Recently, the Public Religion Research Institute (PRRI), a nonpartisan, nonprofit research organization released the results of a poll it conducted regarding religious liberty issues. The group found that 64% of respondents did not support religiously based refusals to serve gays and lesbians. The question was germane in response to a case from the state of Washington where the Supreme Court ruled last month that a florist does not have a First Amendment right (either free speech or free exercise) to refuse to provide flowers for a same-sex wedding/commitment ceremony. I reluctantly admit that this is a fairly close case because it pits two very important rights directly against each other. And while I understand and sympathize with the hue and cry coming from conservative Christian camps because of this decision, at the end of the day, I still side with the gay couple who want to be free of discrimination in the stream of commerce.
This case is actually much easier for me to resolve to myself legally than it is religiously. (I’ll attempt to explain both.) Legally, this is a fairly easily disposed of discrimination case. Washington has a statute, much like all the states and the federal government, that says people cannot be discriminated against in public services and accommodations based on race, sex, or sexual orientation, amongst other classifications. The courts have a rather simple test about whether a law violates the free-exercise clause. As established by Oregon v. Smith, if the law in question is a neutral law that is generally applicable to everyone, then a free- exercise exemption will not be granted.1 Because the Washington Law Against Discrimination applies to everyone and was not established to hamper the florist’s faith, then the law will stand against a free-exercise challenge. The issues of general applicability is important to me. The law that protects the same-sex couple from discrimination is the same law that allows me to get a hotel room or a hamburger at a restaurant, regardless of what the owner thinks about Black people.2 So the question must be asked—What if someone, because of their religious beliefs, felt that Black people were substandard and, therefore, should not marry White people? Are we OK with that person being able to deny service to the couple based on miscegenation? I am sorry, but I am not. I do not want to put the pressure on the consumer to be offended over and over again based on a characteristic that they believe is unchanging and is immutable to who they are.3 Regardless of our beliefs about sexuality or race, people being who they are is just an outward manifestation of the self-determination that is at the very heart of what is supposed to make us American. And if we are supposed be American, if we are supposed to be e pluribus unum, then I do not want to create a tribalized society where we only interact with those who think and believe as we are. We do not grow as people when we wall ourselves off from each other so that gay people are only served by those who do not have problems with gay people, and Black people are only served by those who already do not have a problem with Black people. How do we ever learn to get over our prejudices and misconceived notions if that is the type of society we create?
This is a much more difficult question from a religious perspective. I totally understand the idea that someone should not have to serve or lend their talents to people or to an event that they do not support personally. Once again I admit how tough a case this is. I have two thoughts about this that I think have some spiritual applicability. First, I do not know what you really accomplish from a spiritual perspective by not providing the service. Even if you think that same-sex marriage is wrong, what sin have you committed by photographing their wedding? You have not supported the wedding; you have not even helped the wedding take place. You have not even given your tacit or implicit consent to the event. To be clear, I say this without one iota of facetiousness. I am really at a loss as to what biblical rule you violated by being paid to photograph a gay wedding. (Seriously, if you know the answer to this question, please leave a comment.) It seems to me that all you have accomplished is the assuaging of your own feelings by making it more difficult for the gay couple to accomplish something that you think they should not do. There seems to be a certain pride in having set up an impediment in their way. Do we have a biblical imperative to do those types of things? I do not know that we do.
Second, there seem to be many examples of Jesus providing services to people He did not agree with in terms of their lifestyle and the choices they made. He heals people and raises them from the dead with no regard for who they are or what they have done (at least as far as the biblical record shows). He helps people He is not supposed to help because they believe something different from Him. Furthermore, God does not stop blessing people even as they use his blessings to facilitate choices and decisions that are not in line with what God wants for them.
I cannot stress enough how conflicted I am on this issue, as someone who approaches these questions as a defender of religious freedom. As much as I believe the position I am advocating, I understand and in some ways agree with the arguments that are being presented on the other side. I have to admit it bothers me that conservative Christians attempt to take advantage of free exercise to such an extent that I often feel that the right thing to do now is argue against it. Legally, these things live in tension, and there must be a balance. I am not against free exercise in abstract. What I am against is Christians using their religious beliefs just to make life difficult for other people, in order to assuage their own feelings about what is right and what is wrong. In this space I wrote before about being like Jesus, focusing on the idea from Paul that we should not be looking out for our own selfish interests but look to the interest of others, esteeming others as more important than ourselves. When I think about love, the refrain echoes to me that true love seeks not its own. There are certainly limits to those biblical concepts, and as much as I understand the thought process of the people who disagree with me on this issue, I do not see how this particular concept even comes close to those limits.
1-- Many people of all political stripes disagree with Justice Scalia’s rationale in Smith. One of those detractors at one point included me. However, I have had to begrudgingly admit that Justice Scalia had a point as I have seen Christians attempt to use the free-exercise clause against those who do not share their values.
2-- I guess I have no problem with those who argue that we should allow people to discriminate against whoever we want because we do not need these laws to protect us anymore. I think that is naïve, but I guess I see your point.
3-- I know some people will disagree on whether homosexual orientation is an immutable characteristic, and your objections are well taken. Except I do not think our understanding (or lack thereof) matters much in this situation. I do not see sexual orientation as the same as alcoholism or promiscuity. I know way too many gay people who pray to God to change their orientation and nothing happens. I do not believe that gay people choose this for themselves.
Jason Hines is a former attorney with a doctorate in Religion, Politics, and Society from the J.M. Dawson Institute of Church-State Studies at Baylor University. He is also an assistant professor at Adventist University of Health Sciences. He blogs about religious liberty and other issues at www.TheHinesight.Blogspot.com.
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