By Scott Weiser
Some incidental impacts on religious belief such as paying income tax are permissible. But when the law forces people to relinquish their religious belief in order to participate in public life, it is repugnant to the foundations of the nation and our laws.
Gay marriage has been held to be something that government cannot and should not forbid for reasons of equal protection under the law and mandatory government religious neutrality. There remains a fundamental divide between those who believe that gay marriage is morally acceptable and those who have firm religious and moral convictions that marriage is a sacred covenant handed down by God as between one man and one woman that cannot be extended to gays. Those who hold this belief cannot be forced into associating with gay marriages any more than gays can be forced into association with religions that do not support their beliefs.
The First Amendment protects the right of both groups to hold these disparate beliefs. Each is required peaceably tolerate the exercise of those beliefs by the other. Each group is to keep to itself and refrain from interfering with the beliefs and practices of the other.
That’s what “discrimination” actually means with respect to the First Amendment rights of freedom of association, freedom of speech and freedom of religion. We all have the right to peaceably refuse association with others and decline to speak on their behalf. This includes the right not to be compelled to serve others in violation of our religious beliefs.
One person may discriminate against Christians by refusing to associate with them. Another may discriminate against outlaw biker gangs by refusing to associate with them. Someone else may discriminate against Broncos fans by associating only with Steelers fans. Yet others may discriminate against gays by refusing to associate with them.
The permutations of constitutionally protected discrimination are literally endless. Refusing to force people into unwilling association with others by government mandate has for most of our history been one of the bulwarks of our liberties and perhaps one of the most important safety valves in preserving public peace and order.
The protection of the right to discriminate is and must be jealously guarded because forcing people into unwanted associations is a prime cause of conflict and violence in any society. Any attempt to force associations carries with it a clear and present danger of fracturing the delicate balance of mutual tolerance and producing conflict and violence. Therefore great care must be exercised when infringing on the right to discriminate.
Like every other right the right to discriminate is not absolute, but only the most compelling need on the part of government to force such associations can be countenanced, and then only when the forced association constitutes the least intrusive way of achieving a legitimate, necessary governmental purpose.
The effects of forcing people into unwanted association are particularly notable today, where intolerance for diversity of opinion and demands for forcible association have manifested in social and political polarization that is spiraling down into precisely the sort of public disorder and violence that our pluralistic and mutually tolerant society was created to prevent. The need is one of careful legislative and judicial balancing the various interests involved in order to protect the tolerant plurality of belief our nation is founded upon.
Religion most often consists of a set of beliefs about the nature of the universe combined with a moral code to guide believers in their associations with one another. But that’s not the only definition of religion. Religion is also defined as “something one believes in and follows devotedly; a point or matter of ethics or conscience.” This non-theistic definition perhaps better describes the important place that individual moral beliefs hold in our society than do the usual theistic references to the commandments of a deity.
That which people follow devotedly as a matter of ethics or conscience can easily become an ideological battleground. When diversity of opinion and belief are no longer mutually and peaceably tolerated, all too often people become willing to lay down their lives, their fortunes and their sacred honor on an actual battleground littered with the casualties of ideological intolerance.