Friday's Thoughts: Wedding Cakes and Religious Liberty

I could probably care less about same-sex marriage, but it would be difficult. Neither the arguments for or against can arouse much passion in me. It amazes me, actually, how little I care about it. Yes, Obergefell ticks the heck out of me for the reasons outlined by the late Justice Scalia; that in a country where five of nine unelected judges alter the law to whatever fits their current “Reasoned judgment” (how often do you change your opinions) what can they not change? Legalize euthanasia? Ban the Death Penalty? Gun rights? The list is endless.

It was Mollie Hemingway who pointed out that a little under a hundred years ago we required a Constitutional Amendment to extend to women the right to vote. The Supreme Court did not search divine an implied woman’s right to vote from “penumbra of our constitution” nor did Supremes pull a rabbit proclaiming the from the hat of the Fourteenth Amendment, as succeeding courts have done in other cases (I’m looking at you, Roe v. Wade). We the People proposed, debated, and ultimately passed an amendment to the Constitution extending the vote to women from sea to shining sea.

Exactly as the Founding Fathers intended.

But “constitutional vandalism” (as Charles C.W. Cooke aptly termed Obergefell) is not what we are discussing at length today. Well, not exactly. Instead it is the “religious liberty” laws being proposed and passed by a series of Republican-run states, first in Indiana, and recently in the states of Georgia and Mississippi. The Georgia law was vetoed by Governor Nathan Deal amidst threats of boycotts by various companies, potentially tarnishing the state’s record as the most business friendly state, prompting a slew of bloggers, talk radio hosts, and pundits to proclaim Nathan Deal a new Judas, with many well-wishes concerning an alleged 30 pieces of silver they claim he received. The bill in Mississippi looks set to pass because it is in Mississippi.

I understand the impulse behind these laws. Mix the attitude of many on the left that any who hold a view that about 5 years ago was held, or at least espoused, by a majority of Americans, including the sitting President, is nothing less than a vile bigot equal to the evil men who bombed the 16th Street Baptist Church with the fascistic Cultural Revolution being promoted by some of our Future World Leaders on campuses across the country and everyone, not just the religious, have deep causes to be concerned.

But that is not just what they are doing. Instead of protecting religious freedom, the right of Christians to set up private religious schools or protect churches from pressure, they are going for a much broader “freedom of conscience,” not just churches or private schools with “morality clauses” but also bakers from having to make wedding cakes and county clerks from having to fill out marriage certificates for gay couples. In the former, one can have sympathy, and may even allot some blame on the gay rights activist who used aggressive litigation to try and make examples of certain businesses but have only succeeded in crafting martyrs. But in their aggressive counter-push many Christians are potentially playing with fire.

For one thing, there are a multitude of religious prohibitions even within Christianity. Until very recently, most Catholics and Protestants frowned upon intermarriage between the two churches and a number in both still do. There are many Christians who also frown upon marrying non-Christians. Some even say Christians are not allowed to go start a business partnered with a non-Christian. All it takes is one demagogic local official facing a tough re-election to play up “freedom of religion” and cause a cascade of problems.

And that is not the only issue here.

Ten years ago in the Great Lakes region there was a controversy when a group of Somali-American cab drivers, citing their Muslim beliefs refused to drive individuals carrying alcohol. Given how many Somali immigrants there are in cities like Detroit and St. Paul (when you’ve lived in a famine-ridden, war-torn wasteland like Somalia even the urban apocalypse of Detroit is considered a step up) and how many of them are cab drivers, this was a big issue. Many conservatives sided against the cab drivers.

What about now? Would the Muslim cab drives be entitled to protection? Now, you may say this is a public service, that this is an entirely different issue but given the right’s support for laws protecting the right of Kentucky County Clerk Kim Davis to refuse to sign marriage licenses, you can surely see the problem. Given the Right’s freakout over alleged Muslim “no-go” zones in Europe, areas where you have the lovely combination urban gang activity and radical Islam, I can’t be the only one to see the dangers.

When one looks at how far they are going with this, one wonders if this is not so much about protecting religious liberties but attempting to either at worst to cause a possible rollback of Obergefell in the only way they know or to insulate them from the ruling’s impact. Neither one is particularly good. If it is the former then they are being disingenuous, if it is the latter then what they are doing could lead to a further ghettoization of conservative Christianity in America, which would be a disaster for the faith and considering that conservative Christianity still makes up a large percentage of the United States, for the country as well.

As Abraham Lincoln said, quoting the Gospel of Mark, “A house divided against itself cannot stand.” One can imagine with little difficulty some individuals in southern states trying to start counter-boycotts against businesses that serve gays. They might be small but as we’ve seen, it only takes a small number to cause problems. They might decide if leftists can try to bully a pizzeria in Indiana out of business because they would not serve gay weddings we can bully “pro-gay” businesses, too. The result could easily be areas where it is more or less impossible to have a same-sex wedding ceremony. And given that it was carried out through the backdoor of “religious freedom” rather than out-and-out bans, the enmity of those who support gay rights towards the rest of the country would only increase. And vice versa. Our country is already rank with hyper-partisanship, assumptions that those with whom we disagree represent the lowest form of life. I’m not sure we need more.

I'm not entirely sure what the solution will be. Inevitably, it will involve some form of a compromise —by both sides. Gays will have to recognize that not everyone will be on-board with their lifestyle and evangelicals will have to recognize that for the time being same-sex marriage is here to stay. Both should recognize what I outlined above. This may mean allowing bakers to refuse or not allowing them. I'm not entirely sure but as Scalia said in his dissent to Lawrence, "The people, unlike judges, need not carry things to their logical conclusions."

A legislature can write up a law that stops at certain points; it can allow doctors to refuse abortions and pastors to refuse ceremonies but require county clerks to sign wedding certificates and Somali Muslim cab drivers to carry alcohol. That also requires a country where laws are designed to benefit the general good rather than stick it to some disliked group, something that debate, by allowing people to discuss and argue out issues and in turn see that the other side has decent people, can mitigate.

Now, given all the insanity of this one might assume it would cause our current Supreme Court to think twice before instituting rulings similar to Obergefell and Roe for all the reasons listed above. That letting the people openly debate and discuss an issue in the public lets them feel as if they had their say in the court of public opinion and they don’t feel they were “cheated” out of having their say. That knowing that all the laws they pass can be overturned at a whim by five judges creates a sense of resentment among the people that they will vent lash out towards their fellow Americans. That letting the people decide is, in the long-run, far less divisive (Remember: The Civil War occurred in the aftermath of the highly controversial Dred Scott ruling).

But I’m probably hoping for a bit much.