A comment on CAP's "Religious Liberty for Some or Religious Liberty of All"

Joshua Dorner recently published an issue brief titled Religious Liberty for Some or Religious Liberty for All. Dorner is the Communications Director at Center for American Progress.

The following is an edited critique of Religious Liberty that I sent to Dorner today:

I read your Religious Liberty issue brief this morning. While I am generally supportive of the end result, your rationale is one sided -- it ignores the free exercise rights of those who, in practicing sincerely held religious beliefs, would discriminate against someone. For them, what you call balanced is NOT balanced at all.

Contrary to your statement that "The truth is that religious liberty is not in conflict with marriage equality or with women's reproductive rights ...", the real truth is that for many Americans there is an enormous conflict. You simply ignore the conflict by failing to give ANY weight to the free exercise of religion side of the equation.

For example, if it is permissible under our laws for clergy to be exempt from performing a same-sex wedding, why can’t a baker legally refuse to bake a cake for that wedding or a photographer refuse to take photographs of the wedding -- as long as their refusals are based on sincerely held religious belief that gay marriage is immoral?

I have been struggling with issue of discrimination in the name of religion for a number of years and do not have an honest answer, nor have I heard a persuasive answer from my liberal colleagues.

The best justification that I am aware of is that people who serve the general public should serve the public without discrimination. Perhaps clergy argue that they serve private congregations, not general public.

Or what about a person who starts a small business (and I have started and owned two businesses) and wants to run it consistent with his or her religious beliefs? Does he or she have freedom if government dictates how the business must be run? It's a good question. The truth, pretty or ugly, is that our freedoms are not unlimited. Some restrictions are necessary to prevent chaos.

The bottom line for me is that the Supreme Courtis decision in Employment Division v. Smith (1990) – holding that a law does not violate the Free Exercise Clause if it is neutral and general applicability – is the best balancing test we have where free exercise rights conflict with government promoting the general welfare (e.g., nondiscrimination). This being said, I am honest enough to admit that some people will be denied free exercise of religion. No right is absolute, even religious freedom.