Freedom of Religion

J. Robert Torsella

J. Robert Torsella responds to editorials in The D.

Editor’s Note: This article is a response to an editorial that appeared in The Daily Dartmouth on March 29, entitled, “Jesus, take the Veto.” The views elaborated herein are those of the writer and do not necessarily represent the views of The Review or its editorial board.

It is hard to overstate the impact of recent supreme court jurisprudence on same-sex marriage. In a whirlwind of landmark cases from 2013-2015, the court declared the Defense of Marriage Act unconstitutional, struck down California’s referendum on marriage, and declared marriage to be essential to the dignity of every person.

A reasonable person might have expected the debate to simmer down and die after these rulings. But the culture war has only intensified, reaching new levels in the past few weeks – religious liberty is the new cultural battlefield.

In Georgia, Gov. Nathan Deal vetoed a religious liberty bill. In Mississippi, Gov. Phil Bryant signed a similar bill. Both bills were intended to protect religious organizations from being forced to cooperate with something they find immoral. This met with such frantic headlines as “Mississippi Governor Signs Law Allowing Service Denial to Gays” and “Mississippi Governor Signs LGBTQ Segregation Bill into Law.”

The Dartmouth has had its fair share of such responses. In a March 29 Op-Ed for The Dartmouth, Emily Albrecht argued against expanded religious liberty laws. She argued, in part, that they would “make Christian beliefs paramount to the right to equal opportunity.”

I disagree. I hold that these laws can and ought to be passed and defended. It is only through the protection of religious liberty in this country that we may respect the differences among us. Progressives raise honest, if overblown, concerns. I hope that I can convince all those who agree with them of the importance of these measures, and of religious liberty in general.

In her editorial, Ms. Albrecht accused the Georgia bill of being discriminatory. Let me make a distinction between two types of discrimination. Discrimination based on unchosen or integral identity is abhorrent. Since 1964, this country has rightly prohibited such discrimination. Any discrimination based on racial, sexual, or religious identity ought to be viewed with disdain and banned from commercial life. Discrimination based on action, however, is fundamentally different. We discriminate based on action all the time. Loud and unruly patrons are kicked out of movie theaters. Inappropriate teachers are fired from their schools. Even when such action is connected to identity – such as when a white person shouts white supremacist slogans in a supermarket – this action is a legitimate reason for discrimination.

So, using this distinction, let’s examine two cases that have come up in the aftermath of the legalization of same-sex marriage.

The first concerns Mark Zmuda, the Vice Principal of a Catholic school in Seattle. In 2013, he married his partner, with whom he was engaged in a same-sex relationship. He was fired from the school shortly thereafter. He sued the school and the Archdiocese, and later settled for an undisclosed amount.

Ms. Albrech argues that “freedom of choice means the freedom to choose for ourselves ­ not for others”. Ought this choice to be prohibited? Is this a case of inappropriate discrimination? No, clearly not.

On the face of it, this is clearly a case of action-based discrimination. Mr. Zmuda was let go only after he chose to get married. As distasteful as one may find such a decision, it ought to be within the rights of the religious institution.

Furthermore, control over the faculty of a school is necessary for the survival of religious education. Catholic doctrine rejects same-sex marriages, and part of the role of a religious school is to impart the teachings of the denomination with which it is associated. Marriage, furthermore, is a public act. A teacher’s sexual orientation should not and does not matter, so long as it does not interfere with his willingness to teach students in accordance with the mission of the school. But a school ought to be able to fire a teacher who takes a public action, such as a same-sex marriage, that goes against what the school is bound to teach students.

This is not discrimination based on identity – a religious school is entirely unjustified in firing someone for being gay. It is discrimination based on action – an action that the school justifiably argues makes a teacher incapable of teaching the whole doctrine of the church.

Ms. Albrecht seems to argue that employers should not be able to choose who to hire and fire based on their marital status. Even if we accept Ms. Albrecht’s implicit claim that such a status is a part of sexual identity, this firing is justified. We don’t force Jewish schools to hire Christian teachers. We don’t stop Islamic schools from firing teachers who convert to another religion. The public decisions of an employee are the concern of a religious institution, especially when such an employee is in the position of teaching the faith.

The second case involves Melissa and Aaron Klein, two bakers in Oregon. In 2013, they were asked to bake a cake for a same-sex wedding. After they refused and cited religious objections, they were forced to pay $135,000 in damages by the Labor Bureau for discrimination on the basis of sexual orientation.

Ms. Albrecht argues that “As members of a free society, we should all have equal opportunity and access to the fruits of that society.” To apply this principle here would be equivalent to forcing speech.

What’s important is that the bakers did not discriminate against the couple – they refused to participate in the wedding service. Wedding cake baking is inherently personal – it is customized by event and customer – and is not a public utility. To knowingly bake a cake for a same-sex service is, to many religious people, equivalent to participation in a service that goes against their deeply held beliefs about the nature of marriage.

The action/identity distinction holds here again. Should the bakers have refused service to an individual because they were gay, they would be in the wrong. But refusing to participate in a same-sex service is and ought to be within the right of every American – regardless of the cultural consensus.

So, clearly, religious liberty laws are needed to protect the rights of religious people in business and religious institutions in general. But I’m more concerned about what this whole debate portends for our country.

Same-sex marriage has won the day. The left has won the narrative war. It has won the political war. It has won the legal war. What more is there to do? Impose these terms by force on mom-and-pop shops? On Christian schools? Please. We have little to fear from a parochial school or a bakery.

Is there no room for disagreement with the dominant political narrative? Is progressivism so feeble as to be unable to withstand coexistence with other ways of seeing the world? Indeed, New York’s ban on state travel to Mississippi is farcical virtue-signaling – a public attempt to define and ostracize the “other”. Especially surrounding this issue, America has devolved into such public displays of “holier-than-thou” distancing, into patronizing Facebook posts, into mirth at the clumsy rhetoric of southern policymakers. But in this virtue signaling I sense a doubt – a creeping worry that we are, perhaps, not so much more virtuous after all. This recent hysteria is a symptom of deep ideological insecurity.

We attend one of the most prestigious educational institutions in the world. We have a unique role to play in shaping the future of this country. But with this power comes a tendency to look down upon the less educated, the “unenlightened.” We should resist this tendency. America is not defined by its Ivy League universities or its think-tanks, or even by its politicians: America is defined by its people. And we will do them a great disservice if we sneer at the pious, call different thinkers bigots, and promote the force of law to silence those with whom we disagree.

So I was disappointed to read Ms. Albrecht’s Op-Ed on this important issue. Dialogue, not coercion, is how the left won great victories on same-sex marriage over the last few years. I hope, for the good of the country, and for the freedom of religious people everywhere, that they return to this tactic.

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  • Brian

    I think the whole action/identity dichotomy breaks down with a little prodding. Just replace same-sex marriage with interracial marriage. Would the distinction still hold? Would we still allow the baker to refuse to bake a cake? I think not. Specifically religious organizations should, and as far as I’m aware, generally do have exceptions for anti-discrimination laws, but so long as we still think it’s right to prohibit people from discriminating because of identity, allowing discrimination based on actions that themselves are an important part of the identity is an unconvincing workaround.

    • domsooch

      The whole action/identity-dichotomy-break-down breaks down when you are forcing individuals and institutions to go against their conscience, under penalty of fines that destroy their livelihood, and possibly worse. It becomes an infringement of the constitutionally protected right to free exercise of religion when you force institutions and individuals to accept and take part in actions they find immoral. In the last few years the laws have shifted to favor one kind of status over another (sexual identity over religious). This has happened without the consent of the governed, and it is only now becoming apparent to many, that laws that were passed to promote equality are now being extended to enforce conformity to ever changing standards. The concept of state-protected religious freedom has benefits for all citizens regardless of their creed or lack thereof. The state basically (and rightfully) says it has no dog in the race where personal morality, philosophy and even epistemology is concerned. That is true state protected freedom, limiting its ability to ever turn into the thought policeman many wish it to become. Ceding even one inch here is a catastrophic mistake. It won’t be long before the little Social Justice Warriors of the American academia are unleashed on the world to wreak their reign of terror.

      • http://www.patheos.com/blogs/crossexamined Bob Seidensticker

        When religion comes up against laws (against polygamy, against discrimination), religion loses. In this country, the Constitution calls the shots, not the Bible.

        • piper60

          But religious people, don’t. The same passage the constitution which forbids the government from establishing government-approved faiths, prayers and religious doctrine, also forbids government interference with the free exercise of religion, as absolute a ban as the second Amendments’ “shall not be infringed”!An inconvenient limitation that government lawyers have spent a great deal of effort weaseling their way aroundin the cases of folk who claimed that illegal drugs or strip-tease dancers were “sacrements’in their ‘religion’!

          • http://www.patheos.com/blogs/crossexamined Bob Seidensticker

            The same passage the constitution which forbids the government from establishing government-approved faiths, prayers and religious doctrine, also forbids government interference with the free exercise of religion, as absolute a ban as the second Amendments’ “shall not be infringed”!

            And how did that work out for Mormon polygamy?

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  • Richard

    I used to live in the Portland area and I worked in several places on the I-5 corridor. Please explain exactly who was harmed when the bakery declined to bake a cake and exactly what harm they suffered. I fail to understand why going down the street to another bakery was not an acceptable option. The State of Oregon imposed a large fine, I do not comprehend how the people of Oregon were injured.

    • http://www.patheos.com/blogs/crossexamined Bob Seidensticker

      When someone tells an African-American customer, “We don’t serve your kind,” who was injured? I think the answers are the same.

    • piper60

      The perv’s feeling were hurt by the discovery that some people still dare to express disapproval with the universal normalization of gay-dom.

  • piper60

    The progshave never exhibite nuch interest in toleration of divergent opinions. Progressivism sabot triumphing over disagreement, not compromising with it to find a mdus vivendi!