Republican legislators and Governor Mike Pence in Indiana have presented us with the latest incarnation of church – state relations in the United States. As they try to stand four-square behind religion, it might be good to take a look at what U.S. Constitution says about church-state relations. The First Amendment says:
“Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.”
Like any right in the Constitution, it is not absolute. Why is it not absolute? Because it can’t be. Inevitably it will collide into other rights also guaranteed in the Constitution. For example, the 14th Amendment, Section 1 states:” No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
So the obvious question arises, “What happens when my religious belief interferes with someone else’s “equal protection of the laws?” The answer requires that we follow the words of Lyndon Johnson, “Let us reason together.”
We literally have to bargain this through. Suppose the bakery in Indiana wants to refuse to sell goods to members of the LGBT community. The proprietor says that his or her religious beliefs are such that homosexuality is a sin and it is acceptable to treat members of the LGBT community with less deference and respect than others.
However, on the basis of the 14th Amendment and the civil rights public accommodations laws of the 1960s, there is a guarantee that an individual, regardless of race, national origin, etc. cannot be denied service at a public establishment. So what is of a higher value, the proprietor’s right to discriminate or the customer’s right to be served at any establishment open for business?
In this case, it is a little difficult to determine purely on a legal basis because members of the LGBT community are not considered a protected class, as is the case with a race, color, religion, gender, age, or national origin. With all the advances in rights for members of the LGBT community, there has not been the sort of legal protection for just “existing” that many other groups have.
Even though the civil rights of members of the LGBT community are not legally protected in the way that other groups are, logic leads us to conclude that their rights should be protected as with other “existence” groups.
This leads us back to the question of what is of higher value, the proprietor’s right to discriminate or the customer’s right to be served at any establishment open for business. If we side with the business owner because of his or her religion, we are left with all kinds of questions, not the least of which is “what is a religion.” What would happen if all the businesses in a particular area suddenly got “religion” and decided that it was against their religion to serve members of the LGBT community? Then we would have a situation similar to the confederate states during the era of segregation. Large numbers of individuals would be locked out of significant portions of our society. The “common good” of our citizens would be sublimated to the wills of individual business owners whose main intent would be to discriminate against an unprotected group of citizens.
Women and minorities have been discriminated against during most of this history of this nation. In the 1960s, we began to make serious progress in reducing the discrimination. In the past five years, we seem to have taken steps backwards. What is happening now in Indiana and elsewhere beckons us to renew our logic and our compassion to protect the basic interests of the common good.