Why Some Freedom of Religion Claims Are Morally Bogus

It may be distasteful for a conservative evangelical to decorate a gay wedding cake, but it is not immoral.

On a trip to Georgia, I enter a restaurant with my partner, who is male. “Sorry,” the maître-d’ says, “we don’t serve homosexuals.”

According to the law being debated in Georgia — quite similar to the one just vetoed by Arizona Gov. Jan Brewer — this would be perfectly legal. That law — like others rejected by legislators in South Dakota, Kansas, Idaho, and Tennessee — is the latest salvo in a long campaign to redefine “religious liberty” to include the liberty to discriminate against other people.

The campaign targets women as well as LGBTs. Next month, the United States Supreme Court will determine whether corporations have consciences, and if so, whether they can opt out of laws on the basis of them. This will immediately affect millions of women who want contraception covered by their insurance (as is, say, Viagra). But it will also impact millions more who corporations may wish not to serve or employ — like me and my partner.

When a woman takes a birth control pill, is there really shared moral responsibility between the woman and her employer who enabled an insurance company to pay for it?

On the face of it, these controversies are about a basic conflict between two sets of rights: the right to practice one’s religion (which may involve discriminating against some people) and the right to be free from discrimination.

But in fact, this whole frame is mistaken. What it misses is the moral incoherence of the “religious liberty” position.

Is it ethically, philosophically, or even logically the case that providing an option as part of an insurance plan is the same as exercising that option? Is it the same as providing contraception? When a woman takes a birth control pill, is there really shared moral responsibility between the woman and her employer who enabled an insurance company to pay for it?

Or take the example of the restaurant in Georgia. Is it true that serving a gay couple dinner is tantamount to accepting homosexuality? Am I approving of the “lifestyle choices” of everyone who visits my restaurant? Gun owners? Pet owners? Feminists? Is that what operating a business means?

Of course not. But it’s a difficult question to adjudicate. Courts justifiably fear to tread into the activity of adjudicating the reasonableness of religious views. Not only is doing so a violation of the First Amendment, but it is not at all clear how such adjudication should proceed.

At the same time, we’re not at square one, either. Supreme Court precedent has long recognized that just because someone asserts a religious belief does not mean that courts will accept it. Usually, this issue arises in the case of new religious movements (the scholarly term for “cults”), whose members have asserted all kinds of wacky religious requirements: eating only natural foods; sleeping on special linens in prison. Occasionally, they have been extended to mainstream religions, though usually only when someone says their religion forbids them from paying taxes.

Here, though, no court need reach the question of whether it is reasonable to disapprove of homosexuality or contraception. The question is whether it is reasonable to move from that disapproval to the conclusions that Hobby Lobby and the “religious liberty” movement assert. We do not question the former — but we do question the latter.

If a hotel puts me up for the night, I may have sex with my partner, practice voodoo, or injure myself with the hairdryer. None of these actions are the hotel’s responsibility.

First, there is the simple matter that businesses are not individuals. Courts, and common sense, have long affirmed Jesus’s admonition to render unto Caesar what is Caesar’s and unto God what is God’s (Matthew 22:21). When a business opens its doors, it is participating in a marketplace, and that marketplace has rules. Obeying those rules is not the same as taking moral responsibility for everything that doing so entails.

Second, it is simply not the case, logically speaking, that providing insurance coverage is taking moral responsibility for how it is used. Would Hobby Lobby be liable if an employee overdosed on painkillers, paid for by its insurance plan? Obviously not. Then likewise here: they cannot assert a religious liberty claim for an action someone else decides to take.

So, too, if a hotel puts me up for the night, I may have sex with my partner, practice voodoo, or injure myself with the hairdryer. None of these actions are the hotel’s responsibility, and thus none may be asserted as a reason to refuse me service.

There is no causal nexus between a business — even a sole proprietorship — obeying commercial laws and the businesses owner’s moral culpability. It may be distasteful for a conservative evangelical to decorate a gay wedding cake, but it is not immoral.

Admittedly, this syllogistic reasoning treads close to the border of evaluating religious beliefs. But it does not transgress it. And it tracks more closely how most Americans view these issues.

In 1960, the owner of that Woolworth’s lunch counter may well have believed that he was religiously and morally forbidden from serving African Americans. But he was wrong. And courts were right to use the force of law against him. 

Note: The opinions expressed in this essay belong to the author. 

Dr. Jay Michaelson
Written by

  • Faithful

    Should a black business be forced to provide a cake with the inscription “God hates Blacks” for a KKK party? Should a Jewish businessman be force by the state to provide business services on Saturday? This is not about discrimination it is about whether the state has a compelling interest in forcing a person to violate their religious beliefs to satisfy another group with differing views. Serving a Gay couple in your restaurant is not the same as being asked to participate in the celebration or ceremony that is against what a person may believe. If a religion calls for the death of another group the state has a compelling interest to stop that ie our governments efforts to stop terrorism. However if there are plenty of other options why would the Gay couple not choose those rather than intimidate the business owner with differing beliefs with threats of lawsuits? My believe is that they want full endorsement of their lifestyle and that this is a form of intimidation to gain that. Finally this is not the same a Jim Crow laws which were government forced discrimination laws that did not allow blacks to be served in white restaurants. This a private individual whose chooses not to provide services to those who he disagrees with. If in fact Gay weddings are good business he will miss out on that business and suffer the consequences in the marketplace as he should.

  • Syttende Mai

    Asinine.

  • JoFro

    I’m calling B.S. on the claim he and his gay lover were not served in a restaurant because they were gay – seriously, how on earth did the restaurant know they were gay? Did they enter wearing shirts “We’re gay and here to stay”, did they smooch each other as they entered? Did they start making love at the door? This is a scenario that seems to have only happened in the mind of the author of this hit-piece.

    Also, there is a huge difference between a baker being forced to cater a gay wedding and a gay couple being refused service at a restaurant!

    • jimlouvier

      You missed the part where the author said that “According to the law being debated in Georgia — quite similar to the one
      just vetoed by Arizona Gov. Jan Brewer — this would be perfectly legal.”

      The author was simply illustrating something that could become common if the law were passed that would allow this.

  • Tom Matthews

    Faithful, this is no different than a restaurant denying a black person a table. During the 50’s and 60’s, plenty of ministers from my area of the country — the south — justified segregation based on their religious beliefs. They preached that god intended the races to be separate. Their use of religious justification to deny equal treatment is no different than a wedding photographer denying to photograph a gay wedding.

    It seems as though you are saying that denying use of your restaurant is different than denying service. I disagree. Both are private companies that provide a service in the public sphere. In each case, a company offering services to the public is using their religious beliefs to deny service to a group of people. I don’t see a difference. Maybe you or JoFro can explain it to me.

    If ever there was a slippery slope toward unfettered discrimination, this law is it. Much like Florida’s stand your ground law, the now vetoed Arizona law requires no proof that it violates anyone’s religious tenets. All it takes is for someone to believe it violates a religious belief. How would that be enforced? It would become an excuse to discriminate against any group that you want as long as you justified it as violating a firmly held belief.

    • Faithful

      Tom:
      A couple of questions, do you ever feel someone should have the right to refuse service because of his or her beliefs? Should the black man be “forced” to cater the KKK rally where racial epithets are said to him? Should the owner of a restaurant ever be allow to ask someone to leave if they are saying what he considers inappropriate things based on his beliefs? Should the Gay couple be forced to cater a meeting of an organization whose goal is to ban Gay marriage? The Governor of New Mexico’s hair dresser has decided he will no longer cut the Governors hair because she does not support Gay marriage. Should she sue him?

      Each is us draws the line in a different place. All I want is the freedom to not have the Government tell me where to draw the line. To you serving someone in a restaurant is the same as participating in their Gay wedding. To me it is not. You have a right to your belief and I support it. I also support the right of the Gay hairdresser not to provide service to those he disagrees with. Why should I not have the same right?

      The real question is does the state have a compelling interest in forcing an individual to serve and participate in a ceremony which he or she feels violates his or her beliefs when many other options are available to those persons requesting the services. I believe the government does not in these cases.