The basic concept is that there are three competing interests, three legs of the stool, if you will. Security. Liberty. Equality. The problem, as with any stool, is keeping the three legs in balance. If one is longer, or shorter, the stool tilts and you fall off. The three legs are rarely of the same length, as the moment’s influences make on concern prevail over the others. Today is no exception.
The genesis of this platitudinous twit is the anticipated religious Executive Order, feared to destroy everything from gay rights to the ozone layer. As it has yet to be released, the fears might be a bit overblown. It even has its own hashtag, #LicenseToDiscriminate, so that people prone to anticipatory freaking out have a place to call home.
The “leaked” information suggests that the EO will be fairly modest.
More importantly, an Executive Order doesn’t override statutory law or the Constitution. And, as some have noticed, the First Amendment already provides for the free exercise of religion. This was a big thing to the ACLU a few weeks ago, when they were reminding the president of his own words, “Muslim ban.” Today, however, not so much.
Religion is disfavored, except when it’s useful. A bunch of voodoo, otherwise, used to undermine hard-fought rights like abortion and gay marriage. In anticipation of the worst, the ACLU picked its side. Religion didn’t win.
It isn’t that they lack a basis for their argument, as the Equal Protection Clause is in the Constitution as well. The problem arises when rights conflict. Even though some proffer simplistic platitudes for easy consumption for the unduly passionate, this presents a very difficult, maybe even unsolvable, conflict.
As it turns out, the ACLU’s position favors the same nice folks who donated a whopping $85 million to its coffers. Whether this is pandering to the feelz of social justice warriors or its own internal conflicts isn’t clear. As the two align, it’s unlikely that the choice was a hard one to make. And anyway, a girl’s gotta eat.*
But the principles involved are vexing, despite the ACLU’s twit, which is itself reminiscent of the “hate speech isn’t free speech” platitude that has made the young people of a nation stupider. On the one hand, the Constitution is a constraint on government’s infringement of rights, not on the individual’s right to be as religious or discriminatory as he wants to be.
On the other hand, we’ve long had laws that prohibit discrimination by private actors in employment, education, housing and accommodations. And for the most part, this has been fully accepted by the public and upheld by the courts. You can’t discriminate on the basis of race in employment. This isn’t controversial.
While the fears expressed by the ACLU and the hashtag gang might be overblown if not largely irrelevant this time, the choice made in anticipation of the worst puts the problem squarely on the table. There are sincere beliefs of a bona fide** religion that things such as abortion and gay marriage are unacceptable. They may seem ridiculous to some, but we don’t get to pass judgment on the merits of another person’s religious beliefs. The nature of religion is that it’s a matter of faith, not reason.
So how can one reconcile constitutional rights that are in such untenable conflict? While the ACLU has 85 million reasons to take the side it has chosen, there is no principled basis to treat religion as a secondary right, a lesser right than equal protection. There is also no principled reason to do the opposite.
There is, of course, the bastardized Herzberg theory of constitutional rights, but the free exercise of religion doesn’t fit well into any theory that requires compromise or balance. From the perspective of one who doesn’t think it’s a big deal to bake a cake as long as the price of a cake is paid, the answer is simple. The answer is also simple from the perspective of the baker who views his cake contribution as acquiescence in a wrong against his religion. Just go get your cake from someone who is fine with it, but not him.
So do you have the right to discriminate based on your religious beliefs? Can a female sue the church to become a priest? The answers are far harder, far more intractable, than a platitudinous twit would suggest. This isn’t easy, and it’s hardly a matter of picking which side donates more money.
To the extent there may be a tie-breaker in this conundrum, it is found in the separation of church and state, the Establishment Clause, which distinguishes our secular government from any religious beliefs. You are entitled to believe as you want, to practice your beliefs as you want, but you still can’t impose the consequences of your belief on others. You can’t sacrifice babies to your God, even though you sincerely believe he will be pissed if you don’t.
But this still doesn’t really answer the question of how this plays out in specific circumstances. The point is that this is a facial conflict of rights, all valid and worthy of protection, and there is no easy or simple resolution. To suggest otherwise, as the ACLU does, is to just pick the team you prefer and tell the other team to get bent.
It’s not a matter of principle, but preference, and if that’s how the civil liberties are to be judged, then it’s just a matter of who pays the most or which is favored at any given moment. That’s no way to protect and defend the Constitution, and we’re doomed to fall off the stool.
*Yes, of course.
**The idea that it’s left to the government to determine whether a religion is bona fide is, in itself, enormously problematic, but that’s beyond the scope of this post.
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Since May the Fourth be with us, you have to accept Jedi as a bona fide religion.
And boom, my hope of escaping anyone saying that to me today dashed before nine.
Gone is the swell of admiration resulting from your recent mention of the tragedy of dearth plageious the wise.
It’s not the sort of story a Jedi would tell you, you know.
So what should the ACLU have done?
First, nothing until there was something real on the table.
Second, acknowledge the complexity of the issue and the conflicting rights rather than pronounce its side as if that’s THE LAW.
Third, when there is a conflict between constitutional rights, and an organization claims as its mission the protection of civil liberties, there are times when it has no business picking one right over another. When that happens, it should explain and bow out of the fight. The ACLU has absolutely no business preferring one constitutional right over another because that’s just how it feelz.
Dear Papa SHG,
Now if only you had 86 million dollars to give, maybe the ACLU would listen to you.
I might if you kicked in. Not all, maybe. Just a few mill. Button’s on the right.
You don’t have a right to discriminate against others based on those beliefs
Oh, well if they say so. I know that complexity doesn’t bring in the moolah, but we don’t don’t force priests to marry non-Christians or force Jews to rent their facilities to non-kosher events. It’s as if the ACLU lawyers would argue against my right to deny anyone that’s a member of the ACLU from renting my apartment (theirs isn’t a religion I choose to affiliate with anymore).
Lost in the issue of banning discrimination is what type of discriminatory practices we hold as acceptable and why we have said some forms of discrimination need to go. What is the reason that the government should be requiring a baker or photographer or calligrapher to design cakes or photos or invitations, for activities that they claim violate their conscience, when other options are readily available?
Has it become taboo to ask the question? Or is asking about one leg of the stool different from asking about the others?
All good points. Is there a principled way to differentiate the acceptable from the unacceptable? Or, as the ACLU asserts, is it all unacceptable, and thus the free exercise clause is nullified in the interests of the equal protection clause?
I think you hit on the best way to start, which is to discuss the complexity.
I’ll take your example: we’ve long had laws that prohibit discrimination by private actors in employment, education, housing and accommodations.
Why did the Civil Rights acts come into being? After the 13th amendment, and a very strong wave of black codes, it was argued (and eventually received the judicial nod) that the “badges and incidents of slavery” gave rise to the need for forbidding discrimination in certain public and quasi-public locations.
Not to get too wonky, but there was an enabling power for the Federal Gov’t to get involved in the economic liberty of free people for a damn good reason. Slavery was a system that removed that economic liberty.
Does the same rationale hold true for forcing Hobby Lobby to carry Jewish items around the holidays? To make sure that a pharmacy caries Plan B?
If the reason you come up with is another way of saying “you shouldn’t be able to tell me what I think is wrong”, we need to acknowledge that we are reducing the size of the freedom leg of the stool for diminishing returns.
Let’s bring this to a more concrete example. Can they force Hobby Lobby to build a ramp to its front door to provide accommodation to someone in a wheel chair? Is it not up to Hobby Lobby how they choose to design their store, spend their money, accommodate as a customer?
I’ve never known you to believe in non-enumerated rights, but assuming you believe in a right to liberty and contract, it might pose a genuine conflict. Certainly more so for the Federal Government to do as they have limited powers in this realm.
At least the civil rights acts had clause two of the 13th amendment to back them up. How twisted do we need to get to make an ADA compliant ramp part of the commerce clause?
I’d go for a concrete example of smoking peyote at religious rites, but we know how that one turned out.
That’s unfair to say I don’t believe in non-enumerated rights. I don’t believe in unicorns, but faeries are delightful.
To a large measure, much of this is best understood in the context of societal norms. The dominant belief back then was in a living Constitution, and there was broad public support for expanding constitutional interpretations by emanations and penumbras to establish rights that pushed the envelope a little farther each time.
What we didn’t concern ourselves with was the logical extremes and collateral consequences, mostly because no one saw what was coming or, if they did, wanted to deal with the problems of gay marriage, transgender rights, etc. In a vacuum, much of this is a reasonably acceptable burden, even if it doesn’t sit on a principled foundation. We wanted it this way, and so we got it. Now we’re dealing with the hangover.
The dominant belief back then was in a living Constitution
A limitation to having a rational and constructive discussion in this area is that by “living Constitution”, I find most people mean a “common sense reading of the Constitution that incorporates what I know it needs to mean today”. To be fair1, I’m not sure I understand how you’re using the term “Living Constitution”.
Since we are a bit far afield of the original point of the post, I’ll limit my comments here, but it’s possible to have a measurable degree of fidelity to the structure of the Constitution and adapt it to the needs of your day. That’s a valid and logically consistent way to see the Constitution as a “living” document. But when you break free of the bonds for whatever ends you wish to accomplish, your “broad public support” is merely a rationalization that will come back to bite you in the ass. The document was never meant to establish what rights are. It was meant to curb powers from being used against your freedom and exercise of rights2.
There’s nothing preventing you from moving to a place that also considers your “reasonably acceptable burden” to be something worthy of note. Maybe there’s some validity in a structure that created laboratories of democracy after all. But that’s a conversation for another day.
Somehow society seems to have lost the ability to understand what the plot was supposed to be in how this conversation is supposed to unfold.
1. That’s unfair to say I don’t believe in non-enumerated rights.
If you are going to adding a requirement that fairness be taken into account, you should add this to the general blog rules.
2. See amendments 9 and 10
” Can a female sue the church to become a priest? The answers are far harder, far more intractable, than a platitudinous twit would suggest. ”
That one is very easily answered by a twit:
No. Hosanna–Tabor Evangelical V. E.E.O.C. 132 S.Ct. 694 707 (2012). A unanimous decision argued by my Con Law II professor.
This post is full of similar poor analysis – under current law, this isn’t a question of constitutional rights outside of the well settled ministerial exception. The Civil Rights Act of 1964 and similar anti-discrimination laws are neutral laws of general applicability and thus don’t violate the free exercise clause under Smith. This is going to come down to RFRA or a state version of it, so it’s all statutory with a codified balancing test that has nothing to do with the establishment clause.
This is the problem with willful blindness. It has “noting to do with the Establishment Clause” because if it did, the statutes would all be facially unconstitutional, and since religion has been relegated to the dustbin of rights, it’s no problem. That’s why there is a backlash. The willingness to circumvent the Establishment Clause in the name of equality doesn’t make it disappear; it just means that we’ve chosen to throw away an enumerated right because it was inconvenient.
And this isn’t any different than diminishing the right to free speech when it gets in the way of prohibiting hate speech.
As usual a thoughtful analysis of a difficult issue so many want to make simple. My one quibble is with the statement “The nature of religion is that it’s a matter of faith, not reason.” This implies faith and reason are unrelated and perhaps incompatible. For many Christians this is not the case. Hebrews 11:1 states “Now faith is the assurance of things hoped for, the conviction of things not seen.” Not to get to deep in the weeds, but words used in the original Greek convey a level of certainty that is based upon fact and reason not blind belief in something because that is what you want to believe. Is there a level of uncertainty when it comes to faith? Sure. At least there should be. William James may have put it best when he said: “Faith means belief in something concerning which doubt is theoretically possible.” Tying this back to your point, I think many find it easy to disregard religion when it comes to constitutional dilemmas because it is viewed as anti-intellectual or worse.
This isn’t a battle worth fighting, not just because it still goes back to faith (if you have to cite the Bible as your source, you’re not going to convince anyone disinclined to believe in the first place), but because it doesn’t matter. You are entitled to believe, to have faith, regardless of your or anyone else’s reasons.
Note that I am not a religious person. What I am is a person who believes that others are entitled to believe, and who believes that the rights protected by the Constitution matter, even when they’re out of fashion or don’t touch my life.
Fair enough. I just think those who say “faith is belief without reason” are making people stupider just like those who say “hate speech isn’t free speech. Just a quibble though. Thanks for your efforts on Simple Justice. It is a daily dose if clear thinking and common sense.
Oof. Not a good analogy, but Ima let it go. And much as I appreciate the kind words, not common sense, please.
Thanks for going easy on me. Sorry for the buzzword. Duly noted.
Constitutional right to cake.
Once the government assumes authority to tell private business owners how to conduct their business in the thousand ways it already does, why not? It’s hard to draw lines afterward.
I guess the day’s finally come where I outright disagree with you on this. I subscribed to the “clash of rights” viewpoint when I wrote “What Happened to the ACLU?”, but I don’t see it anymore. The “clash” is between the First Amendment, on the one hand, and anti-discrimination law on the other. And that’s not much of a conflict at all, even if certain passionate folks defending certain alliteratively-named transgender high-schoolers feel otherwise. The ACLU’s twit is straightforwardly, unmistakably false, as bad as something you’d expect to see from noted legal scholar George Takei.
To the extent there may be a tie-breaker in this conundrum, it is found in the separation of church and state, the Establishment Clause, which distinguishes our secular government from any religious beliefs. You are entitled to believe as you want, to practice your beliefs as you want, but you still can’t impose the consequences of your belief on others. You can’t sacrifice babies to your God, even though you sincerely believe he will be pissed if you don’t.
Poppycock! Precluding the state from ordering people to violate their religious beliefs isn’t the same thing as getting it to order people to say Hallelujah. And you know this. I’m not gonna belabor something you know better than I do, but come on. Substitute “say fighting words” for “sacrifice babies to your God” and see where it gets ya.
He’s alive? Call off SJ Seal Team 6, we found him!!!
Nice to hear you say poppycock, even though I’m not really sure what the hell you’re saying it about.
What, you haven’t heard me say it before??
To the extent there may be a tie-breaker in this conundrum, it is found in the separation of church and state, the Establishment Clause, which distinguishes our secular government from any religious beliefs. You are entitled to believe as you want, to practice your beliefs as you want, but you still can’t impose the consequences of your belief on others.
In context, I read this to suggest we “impose the consequences of [our] belief on others” when we object to anti-discrimination law for religious reasons. Which, if that were really what you were saying, is absurd. It isn’t an establishment of religion not to limit religious freedom. Thus, even if there were a constitutional “tie” to break (which there isn’t,) the Establishment Clause wouldn’t break it. And then you segue into this:
You can’t sacrifice babies to your God, even though you sincerely believe he will be pissed if you don’t.
Which is directly analogous to one of Ken White’s First Amendment censorship tropes. No, religious freedom isn’t absolute. But the fact that we may not sacrifice babies even for religious reasons is uninformative, a proposition that tells us nothing about how to resolve a case like EEOC v. Harris Funeral Homes.
I’m getting closer, but not there yet. Maybe shorter sentences, or smaller words?
🙁
Grog worship big rock. Og worship little rock. Priest of big rock say Grog not hunt with Og because Grog worship little rock. Grog say, I not hunt with you, Og! Go away! But then Og say, but chief say you must!
Grog point to ancient stone tablet at heart of cave and say, stone tablet say chief not get to say that! Grog convene clan meeting and elders agree with Grog, say we must obey stone tablet, no listen to chief’s ruling! Chief not stop Grog from not hunting with Og. Og go hunt with Zog instead.
Does Grog “impose the consequences of his belief” on Og by getting the elders to side with the tablet over the chief? And if so, should he be allowed to do so?
Goddammit, I fuck up my own caveman story? Not a banner day for me. Should be “Priest of big rock say Grog not hunt with Og because Og worship little rock.”
It’s an adorable story. Did you ever hear the tragedy of Darth Plagueis the wise?
I don’t like tragedies. They’re coarse and rough and irritating and they get everywhere.
I thought not. It’s not a story the Jedi would tell you. It’s a Sith legend. Darth Plagueis was a Dark Lord of the Sith, so powerful and so wise he could use the Force to influence the midichlorians to create life… He had such a knowledge of the dark side that he could even keep the ones he cared about from dying. The dark side of the Force is a pathway to many abilities some consider to be unnatural. He became so powerful… the only thing he was afraid of was losing his power, which eventually, of course, he did. Unfortunately, he taught his apprentice everything he knew, then his apprentice killed him in his sleep. It’s ironic he could save others from death, but not himself.
An excellent post, like so many, but I offer a reservation.
“The nature of religion is that it’s a matter of faith, not reason.”
Not so. Reason usually dictates contemporary religious belief, at least in the West. Take abortion. It is a reasoned position to value the life of the fetus over the convenience or whim of the putative mother. And when the Constitution affirms the right to life while being silent concerning any right to abortion, it is affirming a reasoned religious belief.
So you don’t believe in the dead zombie in the sky? If you say so.
Actually, it is never a reasoned position to value anything, because reason alone cannot tell you what to value; as David Hume would say, you can’t derive an ought from an is. The initial choice to value anything at all is essentially a choice of faith, since it doesn’t admit of evidence.
Consider it possible you may be oversimplifying (parodying, to be precise). The Jesus mythos gave rise to thousands of reasoned positions, appropriate to Jesus’ day as well as adapted to ours. And some unreasoned positions too. As you well know, central cultural myths function that way.
Over and out.
Nah. Your argument about aspects having reason has nothing to do with the central point of religion. And more importantly, arguing it belies the point of religion in the first place. Why try so hard to deny faith? Sure, aspects follow reason, but the core is faith, and there’s nothing wrong with that. Rather than fight it, embrace it. It’s what makes religion religion.
Party-pooper. You are,… shameless.