a sacred obligation to love our neighbors as ourselves, I will argue all day that deliberate discrimination against same-sex couples represents a serious failure to live up to the demands of the Christian love ethic (although I won't make that case here).

Because of this, I will argue that the Christian baker is confused about what her own faith requires. I will argue that were she true to the deepest meaning of Christian ethics, she would not discriminate against her same-sex neighbors in the way that she feels compelled to do. I will argue that, in the name of Christian conscience, she is living out teachings born of bigotry rather than the spirit of love, and so in the name of Christian conscience is doing the opposite of what Christ demands.

As a Christian, I think her decision to discriminate is deeply immoral. I think Jesus would weep. But the question isn't whether Jesus' love ethic permits her--a purported follower of Jesus--to do this. The question is whether the state should permit her to do it. More significantly, the question is whether the state should enact laws specifically designed to protect her freedom to do it.

As someone who believes the state should protect religious freedom and our right to act on religious conscience, I think the state has a duty--constrained only by other duties of comparable weight--to protect the freedom of individuals, acting as private citizens, to refuse to participate in activities that their religion tells them is wrong.

This is the place where laws like Indiana's new "Religious Freedom Restoration Act" get what ethical traction they have. These laws really are about the freedom to discriminate. We should be clear about that. But they are about freedom to discriminate in cases where such discrimination is mandated by one's religious convictions (however dubious they might be), and where one is not acting as an agent of the state.

It seems to me clear that a liberal democracy should protect the freedom to act on individual conscience--at least in the absence of some compelling state interest that justifies restricting it. If we are going to criticize these new "religious freedom" laws, we need to do so in a way that takes freedom of religious conscience seriously. And we can't base our criticisms on why the state and its agents shouldn't discriminate based on religious beliefs, or on why the religions at issue don't really call for such discrimination (even if these are legitimate arguments in their own right).

Instead, criticisms of such laws need to focus primarily on how protection of religious conscience is constrained by the broader duties of the state--and, I think, on the difference between business life and personal life, and the greater regulatory oversight that the state might legitimately have with respect to the former.

Let me begin with this second issue, because it lays the groundwork for thinking about the first.

If Mary, a conservative Christian and also a homemaker who bakes and decorates cakes as a hobby, is approached by her gay neighbors and asked to bake their wedding cake, there is no question in my mind that she should retain the right to refuse. Her right to do so is not under threat. As a private citizen, she shouldn't be compelled to act against her conscience--even if she can and should be challenged to rethink the substance of that conscience.

Yes, Mary, you have a right to say no based on your "Christian beliefs." No, Mary, I don't think Christ approves. Yes. Mary, I think you should be ashamed of yourself for refusing. If your neighbors shun you based on their conscience, good for them. But the choice is yours.

But now suppose that Mary has opened a bakery business. That business is part of the public sphere. The market system is a social strategy for maximizing the productivity of labor by allowing for the kind of specialization that increases competence but also makes people interdependent. To really do well at certain jobs, people need to specialize. But as soon as they specialize, they give up their independence. If you're a blacksmith, you can't eat the products of your labors. You become dependent on those who specialize in growing the food, just as they become dependent on you in various ways. When people agree to give up independence for the advantages that this sort of interdependence makes possible, a market system offers one particularly efficient way to exchange goods so that everyone has access to what they need.

Businesses are thus part of a complex set of social agreements that people have entered into for the sake of mutual benefit--a kind of social contract. And this means that when you enter the public sphere by opening a business, you are constrained by the social agreements that define that public sphere. In a free market, those constraints aren't arduous, but they aren't nonexistent, either.

One basic premise of such a business system is that people who choose to specialize give something up (the independence of the homesteader) and make a distinct contribution to the general welfare (through a specialized job) with the expectation that they will thereby become part of a system of interdependence in which their diverse needs can be met through purchases in the market. I contribute what I am good at, get paid for it, and can use that money to buy the things I want and need from those who are contributing what they are good at.

But what happens if I do this, and then find out that one of the things I need is unavailable to me--because others who have entered into this system of interdependence refuse to give it to me, or make it available only under certain arduous conditions? I have the money, but they won't sell to me (although they happily sell to others)--because of something to do with their private religious beliefs.

While it is clear that Mary should be free to refuse service to anyone in her role as a private citizen who bakes cakes for fun, it is far less clear that in her role as a member of this system of interdependence, she can refuse to serve anyone at any time for any reason. There might well be reasons that could justify her refusal--but her refusal is the sort of thing that stands in need of justification, given what might be called the social contract of the marketplace.

The question, then, is what is sufficient to justify her refusal. More precisely, is religious conscience sufficient to justify it?

Here's the problem. Suppose members of a minority group have given up the independence of the homesteader for the advantages of being part of the interdependent market system. They can, if you will, lay claim to the rights that come with participating in the social contract of the marketplace. But suppose their ability to exercise these rights--to access the advantages that come with participation in this system--would be significantly jeopardized were the majority free to discriminate based on their religious conscience. I'm envisioning here a religion whose values endorse a pattern of discriminatory behavior.

In that case, the business owner's presumptive right to act on religious conscience comes into conflict with the minority group's rights arising out of the social contract of the marketplace. And so the state, as an agent of the people collectively, may have a justification for precluding the discriminatory practices. The minority group's rights to equitable access to the goods of the market clash with the individual's claim on being free to act on a conscience that tells them to discriminate.

Do sexual minorities face this kind of situation? Would they be likely to face it in at least some communities were the Religious Freedom Restoration Act to be enforced? If so, the Religious Freedom Restoration Act would amount to the state taking a decisive stand against the right to equitable access to the goods of the marketplace in favor of the right to discriminate based on religious conscience. The state would be declaring that certain beneficiaries of a collective social agreement are allowed to behave in ways that deprive others of the promised benefits of that social agreement. And that, I think, would be a violation of the state's overall duties relative to its proper role in society.

This is the framework within which I think we need to think about policies like the Religious Freedom Restoration Act. What does the act allow in terms of discriminatory behavior? Is there a danger, based on what it allows, that forms of discrimination will become sufficiently common to risk depriving some people of equitable access to the goods of the market--goods they have a presumptive right to expect based on their good faith participation in the system?

I think we could all agree (couldn't we?) that IF the answer to this last question is yes, then laws like the RFRA are unjust. If so, then we should focus our energies on deciding whether the answer is yes.

Satanic Monuments and Church-State Separation: The Perspective of One Oklahoma Christian

Oklahoma made news this week when the Satanic Temple unveiled the design for its proposed monument to Satan, which it has sought a permit to build on the grounds of the Oklahoma capitol building. Here's what it would look like:



Kind of like a goat-headed Santa Claus, at least going by the looks on the children's faces. I'm not sure actual children would be quite so adoring.

In a tongue-in-cheek statement, the spokesperson and leader of the Satanic Temple, Lucien Greaves (aka Doug Mesner), noted that the monument would be functional as well a symbolic, serving as a place "where people of all ages may sit on the lap of Satan for inspiration and contemplation" (although, as Robin Abcarian of the LA Times has noted, the monument might be more suitably used as a time-out chair by parents--a proposal that might cause me to rethink my view that time-out is generally preferable to corporal punishment).

The proposed monument is a response to the erection, in 2012, of a privately-commissioned Ten Commandments monument that is now on display on the Oklahoma capitol grounds. Doug Mesner has elsewhere acknowledged that the Satanic Temple was originally created to serve as "a 'poison pill' in the church/state debate. The idea was that Satanists, asserting their rights and privileges where religious agendas have been successful in imposing themselves upon public affairs, could serve as a poignant reminder that such privileges are for everybody, and can be used to serve an agenda beyond the current narrow understanding of what 'the' religious agenda is." Their current move is in the spirit of this founding mission.

The ACLU is currently suing to have the Ten Commandments monument removed--and the state of Oklahoma has put a "moratorium" on further religious monuments pending the outcome of the suit (there have, since the erection of the Ten Commandments monument, been requests from several other groups to erect monuments, including representatives of a major world religion, Hinduism). Put another way, the state has actually been able to use the ACLU lawsuit as a kind of cover--allowing them to reject other organizations' petititions for monument space.

But, eventually, the lawsuit will run its course. If the ACLU wins, the Ten Commandments will be taken down and the Satanists won't be able to erect their goat-headed Santa. But what happens if the ACLU loses?

There is, after all, an argument that could be made that keeping the Ten Commandments monument does not violate the establishment of religion clause in the Constitution. If the monument is treated as an historically significant symbol of the rule of law, apart from its religious content, there might be an argument for saying that the state of Oklahoma is not violating church/state separation by allowing a private group to erect the monument. This, in fact, seems to be the line that supporters of the current monument are taking.

But the state could make this case for preserving the monument only if it were equally open to erecting other such law-symbolizing monuments, and only if it adopted religion-neutral procedures for deciding which such symbolic monuments to erect. That is, they'd need to make decisions about monuments with no favoritism based on the religion of the monument sponsors and no favoritism based on the sectarian religious messages symbolically endorsed by the monument itself--and with a commitment to even-handedness in the implied message that the resultant mix of symbolic monuments conveys.

If the State of Oklahoma wants to pursue that course, they might win. And they might even avoid having to put up the proposed Satanic monument, since it is not overtly a symbol of the rule of law. But the Satanic Temple folks have proven themselves clever enough that they could quite readily revise their proposed monument to reflect the Satanic Temple's attitude towards laws.

And, in fact, the Satanic Temple does seem to have a law-and-order perspective that they want to bring into public conversation. Speaking of the Satanic Temple's relationship to Anton LaVey, author of the "Satanic Bible," Mesner had this to say:

LaVey’s rhetoric tended toward Social Darwinistic Police State politics. Since 1995, violence in the United States—and, in fact, the world over—has been in decline, and we’re now in a position to evaluate what’s working for us, and where we went wrong previously. Certainly, a strong and effective police presence is a contributing factor, but we also find that autocratic governments breed social violence. We also find that Social Darwinism, interpreted in brutal, strictly self-interested terms, is counter-productive, and based on a simplistic misinterpretation of evolutionary theory. We do better when we work in groups, where altruism and compassion are rewarded. We are social animals. That said, however, I believe in a system that runs meritocratically. Also, revenge is a natural impulse, without which justice would never be served. We should do our best to mitigate the pain of those who are suffering, whoever they are—but also be diligent to punish the misdeeds of those who behave unjustly to those around them.

According to Mesner, the Satanic Temple does not embrace Satan as a literal being, but as a symbol wedded to an atheistic worldview. Satan names "a rebel angel defiant of autocratic structure and concerned with the material world," and this serves as an apt metaphor for a certain attitude towards political freedom and atheism, one that could be symbolically represented in a way that would likely meet the requirements for a monument on the Capitol grounds.

In other words, even if the particular monument proposal currently offered up by the Satanic Temple could be rejected in a manner consistent with church-state separation (while still preserving the Ten Commandments monument), it doesn't follow that the State of Oklahoma is safe from Satanic monuments.

Put more simply: If the state really wants to fight for the Ten Commandments monument in a manner consistent with church/state separation, it opens a big door. And while space limitations may give the state some leeway to choose among proposed monuments, the mechanisms whereby such choices must be made would be fraught with complications, potentially unsavory outcomes, and dangers of future lawsuits. Not to mention an aesthetic mess as rival groups clamor to install their goat-Santas and Flying Spaghetti Monsters on the Capitol grounds.

I'm a fan of the Ten Commandments. But I'm also a fan of church/state separation. The constitutional prohibition against state sponsorship of a particular religion is a promise to every religious and non-religious community in the country. It is a promise against having our religious freedom curtailed by the demands of a different religion that has come to enjoy theocratic control. It is a promise of a level playing field, in which all of us are afforded the freedom to live out our own comprehensive conception of the good life in a manner consistent with everyone have the same opportunity.

Allowing the Ten Commandments onto the grounds of the state capitol--unless it is done in a manner that would also allow the Satanic Temple to erect their own symbol of law--threatens that promise. But any threat to that promise is a threat to those of us who want to live a religious life informed by our understanding of the Ten Commandments. It threatens us because state sponsorship of religion may not always sponsor a religion supportive of the practice of our own.

Pursuing a policy that is both consistent with the promise of church/state separation and allows for the continued presence of the Ten Commandments monument is a kind of quagmire, one in which the Ten Commandments are lost, figuratively and literally, amidst the clutter on the Capitol lawn.

Far better, in the end, for those of us who care about the Ten Commandments to honor them on private ground.