Religious Freedom and the Right to Oppress


During his time as a columnist, Ortiz will be alternating between reporting and analysis and editorial/op-ed writing. In last week's column, he explained and analyzed the Iran Deal. Today's column is an op-ed on why Ortiz believes religious freedom and the Religious Freedom and Restoration Act have caused more discrimination, not less. Since the founding of our country our citizens have cherished their right of freedom of religion and all the blessings that it entails, from being free to attend church on any street corner, to being dragged by your aunt to lackluster potlucks, or to having the liberty to sign up for Christian Mingle. According to many Christians today, however, the freedom of religion is under attack. Recently, County Clerk Kim Davis was jailed after refusing to give marriage licenses to six gay couples (she has since been released). This case was a bit more cut and dry, as Davis is a government employee and ran for office to uphold the law, not ignore it.

Some Christian conservatives have pointed out that while Davis was a government employee and cannot ignore the law, private businesses are another matter. Twenty-one states have Religious Freedom and Restoration Acts (RFRA), laws that allow private businesses to refuse to serve a customer if they are gay.  The law intends to allow Christians who oppose gay marriage a legal way to protect their religious freedom of conscience. In Michigan, this law allowed for a pediatrician in Detroit to refuse to treat a six year old baby because her mothers were lesbians. In Texas, a restaurant called Big Earl’s used a similar law as an excuse to announce to customers that they will ‘not serve fags.’ Perhaps most famously, Memories Pizza in Indiana refused to cater a gay couple’s wedding for fear that aiding in the ceremony would make them accomplices to sin (perhaps the saddest part of all of this is that anyone would be having pizza at their wedding; surely that is a sin in some book). Beyond that, a majority of states use freedom of religion as a justification for employers to fire employees for being gay; to be clear, that means you could conceivably legally marry on Sunday and legally be fired because you’re married that Monday.

Defenders of the law point out that, since they have the right to freedom of religion, they should not be forced to ‘enable’ sin, and violate their traditional marriage views. The problem with this is that Christian business owners are rather selective with the sins they’re afraid of enabling. I question whether the pediatrician in Detroit asks his patients whether or not they’re atheists, if the owner of Big Earl’s asks his patrons if they’ve kept the Sabbath and been faithful to their spouses, and if Memories Pizza ever checked if their couples were being married by the Church or if they ever engaged in pre-marital sex. Christian businesses routinely serve customers who do not believe in God and live sinful lifestyles, but they believe serving gays, even if they’re Christians, is sinful and a violation of their freedom of religion. For many businesses this doesn’t seem to be about freedom of religion or aiding sin; this is about discriminating against a group of people who they view as disgusting because they are different. Ultimately, if you’re going to use religion as an excuse to ignore the law and strip the civil rights of others, you better have a compelling case why doing so is uniquely integral to your religious beliefs.

More astute defenders of RFRA would point out that, even if religious beliefs are inconsistent, they still cannot be violated by the government, and businesses still have the right to decline serving whomever they see fit. Except that’s not exactly how freedom of religion works. If religious exemptions to laws don’t hurt anyone, like children taking communion, the state cannot infringe on that right. However, it’s a whole other matter to say that citizens can use religion to ignore laws and infringe on the rights of others. Most Christians today would be outraged if a Muslim fired someone because they were Christian, if a company refused to hire Jews, or if a Hindu business refused to serve women. Everyone has freedom to exercise religion, but not the freedom to use religion to hinder the rights of others.

These examples of discrimination are admittedly different from homosexuality. However, the Supreme Court in Obergefell v. Hodges has ruled that a person’s rights; freedom of expression, of thought, and ultimately the freedom to marry, are no longer dependent on their gender or sexuality.  Discriminating against someone because they are gay is, in effect, no different than discriminating against someone because they’re a woman. Katzenback v. Mclung, further has already ruled that stores have no legal right to discriminate against a minority group. Even if you don’t think gays should have the right to marry in the first place, you cannot say that their sexuality doesn’t disqualify them from marrying, but does disqualify them from the equal protection of the rest of their rights. It’s unclear how that inconsistency could be explained in a compelling way.

Why this matters is that millions of law abiding Americans are now second class citizens with their rights perpetually in jeopardy, all under the guise of protecting religious liberty. If you’re in one of the twenty-one different states with RFRA, your freedom of expression, freedom to engage in commerce, right to fair and equal treatment, and job security are dependent on a business owner’s prejudices. These laws do not protect freedom. The liberty to discriminate or abuse is not liberty at all, just as laws that citizens can use their religious beliefs to ignore are not really effective laws at all. Your protection of equal rights should not be subject to whether or not the business owner believes those rights are worth protecting. You cannot be an American citizen with rights, freedom, protection under the law and human dignity while you walk into one store, and be called offensive epithets and refused rights when you walk into another.