Redefining religious freedom as religious privilege

The First Amendment Defense Act seeks to upend an enduring understanding of our rights.

Hands of a same-sex couple.  Photo by Nick Karvounis/Unsplash

(RNS) — The First Amendment Defense Act. It’s a name that Big Brother would be proud of, seemingly plucked from the bowels of the Ministry of Truth in George Orwell’s “1984.”

The Senate bill is not the bulwark its name suggests but the latest salvo in the ongoing attempt to redefine religious freedom as religious privilege. It does nothing to defend the First Amendment; in fact, it violates it.

To understand just how awful the First Amendment Defense Act is and grasp what a discriminatory disaster it would be for the country, we need to get back to the basics of the First Amendment itself.

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The amendment is beautifully concise: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”

Those six rights — a secular government, free exercise of religion, free speech, free press, assembly, and petitioning your government — have two things in common. First, none is unlimited. Second, though not absolute, all six seek to protect the one absolute right that we do possess: the freedom of thought.

The First Amendment on the side of the Newseum building in Washington. Photo courtesy of Creative Commons

It might seem odd for a constitutional attorney to point out that, other than the freedom of thought, all our rights can and should be curtailed in certain circumstances. But it’s true. Even the free exercise of religion can be limited. Look closely at the language and the amendment makes this clear. The free exercise clause prevents the government from “prohibiting the free exercise” of religion; it does not prevent the government from regulating conduct that might be religiously motivated. Free exercise can be burdened, encumbered, hampered, impeded, strained, and hindered — it cannot be prohibited.

For believers, this means that your right to believe cannot be impinged in any way, but your right to act on those beliefs can. This is where our conflict arises. The conflict is between belief and action. People can believe whatever they like. They are free to believe the voices they’re hearing in their heads are the voice of a god, or that thetans and evil spirits make us sad, or that the Earth is only a few thousand years old. They are even free to believe, as the owner of a Colorado cake shop does, that a guy named Jesus was a carpenter, and that he wouldn’t have made a bed for a gay couple.

But the right to act on those beliefs is by no means absolute.

The First Amendment Defense Act seeks to upend this enduring understanding of our rights. It elevates religiously motivated action to that same plane of absolute protection that has been reserved for the freedom of thought. The bill is not about protecting religious belief; it’s about protecting speech and action based on religious belief.

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Yet the act does not extend this privilege to all religious beliefs. Under it, some religious beliefs are more privileged than others. In an unbelievable overreach, Sen. Mike Lee, R-Utah, and the other 21 co-sponsors of this bill actually singled out the religious beliefs that they deemed worthy of protection. Only two made the cut:

1. Marriage is between one man and one woman.
2. Sexual relations outside marriage are improper.

Singling out specific religious beliefs for entitlement violates, rather than “defends,” the First Amendment.

Utah Sen. Mike Lee. Photo courtesy of Creative Commons

As the two chosen beliefs make clear, the First Amendment Defense Act is not about the First Amendment; it is about legalizing discrimination against LGBTQ Americans in the name of a god.

But what about the bakeries and florists and other businesses who are “forced” to serve all customers, even those condemned by their faith? Isn’t this bill just allowing them to act out their faith? Remember, the right to act on religious beliefs is not absolute. Thomas Jefferson and the Supreme Court, writing 100 years apart, used the same obvious example to prove this important point: human sacrifice.

If a person believes a god is commanding them to sacrifice their child — as has been known to happen in the Bible — do they have a right to act out their faith? Obviously not. They can believe that command is real and divine, but they are not exempt from laws against murder because of that belief.

Nobody is telling bakeries or florists or any business that happens to be run by a Christian that the owner cannot hold or even express their beliefs. But just as belief is not a license to murder, it is not a license to discriminate.

We have anti-discrimination laws because, without them, businesses can and have made second-class citizens of entire races, religions, and nationalities.

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Bigots have often justified discrimination by invoking their religious beliefs. In the 1960s, Maurice Bessinger refused to let a minister’s wife enter his South Carolina barbecue joint because she was black. He believed that “serv(ing) members of the Negro race … would violate his sacred religious beliefs.” The lawsuit against him made it all the way to the Supreme Court, where he argued that the Civil Rights Act was invalid because it “contravenes the will of God” and interfered with the “free exercise of (his) religion.”

Similarly, Bob Jones University, founded by and named after the evangelist and broadcaster, denied entry to black students and lost its tax-exempt status as a result. The school unsuccessfully argued that the discrimination was justified because it was based on sincerely held religious beliefs. This was in the 1980s.

Courts continually rejected these arguments, which attempted to situate the right to discriminate in the First Amendment. This bill is an assault on the First Amendment, not a defense of it, and likewise must be rejected.

Thomas Jefferson told us, “The legitimate powers of government extend to such acts only as are injurious to others. But it does me no injury for my neighbor to say there are twenty gods, or no god. It neither picks my pocket nor breaks my leg.” If religion mandates picking pockets, breaking legs, or discriminating against other citizens, it comes under the purview of our secular law. No belief, no matter how fervent, and no law, no matter how slyly named, should change that. There is no religious right to infringe the rights of others.

The First Amendment Defense Act is a bad bill. It should die a quiet death in the Senate Judiciary Committee, just as it did in 2015.

(Andrew L. Seidel is a constitutional attorney and director of strategic response at the Freedom From Religion Foundation, a national state-church watchdog and nonprofit with 32,000 members. The views expressed in this commentary do not necessarily reflect those of Religion News Service.)

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