…Mistaken About Her Rights.
Feel free to play this while you read:
I would recommend that, anytime someone argues that they have the right to violate someone else’s rights in the name of religion, that you refer them to the First Continental Congress and the drafting of the Constitution. The revisions from those sessions show, pretty affirmatively, that the founding fathers of this great country resoundingly rejected the idea that religion has any power to interfere with public or private rights. Short of allowing you to decide how to live your life, so long as your decisions do not directly affect others, your religion grants you exactly zero powers. This is for our protection: Christians, Jews, Muslims, atheists, Hindus, Buddhists, etc.
What usually gets mixed up in this whole discussion is the notion that we are a Christian nation. That is both true and false, because it is such a broad, meaningless statement. What is true is that most of our founders practiced some strand of Christianity; however, very few of them actually agreed on anything, from the divinity of Jesus to the afterlife to how to live here on Earth. This is significant, because when someone says we are a “Christian” nation, whose “Christianity” do they mean? Usually it’s their own, but not a single founding father practiced anything remotely resembling the more mainstream strands of Christianity in existence today. Further, that entire line of thought negates the fact (not opinion–I mean fact) that all references to religious law were intentionally removed from the documents drafted.
But this is not to say that we are an “atheist” nation or that we were founded on a-religious ideals. There is a special place for religion in this country. Even a cursory review of the revisions at the First Continental Congress show clearly that the founders struggled with how to protect religion from the State. Weaker language was thrown out in favor of stronger language seeking to prevent the State from being able to curb religion, even fringe religion. The Moors are even alluded to, which is a reference to Islam, as something to be protected. But when push comes to shove, rights granted to the public at large were set up to win out against private religious rights. Period.
You can refrain from attending gay weddings based on your personal beliefs all you want, but you cannot prevent others from marrying. It took a long time to get here, but thankfully we’ve done it. Sadly, though, we’re seeing other problems spring up. Fining or jailing a baker for refusing to bake a cake for a gay wedding is absurd and flies in the face of religious freedom. The baker is not infringing on the gay couple’s rights; the gay couple (or more pointedly, the State) is infringing on the baker’s rights.
Of course, the issue of the baker refusing to bake a cake conjures analogies to civil rights issues surrounding race, but these things are not accurate analogies. First, race does not exist, whereas homosexuality does. Second, even if race did exist, it would be something that someone “is” but not something that someone “does,” whereas homosexuality is either (a) both something that a person “is” and “does,” or (b) only something that a person “does” but not something that a person “is.” The reason that I offer this distinction is because the scientific community has no answer for whether homosexuality is genetic or whether it is a choice, and I don’t pretend to know. I’ve heard arguments for both positions, from hetero- and homosexual persons, so I’ll leave it at that for now. Feel free to educate me if you see fit, but this digression ends here.
These distinctions are important, because discriminating against someone for something over which they cannot control (race, being something that you simply “are” — or not, since it is man-made concept) is different than discriminating against someone for something they can control (the act of gay marriage). I’m not arguing that either form of discrimination is more or less ugly and foolish; I’m just pointing out that there is a distinction. And this distinction should be recognized when considering the balance of rights between private citizens seeking to live how they please.
Also, there is another, more pragmatic approach, which exists separate from the academic musings about the debate surrounding the power struggle between religion and State. This pragmatic approach says that, because forcing the baker to bake the cake causes the baker to suffer more than allowing the baker to refuse to bake the cake causes the gay couple to suffer, the lesser of evil approaches dictates that the baker should be allowed to refuse to bake the cake. This is true because the gay couple can find someone else to bake the cake, no problem. And who wants someone to bake you a cake for your wedding when they really, really don’t want to? Isn’t that weirdly spiteful and like a bad omen or something?
At this point, you might wonder how far from the title topic I plan to traverse. But aha! I’ve not gone far at all. Because the point of the baker discussion is to juxtapose it against the situation with the clerk. The difference, here, is the State’s involvement. The baker was acting in a private, for-profit capacity; this is an arena where personal religious freedom has strong game. The clerk, however, was acting in a public, non-profit government capacity; this is the number one arena for weakness of religious freedom.
So, in conclusion, the Kentucky Clerk is mistaken about her right to refuse to issue marriage certificates at her government job. Religious freedom does not trump Constitutionally-guaranteed rights in any sphere, much less the sphere involving State actions. The reason we know this is because (a) the courts say so, and (b) our founding documents and the processes by which they were drafted show us that such was not contemplated when our great nation was created.