"When law & morality contradict each other, the citizen has the cruel alternative of either losing his moral sense or losing his respect for the law." – Frederic Bastiat
The enemies of America have been having a field day with duplicitous insidious attacks against the Indiana & Arkansas state versions of the federal Religious Freedom Restoration Act of 1993 (RFRA) that was introduced in the House by then NY Congressman Chuck Schumer, in the Senate by the late Senator Ted Kennedy, & signed into law by President Bill Clinton. There was a unanimous vote in the House & a near unanimous 97 to 3 vote in the Senate supporting RFRA.
RFRA provides a means for a religious objector to become exempt from applicable law & claims of discrimination.
For instance a landlord could ask for an exemption under RFRA if for religious reasons he objected to renting an apartment to an unmarried man & women even though state law prohibits marital status discrimination in housing matters. Such a situation has been referred to as living in sin so this example of claiming an exemption has a religious basis for some.
A more recent example was the Hobby Lobby case in which the Supreme Court determined in a 5 to 4 vote that employers are not required to provide female employees with no-cost contraception because of religious convictions to the contrary.
With the above as background the enemies of America have turned the matter into a clash over pretending to respect people of faith versus citing them for discrimination against homosexuals – examples include bakers, florists, & photographers who do not want to provide their services on religious grounds for homosexual marriage ceremonies.
A simple question is what couple (homosexual or straight) would want to have a baker, florist, or photographer be part of their wedding ceremony if the service provider did not share in the happy occasion – if there was not another agenda or ulterior motive like undermining the founding principles of our country?
In the latest assault the media has added Memories Pizza of Walkerton Indiana to the list of bakers, florists, & photographers to be charged with discrimination against homosexuals after Memories co-owner Crystal O'Connor told a local news station that if a homosexual couple wanted to order pizzas for their wedding, "we would have to say no." How many weddings or receptions have you been to that served pizza? So why would the media interrogate a pizza store owner?
Of course the media driven brouhaha has nothing to do with discrimination against homosexuals & everything to do with destroying both individual rights & freedoms. The late Harvard professor Robert Nozick, author of one of my favorite books – Anarchy, State, & Utopia – wrote that only a minimal state "limited to the narrow functions of protection against force, theft, fraud, enforcement of contracts. . ." could be justified without violating people's rights - & in this case involving RFRA & claims of homosexual marriage discrimination the principal right violated is the constitutional right of freedom of association.
The Constitution does provide anti-discrimination protection for age (in voting), citizenship (in naturalization), race (in voting), sex (in voting), & voting (no poll taxes). Unlike the foregoing specific constitutional anti-discrimination protections there is no specific constitutional anti-discrimination protection for homosexual weddings. This means that homosexual supporters who want to cite people of religious faith with discrimination against homosexuals must rely on the 14th Amendment to defend their actions – "No state shall. . . deny to any person within its jurisdiction the equal protection of the laws."
The basis for disposing of this position regarding the current argument is found in The Federalist No. 78 where Alexander Hamilton wrote that the Constitution is the fundamental law that has the superior obligation & validity that takes preference over statutes.
This means the law referred to in the 14th Amendment is the Constitution & in particular the First Amendment guaranteeing the free exercise of religion & the right of expressive association – that is there is a right to associate to engage in the activities protected in the First Amendment.
Anti-discrimination statutes such as the Civil Rights Act of 1964, the Age Discrimination Act of 1975, or the Americans With Disabilities Act of 1990 do not take preference over any parts of the Constitution. Accordingly, the religious rights & rights of association of the First Amendment take precedent over the aforementioned statutes.
This is not to say that the courts could not find against the Constitution - in violation of the justices' oaths - in ruling for their notion of the greater good of not promoting any perceived discrimination in America – of course a ruling in favor of forced participation in homosexual marriages in this case means a vote against the free exercise of religion of bakers, florists, photographers, & pizza pie makers. With four left wing justices on the Supreme Court willing to find any statist presentation constitutional & three others of the nine reading the text of the Constitution as originalists means that every decision will be decided by either Roberts' &/or Kennedy's feeling that particular day. What a terrible way to decide the issues in our country.
"We're not discriminating against anyone, that's just our belief & anyone has the right to believe in anything" – pizza maker Crystal O'Connor told a local news station.
Many businesses clearly display the sign "We reserve the right to refuse service to anybody." Business owners who display such a sign try to enforce the words as they see fit but I don't know of any that refuse service to anyone that the aforementioned Civil Rights Act considers a protected class. In brief, if they did it would be bad for business – most people would exercise their freedom to associate by not associating with bigoted business owners.
There are dress codes @ Saratoga Race Course, fine restaurants, golf courses, & businesses. Bars regularly offer "ladies nights" where women are served @ a discount & students, veterans, & senior citizens are often encouraged to use certain products or services @ lower costs than the general public – there is nothing about students, veterans, or senior citizens that make delivering the products or services less expensive – it is simply a marketing ploy to make these people partake.
Stutterers can find it hard to get a job; older people are perceived as feeble; deaf people love to say they are deaf not stupid; & single sex schools do not admit people of the opposite sex – like the above these additional examples display forms of discrimination to one degree or another. Even signs that say "no solicitations" can be considered discriminatory when all the owner of a business or medical practice wants to do is be left alone – similar to the no call telephone list.
How far we want to go with all of this should be carefully considered. If we make or enforce rules so politically correct that they become burdensome we are in danger of creating unintended weapons against our entire way of life – if we haven't already.
RFRA was intended for such matters like disputes over whether or not Muslim prisoners had to shave their beards – the Muslim prisoner had to prove it was a religious hardship to shave his beard & if he did the government was then compelled to use the least restrictive means of achieving the state interest.
RFRA enforcement has been expanded in the above homosexual wedding examples to require the religious objector to make his case explaining why he should be excused from an activity deliberately distorted to be portrayed as hurtful discrimination – this is a burden not freedom of association & accordingly it is not right in a free society. People should not need a reason like showing how religious they are to not participate in something. It is akin to being guilty before given a pass.
We can see where this is going – we already have a healthcare law that requires people to buy a product or be fined (taxed) & a Medicare law that requires people to privately insure the government's single payer partial coverage if they want decent coverage.
Freedom of association as described above solves the dilemma of the cruel alternative presented by Frederic Bastiat above – unless someone is purposely looking for trouble.
Christine Upton summed this up when she wrote "How we perceive of the world around us determines the outcome of what it is we choose to see or not see."
Reference Post: Individual Rights & Homosexual Marriage