The first clue that Emily Bazelon of the New York Times Magazine is afraid of religious liberty is that she writes for the New York Times Magazine. The second clue is that the headline of her column places religious liberty in sneer quotes: “What are the Limits of ‘Religious Liberty?’”
As in, so-called religious liberty. Religious liberty exercised by people she doesn’t like. Therefore, not real religious liberty.
And to think that journalists used to act as bulwark against governmental tyranny. These days we can count on the press to be several steps ahead of the government in its zeal for violating our most basic freedoms. If Emily Bazelon actually cared about our constitutional rights she would ask the opposite question—namely, what are the limits of government coercion? The fact that she doesn’t tells us a lot.
Why exactly does she believe that the right to decline a business transaction is somehow not protected by the free exercise clause of the Constitution? What makes this kind of exercise different than say, refusing to serve in the armed services during wartime, or refusing to serve ham in a kosher deli? I think the substance of her objection can be found in two sentences—“Women who have been refused abortion services report feeling judged and mortified. Gay couples turned away by wedding vendors say the same.”
And we wouldn’t want anyone to feel “judged and mortified!”
There are a number of problems with this argument. Let’s start with the fact that the moment we accept it there is absolutely no reason to believe that the government will not force doctors to perform abortions or churches to perform same-sex marriages. We can’t have a doctor who refuses to perform abortions because women might feel the sting of judgement. Furthermore, if Adam and Steve are turned away by the local pastor, they will undoubtedly experience the same feelings of judgement and mortification as if they had been turned away by the local florist. Either religious freedom includes the right to make other people feel bad or it doesn’t. If it doesn’t, then neither the florist nor the pastor is safe.
Another problem is that anyone declined service for any reason could claim to be “judged and mortified.” I’m sure Chuck Netzhammer felt “judged and mortified” when he ordered a confederate flag cake, superimposed with the words “heritage not hate,” from Walmart, and was refused. In fact, I know he was. “I am highly offended, distraught, and in tears…”said Netzhammer.
I’m sure liberals would argue that that’s different because Walmart didn’t refuse to do business with a class of people, it’s merely refused to make a certain type of cake. But very few of these cases involving discrimination on the grounds of “sexual orientation” really do involve anyone refusing to do business with an entire class of people. They involve business owners who don’t want to take part in the celebration of what they consider to be sinful.
Take, for example, Aaron and Melissa Klein of Sweet Cakes by Melissa, the recent victims of draconian punishments at the hands of the Oregon Labor Commission for their refusal to make a cake for a same-sex commitment ceremony. They did not have a no homosexuals policy. They had even done business in the past with the two homofascists who sued them and ruined their lives. They never refused to do business with people who are same-sex attracted—which is all the law requires—or even with people who act on those attractions. They refused to participate in celebrations of homosexuality.
But back to Chuck Netzhmammer. Of course his order was not declined for any demographic trait, just as the homosexuals who sued the Kleins were not. But that’s not the relevant question. What we should be asking is whether he felt “judged and mortified.” Yes indeed. He was judged as a horrible racist in need of some thought reform. Walmart nonetheless had every right not to fill his order because it’s their bakery and they are under no obligation to worry if he feels butt-hurt about the whole ordeal.
The third problem with Emily Bazelon’s argument is the most troubling. Never in a million years did I believe we would get to the point that actual adults—Americans, no less—would make a serious argument that hurt feelings trump constitutional rights.
That day is here. The ACLU announced in June that it would no longer support the Religious Freedom Restoration Act (RFRA) at the federal or state levels. The new policy position was articulated by Louise Melling, the organization’s deputy legal director. Melling essentially argues that religious freedom must never include the right to engage in economic transactions on a voluntary basis because people are somehow harmed when they are turned away. Baloney, I say. All of the harm is done to the party who is forced to engage in the economic transaction under penalty of law. If Party A does not want to do business with Party B, Party B can go elsewhere. He is not harmed in any way.
But Melling argues that there is real harm done…to people’s feelings! “People turned away by an inn or bakery suffer the harm of being told that their kind isn’t welcome,” she writes.
Um…so? She’s clearly implying that we as Americans lack the right to tell someone else that their kind isn’t welcome. Her statement represents a sea change in the ACLU’s philosophy which used to take a strong stance in favor of our first amendment rights, even if it hurt people’s feelings. A telling example is the one they always trot out to prove that they aren’t a bunch of left-wing hacks. In 1977, the ACLU took the side of a Nazi group that was denied a permit to march through Skokie, Illinois, a city with a substantial population of Holocaust survivors. The ACLU maintained that supporting the Nazis’ constitutional rights in no way amounted to supporting their abhorrent ideology. I agree.
But I’m not sure that today’s ACLU would take that case and if they did they would be hypocrites. Why? Because the clear message of the march was “Your kind is not welcome.” The ACLU used to believe that conveying such a message was within our rights but they’ve recently had a change of heart and decided that we all have a right to feel welcome. That right cannot be secured without the kind of heavy governmental coercion heretofore found only in novels about the dystopian future. And Canada.
Not everyone has this right, of course. Chuck Netzhhammer can still be made to feel that his kind isn’t welcome because he’s a poor white southerner. But homosexuals’ delicate feelings are always and everywhere protected.
This trend of elevating some people’s feelings over other people’s rights is absolutely terrifying. The government can’t make us be nice to each other and it shouldn’t try. All of our rights are on the chopping block. Expect hate speech laws in the British or Canadian tradition, an end to parental rights, and a governmental invasion of your church. As the late George Carlin once said, “When fascism comes to America, it will not be in brown and black shirts. It will not be with jackboots. It will be Nike sneakers and smiley shirts.”
Smiley face fascism is here and it’s up to us to fend it off.
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