When is religious liberty really damaged?

From an article supporting religious liberty.

Lately, religious liberty has been looking like the freedom that eats everyone else’s for breakfast. In Arizona and other states, fundamentalists said they were acting in the name of religious liberty when trying to pass laws that would allow businesses to refuse to serve people based on theological or moral objection (people who just happened to be gay). And in the Supreme Court challenges to the Affordable Care Act contraception mandate, two companies run by conservative Christians, Hobby Lobby and Conestoga Wood, argue that the government can’t require them to provide health insurance that covers birth control because that would violate the religious beliefs of their businesses. In other cases making their way through the courts, religiously affiliated groups like Notre Dame and the charity Little Sisters of the Poor are objecting to the form their exemption from the contraception mandate takes, because, again, of religion. …

But rooting against Hobby Lobby or anti-gay bills doesn’t have to mean rooting against religious liberty. When Congress passed RFRA, liberals helped take the lead. The law was a disapproving response to a 1990 Supreme Court ruling in the case Employment Division v. Smith, a suit brought by two drug counselors who were fired after taking peyote in a Native American religious ceremony and couldn’t get unemployment benefits because their use of the drug violated state law. Could the state do this, or did their constitutional right to religious freedom mean they should be allowed to use peyote in a religious ceremony without penalty? …

All too many Christians assume that only conservatives support religious freedom. And, they would be quite wrong. It may surprise some reading this blog that the ACLU has actually, and up to the present, defended several religious liberty cases. What there is, is a divide between the interpretation of two different clauses in the Constitution of the United States of America. One clause is the establishment clause and the other clause is the religious freedom clause. The problem is that all too many Christians do not see them as different clauses and are upset about the interpretation of the establishment clause.

Here is the problem. There is no one answer to the balance between the two. Current conservative Christians are arguing that even if they are a non-religious company in the public marketplace that they have the right to refuse service to anyone they wish to simply on a claimed religious belief. Needless to say, there is a counterargument, one that is the official decision of the USA Supreme Court, that a business engaging in public business cannot refuse service to anyone based simply on something about their identity or behavior outside the business. A private club may indeed do so, even if it is a secular club. Thus, women need not be admitted to a private golf course, if it is a membership only course.

This should not be a surprising decision. The Court is trying to find a balance between the religious freedom clause and the establishment clause. One need only look at the 1950s and before to see the horror that was present in many parts of this country. There are photographs of signs from the North that say that no Irish will be served in a particular public establishment. There are photographs of signs from the South that prohibit “Negroes.” The eventual decision was that businesses that dealt with the public could not prohibit certain customers based merely on personal belief. However, private clubs or private organizations do have the freedom to refuse membership to anyone to whom they wish to deny membership.

Every year there are cases based on those two types of ruling. Inevitably, religious people will cite instances in which a public venue attempts to limit their rights. Inevitably, secularists will complain about being forced to participate in a public observance in which private religion is injected. Both type of cases are actually good examples of the violation of one clause or another. Each side is able to cite organizations that have gone too far to one side or another. Worse, each side of the argument extrapolates from those individual cases to claim that the entire judicial and/or political superstructure is getting ready to remove their rights. That is very wrong thinking by both sides.

What is true is that we are losing balances in this country. Each side is completely convinced that their side is in danger. Each side claims that the other side is ever so mistaken in believing that they are being unconstitutionally treated. Yet, I have read about students being asked to take the cross off of their neck. And, I have been present at a July 4th celebration in a small town here in Alabama in which a local preacher basically preached a salvation sermon as though that is what the Founding Fathers wanted. Neither side is willing to find the balances between the two clauses. Right now there are cases by Hobby Lobby and an order of nuns regarding the Affordable Care Act. I predict that Hobby Lobby will lose and the nuns will win. I base this on prior case-law. And, I know that this will lead to claims of both victory and defeat by both sides. Sadly, there will be no attempt to come to an understanding.

I do not have a good solution. I can tell you that we are losing the balances that were established at the beginning of this country. That can lead to no good ending.