Discrimination is not a choice, but the criteria for discrimination are.
“Religious Freedom” is a loaded term, as we learned last month when Indiana’s governor signed a bill which will allow business owners to cry religious oppression in order to avoid serving gays and lesbians (or any other group of people who are deemed by a given religion not to be worthy of a god-damned bouquet of flowers for their weddings).
This is of course what we expected would happen, a year or so after Hobby Lobby used a similar sentiment to exclude contraception from the health care it is required to cover for its employees.
I think the spirit of the phrase “religious freedom” is being betrayed here. To explain this, I must use a thought experiment. Let’s say that a particular religious text could be interpreted as saying that each person who is homosexual is such because they have been told by God, personally, that they will henceforth be attracted to members of the same sex, and that they should behave in a way that fulfills this attraction. That is, in this religion, one’s identity as a homosexual is dictated by a divine force, and exercise of one’s religious beliefs includes having sex with and possibly marrying consenting members of the opposite sex.
Now say that John and James, both cis-gendered male members of this religion, and both residents of the state of Indiana, have decided to get married. Since gay marriage was legalized in October 2014 for their home state, they don’t have to worry about the fact that if they had wanted to get married in September of 2014, they would have been prevented by the state from practicing their religion.
John and James send out their invitations, rent a beautiful venue, select fabulous, beglittered tuxes, and hire an Elton John impersonator as a wedding singer. A week before the big day, John and James are refused service by Thomas, the owner of a flower shop, on the basis that selling flowers to John and James for their big, gay wedding would violate his religious freedom, as a practicing member of a religion that prohibits him from selling to or even interacting with homosexuals (especially engaged ones). Thomas, creator of jobs, even tries to hire an intermediary to speak to John and James on his behalf, but because his business is so small, cannot afford to.
After several legal kerfuffles, the case John and James vs. Thomas reaches the United States Supreme Court.
John and James are fighting for the right to purchase flowers from Thomas, the best florist in their home of Shitty-Town, Indiana, claiming that refusal of service on the grounds of Thomas’ religiously-motivated exclusion of homosexuals from all aspects of life is itself religious discrimination, as John and James are homosexuals in virtue of their religious faith. Thomas is fighting almost the perfect converse of this: that serving homosexuals is against his religion, even if they are homosexual for religious reasons. Also, Thomas would like the state of Indiana to pay for an intermediary to speak to John and James, as Thomas is prohibited from doing so by his religion, and cannot afford to pay for one himself.
The Supreme Court must, in other words, decide how to evaluate the standing of two opposing religions. No matter their decision, one thing is clear in this scenario: one of the religions will be demoted, and its followers told that their way of life cannot be enforced legally. Religious discrimination is not an option, it is the rule which governs this case.
Several realizations I’ve had from this thought experiment bear mentioning.
1) There is no functional difference between John and James’ homosexuality being a result of religious dictates and it being a result of their personal identity or choice. In both cases, they’re two dudes playing with each other’s dangly bits. (And I should say, there is no law prohibiting the formation of John and James’ religion IRL, at least in the states where gay marriage is already legal -the only requirements the US government makes upon a religion in order for it to be “legitimate” are that it be genuinely, faithfully believed by a person, and that it not contradict previously established laws).
The only difference is that in the first case, they are being told to do something by a deity, and in the second case, they are simply asserting their own identities and feelings.
I am extremely concerned about what this says for the relative importance that we place on authoritarian versus autonomous control. That we are comfortable with compulsion of an individual to do something by an unknowable mind, but less comfortable if they are motivated to do the same thing for personal reasons, is indicative of a very different valuation of individual choice than we as freedom-loving, American patriots are claiming. This also goes for Thomas’ case - Thomas would not have the same grounding if he said that he, personally, wanted to discriminate against homosexuals. Allegiance to authority (especially divine authority) is given such deference that its invocation can shield individuals from having to justify their personal motivations.
2) For reasons similar to those in #1, the meaning of “religious freedom” is not functionally different from that of “freedom to live how one chooses”. That is, in practical terms, the thing that is being protected under the banner of religious freedom is a way of life that precipitates out of a belief.
In this sense, the example of John, James and Thomas sets them on equal footing: they are all pursuing a way of life on the basis of some ideology.
3) Were the SCOTUS tasked with deciding which religion to demote, they would come up against a fairly familiar paradox - in order to demote a religion which actively discriminates against (i.e. makes value determinations and restricts the free actions of) a group of people, they themselves must be given special rights to discriminate against the followers of that religion. But, as we’ve already established, they will have to discriminate against members of one religion or another in either case. It is unavoidable.
I can’t honestly say I know what the SCOTUS would do in this situation. But what should be done is obvious: the religion which is most feasibly a shield for a personal prejudice which we would not support if it weren’t demanded by a divine authority is the one you demote.
Let’s try this out in the example.
For John and James’ religion, what are the possible personal prejudices they could be attempting to hide through their religion, which informs them of their homosexual identity, and compels them to act in a way that maximizes their happiness as homosexuals?
For Thomas’ religion, what are the possible personal prejudices he could be attempting to hide through his religion, which compels him to avoid serving and interacting with homosexuals?
...Yeah. Sorry Thomas.