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The Equality Act and Religious Freedom

Friday, July 24, 2015

Yesterday (Thursday, July 22, 2015) "The Equality Act" was introduced in Congress.  This act would "outlaw discrimination on the basis of sexual orientation or gender identity in employment, housing, public accommodations, and other areas of law where discrimination is already prohibited for others," according to a MarketWatch article.

This is certain to butt up against the traditional view of religious freedom held by many Americans.  It is also certain to keep the political waters roiling, which may be part of what it is designed to do anyway. In its current form I doubt it is likely to pass the Republican Congress. But we have to have more than just a "no" vote.

The Standard "Three-Prong Test"

Federal courts have a very well-established precedent for evaluating laws which place restrictions on constitutional liberties.  In order to have a productive, reasoned debate about this issue, these liberties have to be clarified.  While we may not like having to accept the reality of a constitutional right to marriage, these are now the judicial 'facts on the ground'.

The second liberty in question is the freedom of religion, which is inescapably in question here.  The homosexual community will argue that it is not in question because the courts have already ruled that people cannot be denied things like housing (e.g. an unmarried heterosexual couple) based on religious objections to their living arrangement. Apples are being compared to oranges here, and this comparison will become clear when we look at this "three prong test."

When a law restricts the exercise of a constitutional right, the government must show three things: 1) the restriction is in furtherance of a "compelling governmental interest;" 2) the restriction is the "least restrictive means" of furthering that interest; and 3) the restriction does not place an "undue burden" on the individual seeking to exercise that right.  If a former test can not be met, the latter test or tests are moot.

Apples and Oranges

This is why, to start with, the law cannot infringe upon the religious freedom of a Christian photographer or baker unless it can be argued that there is a "compelling governmental interest" in a gay couple being served by one photographer over another, or by one baker over another.  If that first test is not passed, the other two are irrelevant.

It gets a little more complicated when it comes to service in, say, a restaurant.  While it could be argued that there are other restaurants which will serve a gay couple (the same basic argument as the baker/photographer), it can be argued (and personally, this is how I see the issue) that access to basics like food implicate a "compelling governmental interest" and so can be required by law regardless of a restaurant owner's moral objections.  If a restaurant can deny service to a gay couple, then a grocery store could as well.  If we follow the logic to its necessary end, the "compelling governmental interest" only becomes clearer the further we go along that logical path.

And it becomes easily recognized when we talk about housing.  The ability to obtain shelter is clearly a "compelling governmental interest" and so the law can require a Christian landlord to rent to a gay couple just as it now does an unmarried heterosexual couple - religious convictions notwithstanding.

Questionable Motives

If the effort is to have a reasoned debate, it is usually not helpful to question motives.  But there is a side to this matter that merits a question: Islam as a religion has the same, if not an even stronger and more uniform objection to homosexuality as does conservative Christianity.  Yet there have been no reports of gay couples seeking out the services of Muslim photographers or bakers.  Are we to conclude that we have no Muslim neighbors engaged in these professions?  Or is this a concerted effort to both marginalize and criminalize the consciences of conservative Christians?

There is an intellectual drift on the part of the American Left away from classical liberalism when it comes to religion.  We saw this in the Obama administration's original regulations on birth control and health insurance.  An exemption was granted for "houses of worship" but not for an organization like a Christian hospital.  What this amounts to is the transformation of "freedom of religion" into "freedom of worship."  These two are not the same.

We see the same pattern in this debate over gay marriage.  It is said that churches and ministers will not be required to host or officiate gay marriages.  But a Christian baker, photographer, or wedding planner will have to serve a gay couple in the preparation and performance of their wedding.  The distinction is disingenuous (and patently illiberal) precisely because it diminishes the freedom of religion into merely a freedom of worship.  The difference between the two is conscience.  For the freedom of religion to survive, our consciences must remain free to guide our actions unless a "compelling governmental interest" is otherwise implicated.  Again, the burden lies on the gay couple to prove there exists a "compelling governmental interest" in being served by one photographer, baker, or wedding planner over another.

Unconservative Moralism

But there is a flip side to this debate.  I have already written about how, if I were a baker and were in the business of baking wedding cakes, my conscience would lead me not only to serve the gay couple, but to bake them the very finest possible wedding cake.  My conscience leads me in this way because I observe from Scripture that sex and gender are characteristics we share with the animals, not with God.  We are created in the "image of God" and so we share certain characteristics with God as well - our creativity perhaps being the most important of many.

I would certainly be uncomfortable so serving a gay couple.  But my Scriptures also teach me that being redemptive is - more often than not - quite uncomfortable.  And as time passes, it only seems to become more so.  As a result it becomes ever more important that my conscience call me back to the very foundation of Judeo-Christian ethics - presenting the "image of God" in our world.  I reason that in the exercise of my creativity - be that in baking cakes, as it were - I meaningfully present the image of God.  As so, to present His image in the lives of a gay couple who are my neighbors, I would create the finest possible cake for their wedding.

My question for those who share my conservative outlook and my discomfort with homosexuality is this: Am I free to follow my conscience without a cloud of unconservative moralism hovering over it?  I am not objecting to being asked to weigh the ethical issues surrounding this topic from both sides.  I am objecting to the sense that "being right" is a valid end in and of itself.  Maybe in a court of law it is, but as I seek to be redemptive in my world, it manifestly is not.

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