Liberty Defense League Timothy Baldwin Romans 13

 
You Are Here: Articles Tuesday, May 12, 2015

by Tim Baldwin

The Flathead Beacon published the following article of mine it its latest weekly column:

Years ago in America, the majority discriminated against people based on sex, religion and race. Until 1920 (19th amendment, USC) women could not vote. Until the 13th and 14th amendments, black people were property. Until 1967, states criminalized white and black people marrying each other. Those who supported these discriminations used either religion or natural law for justification. Liberal thinking people fought these discriminations successfully, and most conservatives today praise this fact.

With federal courts ruling that Equal Protection prohibits states from denying marriage licenses to homosexuals, anti-homosexual folks are barricading themselves from further federal court decisions — a new kind of “separate but equal” attempt. The most notable attempt is Indiana’s “Religious Freedom Protection Act.” RFPA states that churches, federal tax-exempt groups, etc. can discriminate against homosexuals based on religion. This is foreseeably problematic.

Philanthropy considered, RFPA will foster disrespect for fellow American citizens. Consistency considered, anti-homosexual organizations will prove hypocritical because they will certainly transact business with people whose lifestyles the Bible condemns. Politics considered, if sectarian religion becomes the benchmark of what laws should be, reason will suffer. What distinguishes homosexual discrimination from prior discriminations in the name of religion?

So, does our constitution prevent certain discrimination so that the majority cannot oppress the minority? Or is there a new “separate but equal” movement?

The fundamental question that arises from this issue (of whether private corporations, groups, businesses and individuals should be prohibited from refusing services offered to the public based on a person being homosexual) is what kind of society is America. Are we a society that accepts the absolute and unconditional right of association, or that prevents groups from discriminating based on core concepts human equality?

It is true that the First Amendment protects the right of association. No person can be forced to associate with people with whom they choose not to associate. For example, government cannot force a person who believes homosexuality is wrong to support or join a gay and lesbian organization. Similarly, government cannot force people to attend a Christian church. Society and courts have always held that the First Amendment prevents government from forced associations. But is right of association the same as being able to refuse services to people based on sex, religion, race or political belief?

In the absolute and unconditional sense of the phrase "right of association," being able to discriminate against people based on these facts is included. If I own a business and I do not want to offer services to a certain race of people or to certain religious sects, the "right of association" would support my ability to refuse services to those people. However, American society has long rejected such an absolute right of association. And those who argue that the right of association is absolute and unconditional right of association will likely have a difficult time explaining that private companies, including the health care industry, have a right to refuse services to, say, black people, homosexuals or Muslims.

I venture to say that hardly any "conservative" would argue that we should repeal state and federal civil rights laws and allow private companies, groups and associations who offer services to the public to refuse services based on sex, religion, race or political belief. This indicates that America is, in practice, a society that rejects the absolute and unconditional right of association relative to the areas prohibited by these laws. This is why state laws that essentially legalize private discrimination against homosexuals are going to run into legal, political and societal problems. Again, think about a hospital owned by a religious group. Will society really allow these kinds of services to be denied homosexuals based on religion objection?

I suspect that some "conservatives" will take the issue too far by saying if states cannot protect private discrimination against homosexuals then the government will force churches and other religious groups to allow homosexuals to hold membership and positions of leadership. But those persons would be wrong, because this is where the First Amendment protects the right of association.

Churches have been discriminating against people based on sexual considerations since the United States' existence and even after the civil rights laws were passed. For example, some Christian churches believe the Bible teaches that women cannot be pastors; thus, they refuse to allow women to teach the Bible and hold other leadership positions. The same is true concerning homosexuals. This is sex discrimination, but federal courts continually protect that practice, holding that the First Amendment guarantees the right of religious liberty.

This right of association and religion includes the right of churches to chose its ministers and employees and to set the terms of their employment.  One federal court articulated the First Amendment's application this way:

The First Amendment protects a churchchurch's right to hire, fire, promote, and assign duties to its ministers as it sees fit not because churches are exempt from all employment regulations (for they are not), but rather because judicial review of those particular employment actions would interfere with rights guaranteed by the First Amendment. (Elvig v. Calvin Presbyterian Church, 397 F.3d 790, 792-793 (9th Cir. Wash. 2005)).
 
Religious groups do not need a statute to protect what the courts already hold is protected by the First Amendment. It appears that the intent of Indiana's statute then is to protect private discrimination of non-profit groups that deny public services to homosexuals, just as laws used not to prohibit private discrimination against minority races, women and non-Christians.
 
I suppose if America's majority rejects the civil rights laws and their undergirding principles of human equality and instead re-imposes the absolute and unconditional right of association then states will be allowed to protect private discrimination against homosexuals. I do not see this as happening in American, however. So, as long as America remains a society that prohibits certain private discrimination based on sex, religion, race and political belief then courts will view state laws like the one in Indiana with heightened scrunity.
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