Tuesday, December 12, 2017

When the rights of one person conflict with the rights of another

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof …” So reads, in part, the First Amendment to the United States Constitution.

The amendment forbids government from acting to promote or establish any religion, and from acting to discourage or ban religious behavior. In essence, government should have a hands-off policy where the practice of religious activities, or abstinence from them is concerned.

No constitutionally guaranteed right is absolute, however, and practitioners of a religion who commit felonies – such as assault, robbery, homicide, rape, kidnapping, etc. – or misdemeanors because of their beliefs will suffer the same consequences as other law breakers.

When religious beliefs come up against other rights, however, problems may arise. One such issue is whether a religious person can be, or should be, forced to do something that is against his or her religious beliefs when not doing so would result in the violation of the rights of another person or other persons.

The United States Supreme Court is currently dealing with just such a case. The Court has before it the case of a Colorado baker who refused to make a wedding cake for a gay couple. The Court must decide how the religious rights of the baker stack up against the couple’s right to equal treatment under the law.

But should someone have his or her rights denied because they are in conflict with someone else’s rights? It is a sticky issue.

A gay couple that has previously been a customer of Mary’s Delights bakery asks her to bake a cake for their wedding, but Mary says that homosexuality goes against the beliefs of her religion and therefore she cannot participate in this wedding by baking the cake. Mary suggests they find another baker for the cake. Perhaps Bob’s bakery? Bob has baked cakes for gay weddings before, she said.

But the couple feels their rights have been violated. Gay marriage is legal and they believe that by refusing to participate in their marriage, Mary has discriminated against them, so they take action against Mary.

However, discrimination is a common and natural part of living; people discriminate against things and people everyday. They choose to buy an SUV instead of a pickup. Or vice versa. We order seafood instead of a steak. We decide to order a cake from Mary’s Delights instead of Joe’s Bakery.

Do we not occasionally see a sign on the entrance to a commercial establishment that reads: “No shirt. No shoes. No service?” Isn’t that discrimination against shirtless or unshod people?

All of these are matters of discrimination, which is merely a matter of making conscious choices of one thing over other things. It is a question of degree, and even then not every act constitutes actionable discrimination.

Years ago, businesses not infrequently had signs on their doors or windows reading: “We reserve the right to refuse service to anyone.” The right of the proprietor to control their business was unquestioned. If they wanted to serve only black people, or only white people, or only Christians or Muslims or atheists, why is that wrong? Or if they want to not serve blue-eyed blondes, or short men, why is that wrong?

As long as services are available to everyone through some provider, why is it necessary that every provider be required to serve everyone?

Carried to its illogical extreme, the owner of a French restaurant could be accused of discrimination by people whose heritage is from another country because the restaurant doesn’t serve German, Scottish, Italian or Mexican food.

America is founded on principles of freedom and guaranteed rights. We have the right to vote for whomever we choose, and to not vote for other candidates. We have the right to associate with whomever we like and to not associate with those with whom we choose not to associate.

People have the right to invest thousands of dollars in their businesses, but if they are religious, they can be forced to violate the tenets of their religion, and their right to religious freedom can be denied, in this case only because someone wants to force them to acquiesce to their wishes rather than go find another baker.

It is no accident that the First Amendment guarantees the right to religion, free speech, a free press, to peaceably assemble, and to petition for a governmental redress of grievances. It is because these were thought to be most important of those basic rights by the Founders. And, it is no accident that first among those items in the first of the amendments is religion.

The American character has been such that when things don’t go the way we want or expect, we work around the problem, whenever possible. So when one service provider is unable or unwilling to accommodate our wishes, we simply find another one who will fill the order. A baker with a religious objection to supporting a gay wedding should not be a problem for anyone. And it should not be a matter to be decided by the United States Supreme Court. Or of any U.S. court.

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