Freedom of Religion

Religious Liberty Isn't a 'Dog Whistle'—It's a Necessary Practice of a Free Society

Frank Bruni, New York Times columnist, doesn't seem to understand the First Amendment very well.

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Frank Bruni, constitutional scholar.
New York Times

Frank Bruni's remarkably superficial New York Times column on religious liberty can best be summed up as, "Your rights end when I want something from you." Worse yet, Bruni seems to think religious liberty is a thing that exists only inside one's skull and when singing hymns and not something that should inform anybody's behavior in public or when dealing with others, which means he doesn't actually believe in religious liberty at all. This is all in favor of shifting the goal posts from stopping the government from blocking legal recognition of gay marriage to forcing private businesses to provide services to gay couples (wedding cakes, et cetera) that they don't want to provide for religious reasons:

Baking a cake, arranging roses, running an inn: These aren't religious acts, certainly not if the establishments aren't religious enclaves and are doing business with (and even dependent on) the general public.

Their owners are routinely interacting with customers who behave in ways they deem sinful. They don't get to single out one group of supposed sinners. If they're allowed to, who's to say they'll stop at that group?

The existence of a marketplace? I'm fascinated by the idea of a store operator devoted to trying to find reasons not to do business with anybody because they're all sinners and what would happen to such a store. It might make a moderately funny Saturday Night Live sketch, but Bruni provides little actual evidence anything will actually happen, because, well, we already have this religious liberty that he seems to think is some new-fangled trick by the religious right to sneak out of some imaginary obligation to bake cakes for all comers. He actually calls "religious freedom" a dog whistle to "use as a fig leaf for intolerance."

The most flippant libertarian response would be, "Yes, and your point is …?" Less flippantly, whether Bruni is willing to accept it or not, antidiscrimination laws are an imposition on a person's liberty. This is not a controversial statement, or rather it shouldn't be. Public accommodation laws require businesses to provide goods and services to people. It makes somebody do something they might not want to do. Regardless of whether the reasons are valid, the laws constitute a loss of liberty. The actual debate is whether the government has a compelling argument to create such an imposition on the public, and here's where people disagree.

Working against Bruni, the number of cases of gay couples being denied services for their weddings are small, and there's marketplace competition willing to step in. Trying to compare the problem to the widespread, systemic racial discrimination of post-segregation era (which Bruni attempts as well) looks unserious. Who's to say they won't discriminate even more? Because they aren't discriminating even more?

And he makes that very common mistake that both liberals and even many conservatives do by asking why the government "allows" people to do certain things. He doesn't seem to grasp it's the people who grant the government the authority to do certain things. And because religious freedom is enshrined in the United States Constitution, what the government is "allowing" is what the government has been told it is not allowed to restrict. He complains about a "questionable" exemption that allows churches to engage in discriminatory hiring, prompting Ramesh Ponnuru at the National Review to explain that this religious exemption has been bolstered by a completely unanimous Supreme Court ruling.

I find myself more and more defending religious people from utterly unprincipled arguments from the gay orthodoxy, though I'm completely nonreligious and extremely gay. This screaming over a handful of bigoted businesses is a rather loathsome effort to make a moral crusade out of one's private luxury desires, and it's causing economic harm to others. The American Civil Liberties Union suing some little florist shop for not serving a gay wedding is the absolute definition of "punching down." It's a result of confusing the right to demand dignity via equal treatment under the law, something everybody's entitled to, with a demand that private citizens and businesses also treat them with dignity, something nobody has a right to at all.

Bruni complains at the beginning of his column that America can't seem to work out this "separation of church and state business" as he calls it, and then without batting an eye, pivots to demanding that the government force religious people to provide goods and services to others regardless of what their faith tells them. Bruni is part of the problem. I doubt he will ever understand that the government telling citizens the extent that they may allow religion to inform their choices is a violation of this separation he mentions, let alone an encroachment on liberty. Actually, he probably does grasp that it's an encroachment on liberty. He just thinks that's actually a good outcome.

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  1. Everything would get so much easier if we had a free society, one without a law or regulation for every possible situation. We’re more about what we’re permitted to do than free these days, and we are a lesser society and a lesser people for allowing this to happen.

  2. Awesome column Mr. Shackford. I agree with all.

  3. Baking a cake, arranging roses, running an inn: These aren’t religious acts,

    According to who? Bruni? Who appointed him God?

    1. “These aren’t religious acts”

      Even if they aren’t – the right not to do business with somebody is already covered by freedom of contract, freedom of association and private property rights.

      So-called “public accomodation” laws violate all of tose – and freedom of religion too.

  4. “If you can hear the dog whistle, you’re a dog.”

  5. Baking a cake, arranging roses, running an inn: These aren’t religious acts, certainly not if the establishments aren’t religious enclaves and are doing business with (and even dependent on) the general public.

    Apparently Frank is the final arbiter about what is and what is not a “religious act”. Bruni is not only a totalitarian, he makes up for it by being an idiot.

    1. You are right. And Bruni is an arrogant idiot. But unfortunately even most people claiming to defend religious liberty do the same thing. If you have to go to court and convince someone that your religious practice is sincere, then you are not free. One very clear example of this is the prosecution of drug charges against people who claim that the drugs they were caught with were religious sacraments.

    2. Someone should tell all those Jewish people in my neighborhood that working (or not working) is not a religious act. Particularly on Saturday.

  6. Trying to compare the problem to the widespread, systemic racial discrimination of post-segregation era (which Bruni attempts as well) looks unserious.

    No shit, considering that the Almighty State, that he looks to now for succor, actually mandated racial discrimination pre-segregation.

    Which makes me wonder: Just how “widespread and systemic” was racial discrimination post-segregation and post Jim Crow, anyway?

  7. I know I’ve said this before, but I don’t think you could fit a sheet of onionskin paper between the SSM movement and the “I want cake” movement.

    1. I’ve said this before:

      So what? That has nothing to do with the merits of any arguments for or against SSM or public accommodation laws and is a silly thing to bring up here where you are interacting with lots of people who are quite firmly for SSM and quite firmly against the “I want my cake made by someone who hates me” side.

      1. Yes it does. If SSM is just a crowbar that will be used to take away our freedoms, then you shouldn’t support it.

        1. I don’t need to get into this again. But briefly, it isn’t just that. And it doesn’t matter whether I support it or not. It is what is happening and you can’t get the toothpaste back in the tube. So we should probably stop having this pointless argument.

          1. It doesn’t matter. It is that. So pretending it isn’t, won’t do any good. You want SSM, change the laws to make having it not infringe on other people’s rights. Otherwise, just admit you don’t care about other people’s rights and just want your pony.

            1. Why do you think that I can do anything about the laws?

              For fuck’s sake, John, almost nothing that agrees with my political philosophy is going to happen. Why the fuck should I get all realpolitik about gay marriage? I’m just saying what I think is right, not promoting the legislation that would force people to bake cakes for fags. I think that if the government is going to recognize marriage at all, they should recognize what exists, including same sex marriages, marriages to sisters, whatever, rather than defining what it is. I also think that people should have the right to refuse to do business with whomever they want. The end. No contradiction. I’m not an activist. I’m not advocating for anything, just commenting. I am not obliged to think strategically about this.

            2. You’re quite obviously employing an excuse for not holding the correct opinion on SSM, one freshman students of logic know as the slippery slope. Not that you’re wrong to think that increased legal equality for gays might mean they get protection from antidiscrimination laws (where they don’t already). But you should either be against all antidiscrimation law or explain why they should protect blacks and religious minorities but shouldn’t bother with gays. Zeb is correct. These are two separate issues. You are allowed (actually required) to have separate opinions about them.

              1. Re: Tony,

                But you should either be against all antidiscrimation law or explain why they should protect blacks and religious minorities but shouldn’t bother with gays.

                That is a perfectly reasonable petition from your part, Tony. You’re absolutely right in pointing out the inconsistent application of logic when it comes to discrimination and discrimination laws. Either anti-discrimination laws are bad or they are good, and so either they should be repealed in toto or applied equally.

                The answer to the question: should gays be protected with the power of the state against discrimination is NO. Anti-discrimination laws exist because of the assumption that people have a right to things that do NOT belong to them: schooling, or a service, or a cake, or a job. Those things are procured through voluntary exchange, not by force or as a matter of right. However, the premise behind anti-discrimination laws is that, somehow, a person is being deprived of something that is his or hers by right, presumably for some trivial characteristic possessed by that person. This is nonsensical for the reason explained above: people procure goods or services produced by others ONLY through voluntary exchange. Otherwise, it is not procurement but thievery.

                1. When the state obligates one of the parties to deliver a service or good under the threat of prosecution, the voluntary aspect of exchange ceases to exist; the actions of the State are equatable to extortion or thievery.

          2. The same people that say Lincoln should have left million in slavery because the right to secession was more important, now claim that if SSM means stomping on people’s religious rights, well that is just too bad and it is not their fault and they don’t support that part of it. Too bad. You can’t just support one part of it. If you support SSM, you necessarily support the implications of it. If you don’t, then condition your support on changing those implications, which I don’t see anyone doing.

            Ultimately, no one likes the people in the wedding cake case and thus they don’t fucking care. Gays are popular and those people are not. Someday when they come for you and you are not so popular, at least have the decency to understand you helped make it happen.

            1. at least have the decency to understand you helped make it happen.

              John, I like you. I really do. But that is fucking stupid.

              Sorry, I know I said I didn’t want to get into it. But honestly, how the fuck did I help? Are the federal courts looking through Reason comments and my personal conversations to see if I approve of gay marriage and basing their decisions on that? Because that is as far as my help to any “SSM movement” has gone.

        2. If SSM is just a crowbar that will be used to take away our freedoms, then you shouldn’t support it.

          The problem is what if SSM is a legitimate expectation in its own right? If arguments for a strong national defense were a crowbar for foreign advanturism, would that mean we shouldn’t pursue a strong national defense? Tying the two issues together, given most people here support SSM and oppose public accommodation isn’t a particularly convincing argument.

  8. I’m fascinated by the idea of a store operator devoted to trying to find reasons not to do business with anybody because they’re all sinners and what would happen to such a store. It might make a moderately funny Saturday Night Live sketch

    No sketch for *you*!

  9. He doesn’t seem to grasp it’s the people who grant the government the authority to do certain things.

    *rolls eyes*

    Oh, right, through the social contract.

    *rolls eyes in other direction*

    *ow my eyes hurt*

  10. “Your rights end when I want something from you.”

    The big problem is that is what the vast majority of people of most political stripes believe. True religious freedom would require getting rid of any and all victimless crime laws for a start. If religious freedom is to exist at all, you must take people at their word no matter what they claim their religion entails. Saying that someone’s religion can’t be smoking crack and banging whores is just as much of an infringement as saying someone has to bake a cake for some homos. If government makes any judgement at all about what is or is not legitimate religious practice, then there is no such thing as freedom of religion. Freedom of religion can only exist as part of more general freedom. And there are pretty much no mainstream politicians who want that.

    1. It’s not talked about a lot, but religious freedom is one of the more restricted of the “fundamental” freedoms, for good reason. You can’t break the law in the name of religion except in very specific circumstances. Obviously if we don’t want to encourage theocracy in this country we have to let secular law be supreme, and any religious exemptions (acquiesced to in the name of free expression) narrowly granted.

      1. You also can’t make laws that restrict religious exercise, unless you use the least restrictive means and it serves a compelling government interest.

      2. Obviously if we don’t want to encourage theocracy in this country we have to let secular law be supreme, and any religious exemptions (acquiesced to in the name of free expression) narrowly granted.

        The very same constitutional amendment that guarantees freedom of religion also guarantees freedom from theocracy.

        Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…

  11. I’m completely nonreligious and extremely gay

    Um… what did you have to do to earn the qualifier “extremely”?

    1. I think it involves glitter and general fabulousness, but I could be wrong.

      1. Last night I bought a new dog bed and made sure it matched the decor for the room it’s going in.

        1. OK, that’s pretty gay. But I’m not sure about extremely.

          1. “Aside from having sex with other men, I’d say being in The Finer Things Club is the gayest thing about me.”

        2. OK, you earned it.

    2. I think it means Scott will not be having a threesome with you and your wife/girlfriend/female friend with benefits.

  12. Usually when you see a picture like that, you think,”did someone shoot-up another school?”

    1. More for a story involving a goat, a large s3x toy and a Sunday School class.

      1. I stand corrected.

  13. I feel that a lot of people are very unacquainted with the Protestant Work Ethic. This could be the twenty plus years of church and religious training, but I was always taught that what ever I do was 1) for the glory of God and 2) an act of worship. Granted, I may be serving someone who disagrees with everything I stand for, but that doesn’t mean that I’m not going to do my best to make sure that it’s perfect. It’s an ideal to aspire to and live by.

    1. I somehow ended up with a protestant work ethic without ever believing in the glory of God or understanding why anyone would worship anything.

      1. Zen Buddhism also teaches one to work religiously. The Japanese also have a strong work ethic that is related to religion.

  14. Do liberals support allowing gay or bisexual men to force male prostitutes to have sex with them? Is it not discrimination for a male prostitute to deny their services to a male customer?

    Just and interesting thought experiment.

    1. I was thinking along the same lines as well… Since labor and services can be compelled, does it mean raping prostitutes is OK?

    2. Of course compliance with the “Free American Gay Sex act” would be voluntary. You would have the choice of going to prison, instead.

  15. It might make a moderately funny Saturday Night Live sketch

    IOW the greatest SNL sketch ever made.

  16. He doesn’t seem to grasp it’s the people who grant the government the authority to do certain things.

    Ah, the good old days, the salad days.

    I miss granting authority.

  17. Christ, I’m literally encased by the religious. Hemmed in on all sides by the worshiper, seeker, and proclaimer. From family to multitudes of acquaintances to a very religious general society around here the religion is thick as mud and just as heavy.

    People continually try to get me in bed with their religion with shitty pick-up lines.

    That said, I’m not interested in seeing progressives use the malevolence of government and their police forces to shut the mouths of the religious.

    I would like the religious to learn from me and stop using the malevolence of government and their police forces to force morality down my throat. It hasn’t work for several decades and it ain’t ever going to work.

    Absolutely not a fucking reason in the world why godless heathens who enjoy living it up can’t live in peace with those who like Jesus, Mary, and Marx.

    What a trip.

  18. As an atheist, I find Religious Liberty quite essential and not to be qualified.

    My right NOT to attend a church (or Mosque) is directly linked to the right of someone else not to perform an act against his/her conscience.

  19. He doesn’t seem to grasp it’s the people who grant the government the authority to do certain things.

    And the people have granted government the authority to make public accommodation laws. You don’t get carte blanche when you run a business. There are lots of things you can’t do, like murder your customers. Forbidding discrimination was seen as necessary to deal with the social problem of discrimination. People’s freedom to participate in the commerce of their own communities was limited, depending on what color their skin was. That is a meaningful freedom. Libertarians ought to stop claiming they have a monopoly on the definition of that word when all they really care about is the freedom of a select few types of people–such as business owners. Maximize that, and fuck everyone else.

    1. The people jad no authority to grant the government the power to enforce public accommodation laws, especially in the area where it infringes on religious liberty. Even if you argue the law, the religious freedom.clause of the 1st amendment is the higher law.

      1. In 2 years, Tony will be up in arms, screaming that “the people” never granted the corrupt republican administration power to enforce laws in ways that “so obviously violate the spirit and the text of our sacred Constitution.”

      2. I’m not saying it’s not controversial, and some respectable people think the balance should favor religious expression over freedom from discrimination. (These people tend to be those who never will experience discrimination.) There is an argument for tightening up the definition of a public accommodation to exclude businesses such as photography studios and bakers. There is also the argument that discriminating in your place of business is not a matter of religious belief, but of harmful action (you can continue being a bigot inside your head all you want). I personally favor antidiscrimination laws over the freedom to act on bigotry, because I think it has more social utility.

        1. You can easily spot a lefty by their use of freedom from instead of freedom to.

        2. ” I personally favor antidiscrimination laws over the freedom to act on bigotry, because I think it has more social utility.”

          I know you think there is social utility in making your ideology the only one that is legal to practice, but we know you would love to live in Airstrip One.

    2. Tony! You’re comparing murdering a customer to not being willing to sell them a cake.

      One act deprives the person of the most precious of rights – the right to life.

      The other deprives the person of the right to… Oh, it deprives them of no rights at all.

      Unless you believe that it’s the other way around and you think that someone has the right to put a gun to someone’s head to force them to make a cake for them. Which of course sounds fantastical and absurd. Except that you actually do believe that.

      1. I will limit my advocacy to saying that whatever statutes say about, for example, racial discrimination in the commercial sphere should extend to sexual orientation. I’m open to being convinced that the definition of “public accommodation” should be dialed back to include only things like hotels, theaters, and restaurants as was probably initially intended. But as there is exactly zero social utility for encouraging religious business owners to discriminate against minorities, it’s not high on my list of priorities for freedoms to protect at the expense of others. Because there is a freedom being denied to the person being discriminated against–the freedom to participate in the commerce of his community as fully as someone in a favored group.

        1. Pray tell, how do you measure utility? Is there some type of special utility-o-meter that you waive about that tells you which rights/privileges/laws bring about more utility?

        2. Freedom to participate in commerce? It isn’t commerce when one side is compelled to participate. We just can’t get passed the idea that no one has a right to a cake made by someone else.

          Of course, we don’t see “freedom” the same way. You actually believe that people should be able to use force to get people to work for them, backed up by the police power of the state. That is the opposite of freedom. Philosophically, that is slavery.

          We are ships passing in the night. You casually deploy “social utility” as a justification for using force against people. For me liberty is an end in itself, and social utility is utterly irrelevant when it comes to people having the liberty to live according to their conscience.

    3. Heavily Democratic Chicago is full of busy nightclubs that won’t let you in for any number of reasons that have nothing to do with skin color.

      And since black folks, specifically, haven’t been discriminated against by businesses for decades- why the fuck is this on the radar like it is still an issue?

      You have your own selection bias, bro.

      1. Businesses have a right to deny service for any number of reasons, as long as those reasons aren’t among those listed in relevant legislation.

        1. That is not a right then, it is permission. Which is the problem with your understanding of “rights”.

  20. In the name of separation of church and state Bruni wants his version of moral behavior to be estsblished as the only type that can be publicly practiced. The cognitive dissonance can shatter glass for miles.

  21. I’m more disturbed by this passage:

    Huckabee has perfected a stew of homophobia and puerility, on display in a new book of his that sounds like a collection of recipes by Paula Deen expressly for the N.R.A.: “God, Guns, Grits and Gravy.” With three copies you get a free sandwich combo at Chick-fil-A.

    Kidding.

    In “God, Guns, Grits and Gravy” (it bears repeating), he bemoans the acquiescence of air travelers to invasive screenings with this dignified locution: “Bend over and take it like a prisoner.” In fact that’s the title of a whole chapter, with an exclamation point added. This, mind you, is from someone who once governed a state (Arkansas) and won the 2008 Republican caucus in Iowa.

    Is that supposed to be homophobia or puerility?

    1. Implying that man-on-man rape is bad is homophobic, I guess.

  22. You know, part of me really hopes there’s a devil and a hell. That way, Frank Bruni could spend eternity forced into the company of the Westboro Baptist Church.

  23. Baking a cake, arranging roses, running an inn: These aren’t religious acts, certainly not if the establishments aren’t religious enclaves and are doing business with (and even dependent on) the general public.

    Baking someone a wedding cake is an act of expression. A wedding cake isn’t just some random cake. It symbolizes a relationship that is deeply entwined with religion. A wedding cake may even have literal writing on it saying “Congratulations John and Mark”, or have two grooms on the top symbolizing a gay wedding.

    I doubt that anyone would support forcing a religious person to SAY “Congratulations on your Gay Wedding John and Mark”, so why do they support forcing them to write it. Or for that matter, symbolically express support for it by baking a cake that honors it?

  24. I haven’t heard of any gay or lesbian person being denied a birthday cake.

  25. Sammy Doomday isnt goign to liek that at all man.

    http://www.Web-Privacy.tk

  26. So if religious liberty should be restricted based on the whims of a constituency, then we can start cracking down on Muslims. Good to know.

    1. No, only Christianists can be homophobic just as only whites can be racist.

  27. The author of this is gay? Wow, scary. How about the Colorado funeral home stopping a lesbian womans’ funeral 10 minutes before it starts (after taking her families money, cause what’s a Church without $$$?) because of affectionate pictures between her and her wife? Oh, right! “Religious liberty”. So Christ-like. I say LGBTs should stay far away from Christians in general to avoid any conflict. Gay Christians, I feel sorry for you…

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