- The county clerk who refused to issue licenses for same-sex marriages.
- The bakers who refused to decorate a cake for a same-sex wedding.
Both lost in court. The county clerk in Kentucky defied a decision of the United States Supreme Court, claiming a religious exemption from the fulfillment of her public duty. The Oregon bakers claimed religious exemption from civil-rights law.
In contrast, Jehovah’s Witnesses won the right, during World War II, not to say the Pledge of Allegiance in school, and Quakers are permitted to “affirm” rather than “swear” when testifying in court.
The difference was that the Jehovah’s Witnesses objected only to the Pledge, not to school in general, and the Quakers only to swearing oaths, not to courts in general. The religious exemption is a narrow one.
In contrast, the Kentucky clerk had no religious objection to the issuance of marriage licenses—if she had, problems would have arisen on her first day in office. And the Oregon bakers claimed no religious objection to decorating any and all wedding cakes.
This fall, the U.S. Commission on Civil Rights recently released a report criticizing religious exemptions that infringe on civil rights. The report concluded that religious exemptions have the potential to “significantly infringe” on a person’s civil rights.
The chair of the commission, Martin Castro, said that phrases like “religious liberty” and “religious freedom” have become “code words” for discrimination.
“Religious liberty was never intended to give one religion dominion over other religions, or a veto power over the civil rights and civil liberties of others,” Castro wrote in his statement. “However, today, as in the past, religion is being used as both a weapon and a shield by those seeking to deny others equality.”
A weapon and a shield. Many of us thought that the Kentucky clerk’s motivation was not to avoid participation in even the paperwork for a same-sex marriage, but the hope of preventing the marriage altogether.
The report recommended that “federal and state courts, lawmakers, and policy-makers at every level must tailor religious exceptions to civil liberties and civil rights protections as narrowly as applicable law requires.”
In other words, the report opposed religious exemptions that would protect one person’s religious views by curtailing the rights of another .
Some of those who oppose limits on religious exemptions use the (frivolous, in my opinion) example of a kosher or halal butcher who refuses an order for pork. But the very definition of a kosher or halal butcher includes not selling pork. The parallel example would have to be a kosher or halal butcher who sells kosher meat to the public, except to certain customers with rights protected by court decisions or civil-rights law.
For those in America who want to impose a specific, usually conservative Christian, religious view on the entire country, the parallel would be this: imagine that Jews came to hold a majority of seats in a state or, more likely, local government (there are places in New York where this is true) and used their majority to prohibit the sale of pork or shellfish, or to ban driving on Saturday.
Thus, when people tell me that they want the United States to follow “Biblical law,” I’m always tempted to ask them, “Have you stopped eating bacon yet?”