The Christian Right has become greatly attached to this phrase. The most recent application is whether a business owner should be compelled to conform to the law if doing so is unacceptable in the owner’s “sincere religious belief.” Lately, freedom of religion is cited as a constitutional defense against serving persons who are lesbian, gay, bisexual, or transgender. For many Christians, any sexual orientation other than heterosexual within marriage is a sin. Participating in LGBT life—even in wedding planning or catering—links the Christian with sinful activity.
As a self-employed consultant for decades, I valued and used the freedom to choose and to reject customers as I wished. Some, for example, were hard to get along with or slow to pay. Had the government told me I had no choice in the matter, I’d have been greatly disgruntled. So I can understand the value of a business person’s prerogative. My services added value to the society, hence the fee that enabled me to share in some of that contribution. If I were to serve some particularly troublesome customers, I would waste effort such that the net value both to society and to me would be reduced. In other words, the (more-or-less free) market worked. Attempting to steer it for whatever reasons, say, for a regulator’s opinion that everyone was equally deserving of what I had to offer, would have imposed a net cost.
So what is going on with so-called “religious liberty” bills in which state legislatures are currently awash? Do they not fall under the same logic I’ve just supported? Is religious choice not to be granted just as much legitimacy as my business choice? It would surely be more, for religious freedom is constitutionally protected, whereas business choice is not. How can compulsion to serve “unacceptable” customers not be as damaging as I’ve suggested when the reason not to do so is a religious reason?
The reason, of course, is public policy—“we the people” acting as a group. Our American history has been that the unencumbered exchange of economic goods (the free market) is the default position, but that for whatever reasons the public chooses—after all, that is the meaning of “we”—the body politic can override that market. We do so regularly and the most right wing of right wingers partake in that free market override. We do so whenever we vote for a public park or sports stadium, impose air traffic controls or food safety regulations, and a host of other public interferences with individual prerogatives. Yes, each such choice is controversial as it should be, but when decided is a legitimate public choice.
One such choice is that businesses offering their services to the public may not discriminate among consumers on the basis of race. This was almost violently controversial only a few years ago. Vendors, though they certainly tried, could not refuse service to non-whites just because they had “sincere religious” reasons not to partake in the mixing of races. Then as now with LGBT inclusion, in no case have the religious beliefs and practices of those sincerely religious people been curtailed, just their freedom to impose those beliefs on the public order of business. Now interference in vendors’ choice has been extended to customers of LGBT biology or predilection. Only sometimes do we remember that religious freedom does not include the freedom to tell others what to do nor the freedom to override the legitimately derived “we the people” values about the social order.
One of the problems with the “sincere religious belief” doctrine is that it is open-ended, capable of covering any excuse for exemption from law. Moreover, what court is competent to rule on the “sincere” component of the defense? Is it to be sincere within the dogma of an established religious organization? Can it be sincere within the dogma of an obscure religious sect? Can a Muslim taxi driver’s religious feelings excuse his or her refusing to accept a customer carrying a package store bottle of whiskey? How about sincerity within an established non-religious ethical union? In fact, is the religious part critical? Can it be religious, but related to a sect no one has ever heard of? Frankly, is there anything “sincere religious belief” doesn’t cover?
Governmental action must focus on what overriding social requirements are so important as to be worth curtailing or tempering individual choice, yet even then in a way that preserves those rights short of their imposition on those of competing beliefs. Sincerely held religious beliefs deserve no less, to be sure, but no more.