Discriminating for the Sake of Ending All Discrimination
But if we allow for discrimination — if we pass a law that allows for discrimination on the basis of religion — literally, we’re gonna open up a can of worms when it comes to stopping discrimination of all forms… You’re narrowly looking at a situation where if you broaden that, I just tell you — on the basis of religious freedom, being able to discriminate — something that is currently not allowed — discrimination will exist in places we never dreamed of… I mean under the guise of religious freedom, anybody can do anything. -Gary Johnson
Libertarian presidential candidate Gary Johnson believes that religious liberty is a Pandora’s box allowing any type of discrimination. California legislators agree. They are currently working on SB 1146, which would force religious institutions to stop discriminating based on belief and moral codes of conduct. For many years, cities have been instituting fairness laws that forbid business owners from discriminating based on their religious convictions. In the eyes of many in our society and state, religious liberty is merely the freedom for people to choose what church they go to on the weekend. It has little to do with the convictions that churchgoers have the rest of the week.1 For believers to act upon their convictions at other times and places is to be intolerant. What the many do not realize is that this view of religious liberty is in itself discriminatory and intolerant.
Unfortunately, Gary Johnson et. al, believe something that is self referentially absurd. To attempt to remove discrimination of all kinds is to discriminate.2 If we allow for discrimination against religious people under the guise of secular tolerance, anybody can do anything, including forcing religious people to violate their consciences. The issue at hand is not really how we can eliminate all discrimination. The real question is whether a particular discrimination is just. Is it right for the state to discriminate against people who act upon their convictions? Is it just for religious people to practice their faith within society unhindered by the state?
Faith, Practice, and Universal Negative Duties
A right is someone’s due that carries with it a universal negative duty. In other words, if I have a right to something, it is the duty of everyone else in the world not to deprive me of that something. If there is no universal negative duty, then it is not a right, but a burden.3
In the United States, people have the constitutional right to the free exercise of religion.4 However, it is against the law for a worshipper of Kali, Allah, or Satan to act upon their belief that murder is good in certain instances. This is because there is also a right to life with the universal negative duty not to murder. The free exercise of religion is bound together with other universally recognized rights. When religious institutions and business owners discriminate based on their convictions, are they denying others of their rights? It is not necessarily the case.
Businesses deny service to people who do not wear shoes. They deny service to people who have bounced checks or stolen from their businesses in the past. They deny business to people who act disorderly or violent. Businesses choose with whom they do business. It is their right. It is the right of the refused to do business elsewhere or start their own businesses. To force a business to never discriminate is to ask a business to lose money, to put the health and safety of employees and patrons in danger, and to violate the consciences of the business owner and like-minded employees. Discrimination in these cases is not a denial of rights, but denial of a burden on businesspeople.
Churches, religious institutions, and clubs have always had particular initiations, practices, and morals to which they adhere. They have always had a right to accept, discipline, expel, or correct members based on their particular convictions. It is the right of those who have been rejected to go to other institutions, or start their own religion. To force religious institutions to accept anyone, or any type of behavior, is to ask them to stop being religious. Discrimination in these cases is not a denial of rights, but denial of a burden upon religious people.
Will Free Exercise Result in Homosexual Homicide, Genocide, and Slavery?
Some, fearing that free exercise allows anything, believe that if Christians could freely exercise their religion, they would reinstitute slavery, seek to wipe other races from the earth, and stone homosexuals (I am sure that there are a few misguided people who believe such things); yet, such fears are unjustified. The genocide commanded in the Bible was against a particular people for particular sins at a particular time.5 The command no longer applies to either Jews or Christians. In contrast, Jesus commanded His apostles to make disciples of all men (genocide defeats the purpose in the New Covenant era).6 The command to execute homosexuals was in the context of punishments in the moral law of the Kingdom of Israel.7 That kingdom with its punishments is gone.8 The kingdom of God in the New Covenant calls people to repent from homosexuality, and all sinful lifestyles, but lets ultimate justice be carried out by God Himself. God allowed slavery in both Old and New Covenants; yet, He did not command it. Slavery is not a requirement of faith. It does not violate the conscience of a Jew or Christian to live without slaves. 9
Discrimination based on the belief that all discrimination must be eliminated is both self-referentially absurd and intolerant. Discrimination based on a religious moral code, when bound by universally recognized rights, is just. Free exercise of religion does not allow for any type of behavior. Forcing religious people to violate their consciences creates a burden on them, not a universal negative duty.