Religious liberty bill upholds constitutional right

Senate Bill 180 would not overturn local human-rights ordinances. It would not open the door to refusing service to adulterers, the divorced, the rich, whatever. A business can do that now.

These are not classes of people protected by human rights law. Furthermore most adulterers do not ask or require vendors to participate in their celebration of adultery. The bill seeks to establish a middle ground that secures both the market rights of all protected classes of citizens and the right of all to be free from religious coercion.

Columnist Tom Eblen makes a long, casinos proponents’ argument that has nothing to do with discovering truth, defining ethics, securing liberty or defending constitutionalism, that the court ruling for same-sex marriage is good for business.

The problem, says Eblen, is not people like him who deny the wisdom of all societies throughout all time that understands heterosexual marriage as a necessary foundation for civilization. Rather it is ignorant Christian fundamentalists who insist on an American theocracy and who allow themselves to be suckered and pandered to by Republican politicians.

This is, he says, the fundamental problem, fundamentalists seeking to defy the constitutional separation of church and state. But the Constitution does not require and cannot require such a separation, as defined by Eblen, without denying all common values that underlie a community.

The Constitution actually requires the free exercise of religion inside and outside church walls. But Eblen says “Your freedom of religion stops at the point you try to force your beliefs on others.” Ironically that is exactly what Eblen is insisting on for his values, his religion. Everyone else will adopt his ethics under penalty of law.

Contrary to his definition of separation of church and state, all law is the community at large enforcing someone’s morality (religion), regardless of who believes in that code.

Protecting the free exercise as much as possible is as old as the First Amendment. Congress, by a near-unanimous vote, passed in 1993 the Religious Freedom Restoration Act. It had been supported by the ACLU, the Christian right, Sen. Ted Kennedy, President Bill Clinton and Barack Obama, then a state senator in Illinois.

The law declared that the government could not “substantially burden a person’s exercise of religion” and a court would have to use “strict scrutiny” in determining on a case-by-case basis whether all had been done to respect and not restrict religious liberty. States began adopting similar statutes. In all instances no one was guaranteed a get-around-non-discrimination-law-card, only the opportunity to make a case for exemption.

The Supreme Court, in a 2013 decision overturning federal law denying marriage benefits t ogay couples married under state law, based its decision on the states having the exclusive right under the Constitution to regulate domestic institutions. But lower federal courts went in the opposite direction, telling citizens of states what the new definition of marriage must be, greatly undermining elemental understandings of constitutional federalism.

Then the Supreme Court ruled that the states had no such exclusive right.

For many Christian Americans, the same-sex marriage decision was not the rule of law, but tyranny. Justice Antonin Scalia made this point in his dissent, saying that the ruling was “lacking even a thin veneer of law. It was a “naked judicial claim to legislative power — indeed super-legislative power; a claim fundamentally at odds with our system of government.”

The other three dissenters (none of whom are ignorant, theocracy-craving, fundamentalists) agreed.

Abraham Lincoln, when referring to an earlier abuse of judicial power, the Dred Scott decision, said “If the policy of the government upon vital questions affecting the whole people is to be irreversibly fixed by the decisions of the Supreme Court … the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal.”

There is, as New York Times columnist David Brooks writes, no virtue or truth here, only absolutism.

This story was originally published April 1, 2016 at 9:05 PM with the headline "Religious liberty bill upholds constitutional right."