The religious “right” to disobey laws

In the UK there are people trying to defend gender segregation as a religious freedom, while opponents point out what that would look like if it were racial segregation as opposed to gender segregation. In the US, in the state of Oregon, there’s an effort to get an initiative passed to give business owners a “right of conscience” to refuse gay people service. It’s all the same bullshit, people: when they want to shove you to one side, it’s because they hold you in contempt.

As worded, the referendum will present itself as a modest caveat to the gay marriage law, extending a few basic safeguards for religious freedom. In reality, this ugly, mean-spirited initiative will herald nothing less than a new era of anti-gay segregation in Oregon—and, potentially, all across America.

The notion of legally enshrining bigotry under the banner of “religious freedom” is, of course, nothing new. For decades, private organizations argued that they had a First Amendment right to discriminate against black people based on racist readings of the Bible, even after the 1964 Civil Rights Act proscribed such discrimination with no religious exemptions for private citizens. The Supreme Court slapped down these perverse claims in 1983, and since then, arguments for the religious liberty of private companies to discriminate against blacks have become keenly impolitic.

But other kinds of people that someone doesn’t like? That’s entirely different. God said so. He just forgot to write it down, that’s all.

It’s easy to tell gay couples who face such discrimination to just take their business elsewhere, as former Obama speechwriter Jon Lovett did recently. But that ignores the two broader problems of the “religious liberty” defense. The first is a purely legal one: There is simply no constitutional right for a private business to discriminate against gays. In a landmark case, the Supreme Court ruled that an individual can’t invoke his religious beliefs to dodge an otherwise valid law. Writing for the court, Justice Antonin Scalia scoffed at the notion of “a private right to ignore generally applicable laws”—think basic anti-discrimination ordinances—labeling the idea “a constitutional anomaly.” And in a now-famous passage, the justice noted that “conscientious scruples have not … relieved the individual from obedience to a general law not aimed at the promotion or restriction of religious beliefs.” Hatred of gay people is surely a “conscientious scruple” that Scalia himself shares. But it doesn’t excuse a private citizen at a private business from following fundamental anti-discrimination laws.

Well yes, but unfortunately, what Mark Joseph Stern leaves out there is that the decision in that landmark case he highlights with a link pissed off nearly everyone in this godbothering country, and Congress tried to override it in 1993 with the Religious Freedom Restoration Act, which passed by a unanimous House and a Senate only three votes shy of unanimous. But then it was held unconstitutional as applied to the states in 1997, though it still applied at the federal level…and many states have passed state Religious Freedom Restoration Acts.

God defend our precious freedom to treat other people as contaminants. Amen.



  1. A Masked Avenger says

    I agree with everything in your post.

    Your title, though, suggests the premise that laws should be obeyed unconditionally. I’m assuming you don’t actually think that, especially since the civil rights movement rests in part on civil disobedience. A coherent morality entails the notion of an “unjust law,” and I’d say also an obligation to disobey unjust laws.

    Probably an unnecessary nit to pick, since nobody here would (as far as I know) disagree.

  2. Pteryxx says

    Not just Oregon:

    Rep. Lynn Luker outlined a proposal Tuesday backed by his conservative Christian allies to shield religious people from the threat of losing their professional licenses for refusing service or employment to anyone they conclude violates their religious beliefs.

    “This is pre-emptive,” said Luker, a Boise Republican. “The issue is coming, whether it’s 10 years, or 15 years, or two years.”

    Idaho requires professional licenses for doctors, nurses, pharmacists, attorneys, social workers, firefighters, police officers, real estate agents, and insurance providers.

    …what does *firefighters* refusing service look like? O_o

    Social workers? Insurance providers? And real estate agents? Haven’t we been down this road before?

  3. A Masked Avenger says

    Well, all of those jobs ARE licensed, yes. So that would seem to be the implication.

    They could still be fired for failing to obey their managers or policies, but in a backward area it’s easy enough to imagine a departmental policy of not responding to calls from furriners or other undesirables.

  4. RJW says

    So, as an atheist I have the right to discriminate against believers since many religious practices are morally repugnant to me. Why do those demented believers think that religious freedom is absolute?


    “… especially since the civil rights movement rests in part on civil disobedience”

    No, the title doesn’t, the principle is that laws apply to all citizens, we can’t cherry-pick, the Civil rights movement was undertaken to change the laws for everyone, in fact to abolish discriminatory privilege. Whether or not any person chooses civil disobedience to change state or federal law is clearly distinct from claiming special rights under the law.

  5. Randomfactor says

    I think a good way to fight this would be to propose an amendment which would append the words “or blacks” to every exemption shown.

    Why should the anti-GAY bigots have all the fun?

  6. Johnny Vector says

    Here’s the bill:

    Here’s the part particularly relating to emergency services:

    Declining to provide or participate in providing any service that violates the person’s sincerely held religious beliefs or exercise of religion except where performing emergency response duties for public safety.

    So, “public safety” may be a term of art that I’m not familiar with, but to me that looks like a sleazy way of trying to make it look good while still allowing you to let ’em die. So, if you’re a firefighter you can’t refuse to put out the fire (cause it’s public safety), but if I come into the ER with chest pains, there’s nothing public about that. So you’re totally within your rights then to refuse service.

    What is wrong with people?

  7. Johnny Vector says

    Sorry, my above comment is linking to the Idaho bill that Pterryx posted. Just pretend I commented on the next post. So many bigots, so hard to keep them straight.

  8. Dunc says

    There’s another small problem with this… As far as I know, gay people aren’t usually labelled. So actually, this would give businesses the right to discriminate against people they think are gay… Anybody want to bet that certain establishments might use this as cover for other forms of discrimination? “Oh no, I didn’t refuse him service because he’s black, he just looks kinda gay to me.”

    As for civil disobedience, the whole point there is to break the law, not to claim that you have a special magic get-out-of-jail-free card, much less to have that enshrined in law.

  9. Decker says

    “As far as I know, gay people aren’t usually labelled. So actually, this would give businesses the right to discriminate against people they think are gay…”

    Yes exactly.

    And it would be absolutely delicious if that were to happen to someone supporting the legislation!

  10. Pteryxx says

    “As far as I know, gay people aren’t usually labelled. So actually, this would give businesses the right to discriminate against people they think are gay…”

    And then the person discriminated against has to prove, in court, that they are not actually gay, bi, trans*, atheist, a lesbian, or a slut? How well is that going to go, when the discriminating defendant gets to unleash their lawyers to produce any and all evidence that they really *did* target someone their religion says is fair game?

  11. K. says

    Dunc – That is exactly what I was thinking… any two persons of the same sex may be thrown out… if my mother and my aunt travel together, and the owner thinks they are a 75 years old lesbian couple, they won’t be able to rent a room? And next, they won’t rent rooms to hetero couples unless they show their marraige certificate?

  12. K. says

    Re #1: Civil disobedience is about extending rights and equality, not about restricting the rights of others.
    Religoius rights do not take precedence over general human rights.

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