Right to Religious Freedom? Yes. Right to run a business according to your faith? Not necessarily.

Our nation’s commitment to the free exercise of religion is unwavering. Religious organizations are tax-exempt, and gifts to religious organizations are tax deductible, lest the tax code be seen as a burden to the free exercise of religion. Americans are free to assemble with people of like faith and to practice their faith in community without fear of government intervention. People can generally dress, worship, eat, practice morality, and otherwise structure their lives in accordance to their faith. This is a great strength of our nation.

And even the Armed Forces support a Chaplain Corps that provides service members with Chaplains who perform religious services and provide for the free expression of religion of service members. Chaplains also advocate for religious accommodation – to include provisions for a religiously-defined diet, the wearing of particular religiously-prescribed clothing, religiously-defined grooming standards, required head coverings, etc. – within the highly structured and uniform environment of the military.

We are a nation committed to the free exercise of religion.

In this spirit, the federal Religious Freedom Restoration Act was passed in the 1990s to guarantee the free exercise of religion by members of minority religions whose religious free exercise was unintentionally burdened by laws that otherwise had nothing to do with religion. So committed to the free exercise of religion are we that we wanted to make sure that minority religions could practice their faith without other laws would hinder their religious practice.

Yet, just over a week ago, my state passed a law that was designed to protect members of the majority religion (Christianity) from public policies they perceive as burdening their religious beliefs. What began as a law to protect the free exercise of religion from unintentionally burdensome laws has become, in its most recent state-law versions, a law to allow corporations to seek exemption from public accommodation laws on religious freedom grounds.

Of course, we’re talking about businesses owned by Christians who feel it a violation of their religion to provide services to gays and lesbians, particularly to gays and lesbians seeking same-gender wedding services (flowers, cakes, photography, etc.). They believe that providing such services would be an endorsement of a marriage that goes against their religious beliefs.

Yet, there is a big difference between ensuring the free exercise of one’s faith, and guaranteeing that a religious person who owns a business can operate that business with religious exemptions to key public policy commitments of our nation – including that of public accommodation (ie, businesses must serve all customers who walk through the door).

To this degree, the Armed Forces offers a helpful lesson.

The Armed Forces provides a Chaplain Corps to provide for the free expression of religion, and to perform religious services (worship, prayer, sacraments, rites, counseling, etc.) for service members. Yet, this commitment to religious expression within the military does not – cannot – accommodate a service member whose religion forbids the carrying of arms or engaging in combat. Such a citizen simply cannot be a soldier.

Ultimately, there is no constitutional right to join the Armed Forces.

Perhaps this is instructive for Christian business owners who seek exemption from serving certain customers. While there is a constitutional right to practice religion, and while free enterprise is central to our nation’s culture and economy, there is no Constitutional right to be a baker, or a photographer, or a florist. If conducting business according to the laws of our nation causes the business owner to violate their faith, perhaps the business owner need to find a new line of work.

The pacifist Christian cannot expect to keep a job in the military without violating her faith.

The orthodox Jew cannot expect to work in a pork processing plant without violating his faith.

Likewise, the conservative Christian perhaps should not expect to work in the wedding industry, if such work might require her to serve couples that offend their religious sensibilities.

The life of faith requires people of faith to make hard decisions. Will we tithe, spending less on consumer goods, house, or sports for our children? How will we raise our children? What choices will we make for engaging the culture – do we participate in civic holiday celebrations or not? What happens when religious practice conflicts with school or work schedules (an issue of particular concern for minority religions)? For some Christians, perhaps, one new hard decision they face is to find a line of work that would not put them in a position to violate core tenets of their faith.

I do not share the concern about same-gender marriage that some conservative Christians have. Yet, as someone committed to the free exercise of religion, I support the right of people to believe what they feel they are compelled to believe by their faith. Yet, their right to believe does not translate into a right to conduct a business in a way that sidesteps certain laws and commitments of our nation.

Freedom of Religion vs. Freedom of Worship

In speeches over the past few months, President Obama and Secretary of State Hillary Clinton have both used
the phrase "freedom of worship," rather than the more common phrase "freedom of religion," found in the First Amendment.  Some religious conservatives are raising concerns about what this change in terminology could mean for domestic and foreign policy.

Short a much broader analysis of administration speeches and reports,
I have no way of knowing if this language change is widespread or is
simply a quote from a few speeches cherry-picked by administration
critics to make a political point. Nonetheless, the phrase has found its way into speeches, and could reflect a significant change in perspective for the Obama administration.

From Ms. Samelson's piece:

Any person of faith knows that religious exercise
is about a lot more than freedom of worship. It’s about the right to
dress according to one’s religious dictates, to preach openly, to
evangelize, to engage in the public square. Everyone knows that
religious Jews keep kosher, religious Quakers don’t go to war, and
religious Muslim women wear headscarves—yet “freedom of worship” would
protect none of these acts of faith.

I don't share the Orwellian fears held by Chuck Colson (in a disturbing, anti-homosexual, leaping-to-conclusions video here) and others that this change of terminology reflects a clear intent by a liberal government to quash religious freedom and eradicate religion from the public square.  But I do believe that words are important, and that if this change is more than mere semantics, it could have a significant impact in how our government, through both foreign and domestic policy, engages matters related to the personal and corporate religious practices of people worldwide. 

As someone who believes that the practice of religion extends far beyond the act of worship, I'd be concerned if the administration is making a policy change in favor of "freedom of worship" rather than the broader, Constitutional, and much more comprehensive "freedom of religion."

Religious Groups on Campus: Christian Legal Society vs. Martinez

Earlier today the Supreme Court heard arguments in Christian Legal Society vs. Martinez, testing whether a school's nondiscrimination policy can result in barring a student religious group – which, by definition, is limited to people who share that faith – from receiving official campus recognition.  The case involved a student organization at Hastings College of the Law, the Christian Legal Society (CLS), being denied official status because it bars from membership homosexuals and those who practice or support premarital sex.  NPR has a nice review of the issues involved in this case here

In Sunday's Washington Post, George Washington University law professor Jonathan Turley writes that "[a] campus offers a cradle of free speech where students can form organizations that foster the exchange of ideas and values.  Supporting such groups should not be viewed as endorsing their beliefs but rather as encouraging associations."  Encouraging associations is a public good, yes, and should be a priority of any school's student affairs office.  But is it required of public universities, even in violation of other school policies? 

For the internal workings of the student groups, enforcing a nondiscrimination policy could wreak havoc on the group's identity.  Professor Turley wonders what would happen if schools enforced nondiscrimination policies on the internal workings of Orthodox Jewish or Wahabi Muslim groups.  The NPR piece asks what would happen if an environmental student group were forced to admit into membership students who denied global warming.

This case seems to be less about the free exercise of religion, and more about how public universities govern and provide material support for student life activities.  The Christians who formed the CLS continue to enjoy their Constitutional rights to free association and free exercise of religion, even though their group was denied official standing at Hastings.  Members of the CLS continue to be free to associate and organize and worship.  Nobody is prohibiting these students from practicing their faith.  Rather, the question is whether a school must extend the benefits of official recognition – including subsidies, priority use of campus facilities, and access to the school's email network – to groups that violate the school's nondiscrimination policies.

I'm ambivalent about this issue.  I don't think it is a bad idea at all for schools to support student groups, both those that are religious and non-religious, those that are open and those that have restrictions to membership.  However, I tend to believe it is a bad idea for Christian groups to seek official support or subsidy.  Religious groups are best when they are operated independent of governmental or other funding sources that don't share in its mission.

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Post Script:

From Turley's piece:

These conflicts are forcing courts to confront the reality that most religions are based on exclusivity principles and, to some extent, discrimination. Whether it is the chosen and the unchosen or the faithful and the infidel, religions define their members in part by the adherence to a set of moral strictures. In Matthew 4:4, Jesus says, in reference to the Old Testament, that "every word . . . comes from the mouth of God." That does not allow much wiggle room for many in tailoring their views to meet societal demands.

Professor Turley oddly interprets Matthew 4:4, supposing that Jesus' quote of Deuteronomy 8:3 – "one does not live by bread alone, but by every word that comes from the mouth of the Lord" – is a reference to the Old Testament as a whole, and thus an example of how religious groups couldn't be expected to "[tailor] their views to meet societal demands."  Jesus' words in Matthew 4 are not about the immutability of the Old Testament – and neither is the original text from Deuteronomy – but rather about the call of the faithful to depend ultimately not on material goodies but on the promise, Word, and will of God.  Turley's attempt to shoehorn this passage into some argument about the restricted membership and practices of religious groups is just odd.

UPDATE:

Howard Friedman of Religion Clause offers great links to briefs filed, opinion pieces, and background pieces about this case, here.