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What Happens When Different Rights Conflict With Each Other?

· By James Morgan · From pages 36 of the print edition

The Arizona legislature recently passed a bill which slightly altered its 15-year old "Religious Freedom Restoration Act," an act modelled on a 1993 federal law of the same name. This alteration simply brought it more into line with the federal law, among the supporters of which were Bill Clinton and Charles Schumer. Schumer correctly called religious freedom "a basic right of a free people." But religious freedom is more than what people do in certain buildings on Sunday mornings. To be meaningful, it must include the public application of one's religious convictions to all aspects of one's life. Religion should not be kept in the closet.

The Arizona bill's key provision was that the state could "substantially burden a person's exercise of religion" only – ONLY - when there was "a compelling governmental interest." That is also in the federal law.

It is instructive that the first words in the first amendment of the Bill of Rights are: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." No freedom is absolute but, insofar as possible, religious rights should come first whenever they conflict with other rights.

Outraged progressives called the Arizona bill "anti-gay" because the test case involved two lesbians who objected to the fact that a baker refused, on religious grounds, to bake a wedding cake for them. His religious rights, they said, were trumped by their right to have him bake their cake. They didn't just want a cake (which they could have gotten anywhere). They wanted to force him to bake it. Is their politically-motivated desire to have that particular individual bake their cake more important than his freedom of religion? Was there really a "compelling governmental interest" in forcing that man to violate his conscience that way?

What of the New Mexico photographer who likewise was forced to violate his religious views by photographing a gay wedding against his will? The Arizona baker at least wouldn't have had to attend the ceremony but the New Mexico photographer actually had to be there. He was forced to actively participate in the event. What compelling governmental interest required that? What of Catholic-owned pharmacies being required to sell contraceptives when anyone wanting contraceptives can just go to the pharmacy down the block? Compelling governmental interest?

What of the doctors in California who were successfully sued for declining to perform artificial insemination on a woman in a same-sex relationship? Compelling governmental interest? Owners of a bed-and-breakfast in Illinois who declined to rent their facility for a same-sex wedding were sued for violating the state's nondiscrimination law. Note that they did not refuse to let the gay couple stay in the B&B. They merely declined to host the ceremony. Compelling governmental interest? No. The real issue in Arizona is whether the government has the authority to negate our religious rights. Apparently, alas, it does. The bill was not anti-gay. It was pro-conscience. Could it have been abused? Sure, but so can any other law. The key point is this: if government can routinely coerce people into actively violating their deeply-held religious convictions, then our constitutionally-protected "freedom of religion" is a sham.

Progressives hold the perverse view that separation of church and state requires a complete stripping of religion from public life. Leave it in church, they tell believers. Your views have no place in public. Sadly, courts too often have agreed and Governor Jan Brewer was pressured into vetoing the Arizona bill. The baker had violated no one's rights, but his fundamental rights were declared to be null and void.

This is just the latest round in the ongoing progressive war on religion, specifically on Christianity (think Catholic Charities, Chick-Fil-A, and Hobby Lobby, among others). How ironic (but not surprising) that the cause of gay rights, initially a demand for tolerance, is now being used to push believers into the closet.