Protecting First Amendment Rights

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

— First Amendment to the Constitution

I must admit that I am somewhat baffled by the string of new laws passed by various state legislatures pretending to protect religious beliefs as they pertain to same-sex marriage and to the LGBT community. Rightfully, several governors vetoed the work done in their legislatures, but others did not and signed them into law.  Taking it one step further, Tennessee passed a law making the Bible the official state book. (As of this writing, it is unclear whether the governor will veto or sign the bill.) In most, if not all, of these cases, legislators claim that religion is under attack.  In fact, they really mean that in their view, conservative Christianity is under attack.  If they felt that “religion” was under attack they would decry Mr. Donald Trump’s and Senator Ted Cruz’s (R-Texas) proposals to ban all Muslims from entering the United States and to spy on those already here.  That is certainly a threat to Muslims practicing their religion.

So why do they feel that way?  The short answer is that I cannot pretend to know what is in their hearts. I will say this, however. I am a practicing Catholic with close ties to my local parish and in no way do I feel that my religion or my ability to practice it is in any kind of danger.  And Catholics know something about being discriminated against for their religion. Without going into a lengthy history lesson, let me remind you that Catholics in most of the original thirteen colonies were widely discriminated against, especially in matters of property, voting or holding office.  Even after the Revolution many of them had prohibitions against Catholics holding office, or requirements for them to denounce their religion before they could hold office. Other religions were equally mistreated.  With the ratification of the Constitution in 1789, freedom of religion as provided in the First Amendment became the law of the land, but it did not preclude suspicion and  intolerance of Catholics which carried into the Twentieth Century and included anti-Catholic criminal acts by the Ku Klux Klan. Some of that sentiment was a carry over from the Reformation.  Much of it centered on immigrants, especially from Germany and Ireland.  Other manifestations centered on a belief that American Catholics, if given a chance, would turn the country over to the Pope in Rome.  In my lifetime I remember the anti-Catholic sentiment directed at John F. Kennedy as he ran for president leading him to make a major speech that certified his loyalty to the United States rather than to the Pope.  There is more, but you get the idea.

So, yeah, I will say it again, I know a little something about “attacks on religion” and I most definitely do not feel that I am under attack.

I do feel that the separation of church and state ratified in the Constitution is under attack. State legislators, and those that support them, seem to feel that the government is forcing them to do something evil by treating LGBT folks as they themselves would want to be treated.  I will say up front, again, that I do not know what is in their hearts or the sincerity of their beliefs, I just fail to see the logic behind the idea that if one serves a same-sex couple a cake that one will then burn in hell. Just like I am not a Constitutional scholar, I am also not a theologian, but I have read the Bible (cover to cover — not bragging, just saying most people I know only read excerpts of it) and I do not see anything about serving cakes to same-sex couples.  I also do not understand the belief that by doing so, one condones the same-sex marriage.  By serving divorced people does one condone divorce?  By serving atheists does one condone atheism?  Of course not, especially since there is nothing to condone, condemn or otherwise get one’s knickers in a knot over.  It’s nobody’s business.

Some argue that the real issue is “protecting” young girls from predatory men in bathrooms. Thus the laws state that one must use the bathrooms designated for use based on one’s birth sex. Besides wondering how that will be enforced, because there is no use in passing a law if it will not be enforced (bathroom police?  which gives a whole new meaning to “drop ’em mister”), I see that issue as a smoke screen to hide much more ominous provisions of those laws that can lead directly to unabashed discrimination under the claim of religious freedom.

The heart of the First Amendment regarding religion is the Establishment Clause.  As interpreted and accepted as law, it is not only the idea that the government cannot establish an official religion, but also that it cannot pass any law that favors one religion over another and cannot pass laws that favor religion over non-religion or vice versa.  In that context, laws created ostensibly to allow religious tolerance can easily become religious intolerance laws as they push the tenets of one religion over others.

I also do not buy the “slippery slope” arguments used by some.  Serving cake to a same-sex couple is not going to result in the eventuality of the government forcing clergy to marry everyone or anyone in their community.  We will have much bigger problems to contend with prior to reaching that point.  It isn’t going to happen.

It seems that in the context of civility and mutual respect that we could survive in a “live and let live” world without having to pass laws over who does or does not get served based on one’s personal religious beliefs. Discrimination is discrimination, however one tries to justify it.

Same-sex marriage is now a reality in the United States and other countries.  With the Supreme Court decision in 2015 in the case of Obergefell v. Hodges, same-sex marriages receive equal protection under the law. One may agree or disagree with the decision, but it is what it is and efforts to circumvent the decision by using state laws under the cover of religious tolerance is in my view an abuse of power, and I suspect, will also be shown to be un-constitutional.

I try to understand the real motivation behind such laws.  I am sure there are many that are truly concerned from a religious stand point.  (Which of course assumes that LGBT people are not religious, which is no more true than that all straight people are religious.)  More probably, I think that some of the legislators are really trying to score political points with their constituents.  By that I do not mean that they have listened to the religious concerns of those constituents.  I think instead they are really reacting to what they consider an “out of control” federal government and Supreme Court. They are really trying to show that they will not “tolerate” directions from a “godless” Obama administration.  And they have succeeded — they are ably demonstrating just how intolerant they are.

Sincere, But Just Plain Wrong

Rowan County (Kentucky) Clerk Kim Davis remains in jail over her contempt of court citation for refusing to issue marriage licenses in her county.  She refuses because she does not want to issue them for same-sex marriages.  Doing so, she believes, would violate her Christian convictions. However one views the issue of same-sex marriage, we should respect Ms. Davis and her willingness to go to jail for what she believes.  Likewise, regardless of how we view same-sex marriages, we should be very concerned about the way her case is being used by politicians shouting about separation of church and state and stating that she is being denied her rights and that she is being persecuted for her religious beliefs. Shame on them.  She is absolutely not being persecuted for her religious beliefs and it shows that those politicians (I’m looking at you Mike Huckabee, Ted Cruz and others) are either using her for blatant political reasons, or are shamefully unaware of the Constitution they say they support, and indeed would be obligated to follow should they win the election.

If Ms. Davis has true religious beliefs that prohibit her from fulfilling her duties (and I have no doubt that she is sincere), then as an elected official sworn to uphold the law, she should resign.  End of discussion.  She has exhausted her ability within the law to keep from issuing the licenses that it is her duty to do.  Protest all she likes.  Work to change the law.  Carry out her privileges as a citizen, but do so as a private citizen, not a sworn official of the county.  Tellingly, the United States Supreme Court chose not to hear her appeal.  They did so without comment, which means  that none of the nine Justices thought that she had any legal ground to stand on — including those Justices that voted against allowing same-sex marriages under the Constitution.  Game over.

The deputies to the County Clerk began issuing licenses last week after Ms. Davis went to jail for contempt of court for refusing to follow the law and the instructions of the judge.  It is undetermined how long she will stay in jail, but she could be out today if she would either agree to carry out the duties she swore to uphold, or resign.  If one takes her logic to its end, then we would ultimately be a nation without laws.  She claims that she answers to a higher power and therefore does not have to follow the law of the land as it is superseded by her religious convictions.  It takes very little imagination to think what would happen should everyone of every conceivable religion take the same position.  Our country would fall into chaos.

As a reminder, the First Amendment was written to keep the state (in this case Ms. Davis, I’m sorry to inform you that the state is you) from imposing a particular religion or religious belief on any citizen. It was a reaction to the British crown imposing the Church of England on its citizens in the original thirteen colonies.  By the early 1700’s in those colonies, for example, there was no recognized Catholic parish or church.  They did not re-appear until 1789 (the ratification of the Constitution).  Here is what the amendment says:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

No one is keeping her from exercising her religious beliefs.  They are only keeping her from imposing her religion on others.  This is a huge difference.  Those that argue that freedom of religion is being inhibited by our government should visit China, Iran, North Korea or a dozen other countries to find out what it really means to lose one’s ability to practice their religion.

Statements such as this one from Senator Ted Cruz (R-Texas) — posted on his campaign website — show that Ms. Davis’ situation is being deliberately distorted, or else Senator Cruz really did not learn much from his Ivy League law school and time as clerk to Chief Justice Rehnquist on the Supreme Court.

Today, judicial lawlessness crossed into judicial tyranny. Today, for the first time ever, the government arrested a Christian woman for living according to her faith. This is wrong. This is not America.

I stand with Kim Davis. Unequivocally. I stand with every American that the Obama Administration is trying to force to choose between honoring his or her faith or complying with a lawless court opinion.

Using words like “tyranny” and arresting a “Christian woman” for her faith may be red meat to his ardent supporters, but they do little to promote either the rule of law or religious freedom (oh by the way Senator,  there may be other devout followers of one God who are not Christian).  What is he saying? That we should do away with the Supreme Court?  That no one has to follow their decisions if one doesn’t agree with them?  What is he really saying?  And he will “support and defend the Constitution” by telling people to ignore it?  If he, and others, have a strong view that laws need to be changed, then use the system to change them.

Mike Huckabee — the former governor of Arkansas and running for president — said yesterday that one only has to follow the court’s orders if “it’s right.”  Who decides if it is right?  Mr. Huckabee?  Kim Davis? Me?  While I understand his concerns and those of others about defending the right to freedom of religion in our country, I have to say that as an individual, I do not feel threatened in the practice of my religion.  We truly need watch dogs that continually challenge the government on issues fundamental to our freedoms and our way of life.  But touting anarchy and setting themselves up as the sole judge of what is right and wrong — as Mr. Huckabee, Senator Cruz, and others do — seems to me to be a greater threat to my freedoms than anything the Supreme Court has done.

Ms. Davis may be sincere, but she is just plain wrong. She should resign and then she may protest and work to change the law in any legal way that she can.  I, for one, will work against the demagogues that set themselves up as arbiters of what is right and wrong for the rest of us based on their personal beliefs — or based on what their political ambitions tell them will “sell”.  That to me is a far greater danger.