Religious Freedom in the Public Sphere

There are people in the world who have sincere religious objections to taking their clothes off in public places while total strangers stuff money in their underwear. These people should not become strippers.

There are other people who have a sincere and constitutionally protected right not to engage in usury, or the lending of money at interest. These people should not own banks.

And I personally know a number of people who object, on perfectly valid religious grounds, to killing or causing the death of animals. I would be the first one to tell any one of them not to get a job in a meat packing plant.

As long as the people above follow my advice, and don’t pursue occupations that inherently require them to violate their own religious principles, then they can safely exercise their religious beliefs according to the dictates of their own conscience. But, if somebody with a strong religious objection to public nudity decides to pursue a career as a stripper, they will have to choose between their beliefs and their profession. And it will not be a “free exercise of religion” issue.

It works pretty much the same with owning or working in a business that caters to the public — even in Arizona. Since the Civil Rights Act of 1964, business owners have not been free to discriminate against people they don’t like. Many people in America remember the protests at lunch counters and hotels. For the rest of us, there is Wikipedia.

There are certainly some in America who say that any business ought to be able to serve, or not serve, anybody for any reason whatsoever. Whatever the merits of this position may be, it is not the country that we happen to live in. In post-Civil Rights Era America, businesses that cater to the public do not get to define “the public.” They can deny service for certain behaviors, or even for states of dress (“no shoes, no shirt, no service”).

But, they cannot hang out a sign that says “X not welcome here,” and it really doesn’t matter what X is: Jews, Mormons, fat people, Dallas Cowboy Fans, or people who happen to be gay.

The recent attempts in Kansas and Arizona to change this are based on a definition of “religious freedom” that has never actually existed in the United States. According to the logic of these bills’ supporters, people should not have to do things as part of their profession that offend their sincere or deeply held religious beliefs.

Whatever these bills may mean in theory, in practice, they are aimed at insulating people of certain religious persuasions against being forced to participate in gay marriages. The argument goes something like this: if someone belongs to a religion that forbids gay marriage and believes it to be immoral, that person should be forced to support a gay marriage through their labor or with a business that they own. There are two huge problems with this theory.

In the first place, a wedding is not the same thing as a marriage. A marriage is a contract certified by the state. A wedding is a big party with cake and photographers. A moral objection to the way that the state certifies a contract should not be confused with a moral objection to baking a cake for a party. Unless one has a sincere and deeply held belief that gay people should not be allowed to eat cake, then there can be no rational religious objection to baking one for a gay wedding, whatever one’s feelings about gay marriage may be.

I have a difficult time believing that there are many people in Arizona, or anywhere else, who have a legitimate religious objection (as opposed to a vaguely religious discomfort) to providing goods and services to gay people — for a wedding or anything else. But even if there are legions of such people — all part of a denomination whose ancient and foundational scriptures forbid its members from providing baked goods to those unworthy in the sight of God — it does not then follow that a member of this religion should be excused from following non-discrimination laws.

If somebody’s religion prohibits them from providing goods and services to some segment of the public, then they should not go into the business of providing things to the public. The First Amendment’s Free Exercise Clause will protect them absolutely in their choice of a career that does not require them to do something that violates their religious principles.

If such a person chooses to go into business serving the public anyway, then they are obligated to serve the public — even that portion of the public that may make them uncomfortable. It does not matter that the discomfort has a religious basis.

One must decide not to be a stripper before one starts swinging on the pole.