john oliver religious freedom

Ok, so there’s some required viewing for this post. Three videos, in fact, which cover a broad range of opinions on the same topic, and do so in some slightly different ways. I’m not going to go point-by-point through any of them, but consider them a baseline for the debate I’m about to engage with.

Here’s the first:

Here’s the second, roughly speaking a response to the first one from Ted Cruz’s campaign:

(I have not personally investigated the validity of the claims of this video, but this article, while written with clear bias, seems to be fair enough in evaluating the facts of each case study from the video.)

And here’s the third:

So yes, we’re talking about homosexuality and Christianity, which is always a place where cooler heads prevail. Right?


Ok, maybe not so much. But we will try for measured consideration and fair analysis nonetheless!

These three videos seem to agree on a few basic facts, so let’s start by stating those for the record:

  1. Some people, namely right-wing Christians, have refused service to gay people.
  2. This refusal of service is not exclusive to refusal of wedding services, but when marriage is involved there is an increase in refusal of service.
  3. Most of the people who have refused service have done so on religious grounds (as opposed to simple bigotry), claiming that providing the service in question would be a moral violation of their faith.
  4. Many of these people have been sued, and though it’s possible these are the hand-picked minority of cases, there is nonetheless a pattern of the courts siding with the people to whom service was denied and against the businesses doing the denying.
  5. The issue here is identifying the point where religious freedom ends and where unlawful discrimination begins.

Let’s start by trying to define the limits of religious freedom versus religious belief, because I think that’s where we’re going to find some answers. Here’s the extreme example to illustrate the point I’m trying to make: If I’m a radical Islamic jihadist, the first amendment protects my right to believe that the infidels should die for their many sinful affronts to Allah, but the moment I actually go try to kill someone, I’m going to be arrested (at a minimum). That’s a practice which, while it may be a fervently held belief, infringes on the rights of another citizen, and therefore exceeds the protections of the first amendment.

But we’re not talking about anyone killing anyone (at least for the most part – both Cruz and Page raise the reality of severely persecuted gay people around the world, albeit for some meaningfully different reasons). The example – both hypothetical and actual – that arises several times is that of a business owner who is personally involved in the rendering of services to gay people, and especially for gay weddings. So we’re not talking about the corporate entity of, say, Chic-Fil-A not wanting to provide health insurance which covers abortifacients, but a small business where practices are a much more direct reflection of the owners, and where service is rendered on a personal level. I think that’s significant when it comes to understanding why people get so worked up about this.

BUT – and this is a big but – we’re still talking about businesses, i.e. providers of goods and services open to the general public.

In an effort to foster good-faith debate, let’s concede Senator Cruz’s point that “no one has a right to force someone else to abandon their faith and their conscience,” at least within the constraints that we’ve already established – my practice isn’t protected when it infringes upon the rights of others. I can’t make you offer burnt offerings upon the altar of almighty Zeus, and you can’t stop me from doing so as long as I’m not using your house as the offering. But now we’re back to the question: does my business have the right to refuse service to anyone who doesn’t earnestly kneel before the thunder god?

Let’s say that I own a flower shop, and in my flower shop I only do arrangements in an Olympian them. Can someone come in and demand that I make arrangements that prominently feature crucifixes? Probably not, because that’s not one of my publicly available services. They’ll have to find someone else. But what if some atheist frat guys come in because they want something for the toga party they’re throwing? Can I elect not to serve them because they’re not going to use my arrangements in a context I approve of?

This is basically the whole enchilada. Let’s go to a real-world example. There are are Christian bookstores all over the place. In fact, there’s a whole megachain of them. And the owners of those stores can rightly decide what they will and won’t sell in their store. But if I want to buy their entire stock of Bibles just to shred them, they can’t stop me, can they?

And here is where, if I may take a brief digression for a soapbox moment, I think people are confusing “personal rights” for “right to act without consequences.” See, if you come in to that book store, bring twenty Bibles up to the counter, and tell me you’re going to use them in your Satanic rights, it’s quite possible that I’ll not want to sell you those Bibles because, to me, that’s a sacred text that I have a personal interest in protecting. But that’s a faith interest – one I can’t impose upon you without consequence. So maybe I do chose to take what action I can and refuse to sell you the Bibles no matter the cost. I personally can do that, but I’m probably going to get fired. If I own the store, I’m probably going to get sued. Religious liberty has a legal limit, particularly when religious “practice” and religious judgments enter the business sphere.

A small business owner has close control over the services they offer. I’m probably not going to stay in business only offering floral arrangements crafted for the explicit use of glorifying the Greek pantheon, but if the market’s there I could do it. But determining the goods and services I’m going to make publicly available is about as much as I can do in terms of selecting my clientele. It’s the difference between having a business and doing favors for friends. And before someone tries to finesse that distinction to cover a bakery or some such thing, let’s be honest with one another: if you’re making income from it, especially if it’s a meaningful proportion of your earnings, it’s a business, it’s not six degrees of religious friendship with people. This is a business, no matter how much he pleads otherwise:

Back to the question at hand. Let’s accept that publicly available goods and services are provided by businesses, and businesses can’t pick and choose their patrons based on creed, skin color, sexuality, or anything similar. I think wrapped up in all the concern about religious liberty is the worry that religious institutions will be treated as businesses by the law. The obvious example is a church which makes its facilities available to members or relatives of members for weddings. This gets into some trickier territory, because by its nature the church is a somewhat public entity. There’s a membership, sure, but anyone can walk in during services. I’ve been at a church where there were people who attended weekly for years without becoming members.

But a church, by its definition, is a religious (and, importantly, a nonprofit) institution. It therefore operates under some guiding principles which specifically address how it interacts with the public, and some services are only available to members, or even a special subsection of members. Consider the Eastern Orthodox church. The Orthodox will not serve communion to anyone but baptized and confirmed Orthodox members because of the close sacramental and divine interaction they believe holy communion involves. And this is fine. A religious institution, or any other not-for-profit membership institution, can define its corporate beliefs, and people can choose to be part of it or not. That extends to choices to provide or not provide specific services to different individuals. Let’s also keep in mind that marriage in a religious sense is altogether different than marriage in a governmental sense, so someone asking to get married in/by a church entity might be subject to that church’s beliefs on marriage. (I say this to differentiate a practicing church from a building containing religious iconography which is owned by individuals and rented out to members of the public, as in one of the examples Senator Cruz gives.)

So where does that leave us? Well, if people are discriminated agains just for believing something different than someone else, that’s wrong no matter which way the river of discrimination flows. If people suffer consequences for acting on religious convictions that infringe on the rights of another person, they can call it “persecution,” but another name for it is living in a lawful pluralistic society. There is a difference between the religious beliefs of an individual and the obligations of a public business. And there is a difference between a public business and a religious institution.

Let’s not confuse those facts.