Yesterday, I listened to this two-person panel sponsored by the local Federalist Society. The speakers were Professors Richard Duncan and Ann Althouse, and they spoke on "The Constitutionalization of the Sexual Revolution and What It Means for Religious Liberty, Federalism, and Self Government." It was a lively discussion on the line we draw between religious freedom and civil liberties, specifically those in the sexual realm. I had a bit of frustration with Professor Duncan because he kept going back to the example of how Catholic adoption agencies in Massachusetts cannot turn away gay couples looking to adopt because if they do, the agencies would be violating anti-discrimination laws, which made him sound very one-sided.
At the end of the panel, I started asking myself a lot of questions. Should religion have as much influence in the political sphere that it does? Should the government have influence over one's religious beliefs? Should the religious beliefs of a vocal minority, plurality, or even a bare majority have any bearing on policy? In short, what constitutes as a legitimate violation of religious freedom and what constitutes as an encroachment on freedom that is merely disguised as religious freedom? When should I care that your religious beliefs have been violated, and when should I tell someone to "just deal with it?"
Constitutionally speaking, there's this little thing called the First Amendment. There are two relevant aspects of it: an Establishment clause, which states that the government cannot establish religion, and the Free Exercise Clause, which gives individuals a pretty wide range to practice one's religion in peace.
As a libertarian, my take on religion is that as long as you are not harming anyone (i.e., the nonaggression axiom), you can practice your religion as freely as you like. This rule applies to all, which means that an individual cannot impose their religious beliefs on other individuals and cry "that was a violation of my religious beliefs" when that individual doesn't get their way. I'll use myself as a hypothetical example. I have the right to keep kosher in accordance with Jewish dietary laws because that's part of my freedom of religion. I do not, however, have the "right" to either force others to keep kosher or even force all restaurants to adhere to Jewish dietary law. At the very least, you'd have a lot of people become angry because eating bacon cheeseburgers or shrimp would become illegal. Policy should not be enacted simply because it violates an individual's sense of religious right or wrong. Otherwise, it would become an argumentum ad absurdum very quickly.
So how do all these factors get applied to modern-day politics and policy?
1: Gay marriage. As I have argued before (see here, here, and here), same-sex marriage is not only a civil right dealing with equality, but it is a matter of contract rights. If you're on the Religious Right and you think that same-sex marriage is "an affront to G-d," then my advice to you is don't get married to someone of the same sex. You have the right to believe same-sex marriage is wrong (and I also have the right to disagree with that assertion), but you don't have the right to impose your religion on other people. A ban on same-sex marriage based on religion is as tenuous as my argument of making everyone in America adhere to Jewish dietary laws: it has no place in a free society.
2: Gay adoption. If we go back to Professor Duncan's main grievance, he brings up there being an issue with anti-discrimination laws, and I agree. Do I personally like the anti-gay discrimination of the Catholic adoption agencies? Absolutely not! In spite of that, I do have to respect the Catholic Church to run their private institutions in whichever way they would like. Fortunately, the Catholic Church's views do not stop a gay couple from exercising their right to adopt, especially considering that there are other adoption agencies out there that are more than willing to allow same-sex couples adopt. And as a side note: if we are to respect the Catholic Church as a private institution, then they shouldn't be receiving government funding. Otherwise, deal with the strings that are attached!
3: Anti-discrimination laws. Being a libertarian Jew, I have very mixed feelings about anti-discrimination laws. On the one hand, I know discriminating against employees based on something like religion, race, gender, or sexual orientation is wrong. Employers should select employees based on their skills. On the other hand, the notion of property rights allows proprietors to run their businesses however they want, regardless of how idiotic or immoral their discrimination is. This sort of idiocy does end up being punished. There is a reason why more and more businesses are being pro-LGBT: it's good business. Once the momentum for a civil rights movement begins, the trajectory is in favor of progress and equality. Businesses realize that as time goes on, more people will be pro-gay rights, which means that over time, being anti-gay is poor business strategy.
4: Obamacare and Birth Control. Another unintended consequence of Obamacare is agitating the Catholics with a birth control mandate that even extends to non-profit organizations. The Catholic Church doesn't want to be forced to provide something that they find morally objectionable. I believe women should have access to birth control. Conversely, birth control is not a right; it is an economic good. Birth control should be freely accessible in the marketplace, not at the bequest of a government mandate. Do the rights of the Catholic Church matter here? Yes and no. I agree with the Catholic Church, but for different reasons. They complain that their religious views are being violated, but that's not the issue per se. The real issue is that their economic rights are being violated. They should not be forced to pay for something they don't want, all the more so if they find it morally problematic.
Conclusion: The search for religious freedom is what led the Puritans and other persecuted religious minorities from the Old World to America. Religious freedom is considered sacrosanct in this country. Respecting the individual's freedom of religion means not infringing or imposing upon another individual's freedoms. Atheists can be offended or annoyed by religion, but that doesn't give the atheist the right to destroy or close down houses of worship. People were offended by Dan Cathy's anti-gay remarks, myself included, but that doesn't mean we go about banning Chick-fil-a restaurants. Boycotting is the best response to Dan Cathy and his ilk. If an evangelical Christian parent is offended that the public school teaches evolution or doesn't allow prayer in the classroom, that parent can either send their child to private school or have their child home-schooled.
To summarize my sentiment, if the government is forbidding a certain religious belief or practice when it is not infringing on other people and their rights, then the religious individual has the right to cry foul. Otherwise, we speak up and put an end to the chicanery because your freedom of conscience ends where another individual's freedoms begin. Without being aware of the difference between actual religious rights and faux claims masquerading as rights, we can lose our religious rights to either extreme, which is why we should always pay attention to our rights with due diligence and alacrity.