In 2013 in Oregon a lesbian couple went to a bakery to ask to have a wedding cake prepared for them. The owners refused on religious grounds, arguing that they disapproved of homosexuality. Attorneys who have argued on their behalf have said that the Klein’s First Amendment rights to freedom of religion permit them to discriminate in this fashion. The government of Oregon has subsequently found against the Klein’s and ordered them to pay $135,000 in “damages” to the lesbian couple. People who support gay marriage are happy with this decision. People who oppose it are mad as hell.
The Declaration of Independence contains the sentence, “We hold these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain inalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness.” The Preamble to the Constitution says: “We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.” The capitalization of nouns was common in the 18th century.
There is tension in these statements. The first, from the Declaration of Independence, is a philosophical statement that is clearly untrue in essentially all its assertions and has very little force in American law (except as guidance for a direction that we ought to take) because it was written before the United States existed. That its assertions are untrue can be discerned from inspection of history. All men have not been created equal, either in biological gifts or before the law. Jefferson was a slave owner when he wrote that sentence. “Men” is also apparently not a correlative noun meaning “mankind” or “human” because, besides slaves, women were clearly not equal then, or even now, in the eyes of the law, particularly in other countries. Our Creator, whether the Big Bang and Evolution or Yahweh Elohim, doesn’t give us any rights and certainly does not enforce them. The idea of human rights has evolved in the mind of mankind over centuries, if not millenia. The Magna Carta, an assertion of the rights of nobles vis a vis the King, was written in 1215. The concept of rights differs every time you cross a national border. Humans decide what rights you have, not your Creator. Life, Liberty, and the Pursuit of Happiness are good directions to strive for but they are certainly not “inalienable.” Societies ignore or take away these rights all the time. Certainly slaves were denied the “Pursuit of Happiness.” But having said all that, the idea of people being entitled by their Creator to the Pursuit of Happiness creates obvious tension when different legal activities, in this case running a bakery and getting married, will make different people happy or unhappy.
Now mix in “promote the general Welfare” and “secure the Blessings of Liberty to ourselves and our Posterity.” Liberals tend to put “promote the general Welfare” above “secure the Blessings of Liberty,” and conservatives do just the opposite. Yet these phrases are both there, creating tension in philosophy and in the reasons that the Constitution was ordained and established by the Founding Fathers, inspired by 18th century Enlightenment thinking as they were.
Just what religious rights does the Constitution give us? The First Amendment says, “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof….” This has always been interpreted to say that Congress shall not establish a state religion. So, America is not a “Christian Nation.” What is the “free exercise” of religion? Americans are free to go to the church, synagogue, mosque, temple, etc. of their choice. They may engage in the rituals such as communion baptism, circumcision of boys (but not girls) and so forth. But Christian Scientists who refuse to sign permission for their child to receive needed medical treatment, such as an appendectomy, or insulin for diabetes, can have their judgment overturned by a court order. Indeed, parents who continually jeopardize the health of their children for religious reasons have been jailed and had their kids taken by child protective services. Both Mississippi and California have laws on the books that do not allow parents to refuse vaccination for their children on religious, or any other “personal objection” grounds. The right to the free exercise of religion has never been completely unfettered. Until now, most of the restraints have involved preventing people from doing medically stupid and harmful things in the name of religion. The Klein case is about extending these fetters to bigots.
Since ideas about what ought to be rights clearly evolve over time, should one be able to use a religious belief as a trump card to say that my pursuit of happiness is more valuable than another person’s when both pursuits are legal activities in modern society, such as running a bakery and getting married? Should the society support the asserted right of a business to refuse to serve homosexual customers because the business owners object to homosexuality and/or homosexual marriage on religious grounds? We have reproducible evidence that there is a region on the X chromosome (Xq28) that has a strong influence on whether or not a male will be a homosexual. (Dean Hamer, et al, 1993: Science 261 (5119) 321-327; and J. Michael Bailey et al, 2015: Psychological Medicine 45 (7) 1379-1388) No similar chromosomal region has been found (yet) influencing female homosexuality but our best evidence now is that both male and female homosexuality are natural variants, just like being left-handed, or having a dark or light skin. Some people, such as Justice Scalia, are disgusted by homosexuality (his words) but it is a real, biological phenomenon, produced by the Creator, not an evil moral choice, as some of our more benighted brethren would have us believe. Most of us would not think that a bakery should be able to refuse service to a left-handed person on the grounds that he/she is “sinister,” or to Negroes on the grounds that their skin is dark and that they are the descendants of Ham who was marked by God for servitude because he saw his father, Noah, naked (Genesis 9: 22-27.) Both are indefensible prejudices proposed by people with a short data base. People with light skins come from ancestors who migrated away from equatorial Africa 60-80,000 years ago into Asia and Europe. People with darker skins have ancestors who stayed closer to the equator until more recent times. Skin lightens in order to let in enough light to catalyze the synthesis of enough vitamin D to have healthy calcium metabolism. People with homosexual preferences are also biological variants although we do not understand the mechanism as well as we understand skin color. We don’t understand left-handedness perfectly either. The Creator let all this happen.
With regard to the Klein case, I would argue that, when their religious misinformation leads them to discriminate against the natural varieties of humans that the Creator put here, they should be disciplined, as they have been. I think an award of $135,000 to the aggrieved lesbians was excessive but I don’t know how badly they were injured. They could have just gone to another bakery but they shouldn’t have to. The Kleins, who were running a public business, just like the lunch counters in the South that would not serve Negroes, should not be able to refuse service to people who wish to use their product for a legal purpose (a wedding) in the state where they are in business. I regard their religious arguments as using mythology to trump the constitution. I will admit that the Supreme Court, in its 5-4 decision in the Hobby Lobby case did just that. Justice Alito, writing for the majority, said that the owners of Hobby Lobby could refuse to pay for birth control methods for employees if the business owners considered them to be abortifacients. This ruling held that the business owners could refuse such payment if their objection was based on a sincerely held religious belief even if that belief were medically wrong (as it was according to the American College of Obstetrics and Gynecology.) The Kleins wished to force their religious beliefs on their customers, not employees, in a similar fashion. They have said that they are here to serve God, not man. In that case they should get out of the public market in this secular society established by “We, the People.” They need to grow up. Bake the cake and take the money. They don’t have to go to the wedding.
By the way, God’s “truth” as written in the Bible clearly countenances slavery and plural marriage. Both of these practices have been outlawed by our secular, American society. How do the Kleins stand on those issues?