Should government officials be allowed to deny service to same-sex couples based on religious principles?
That claim has become a veritable chorus as leading state and federal politicians and many religious leaders seek protection for government officials in the wake of the United States Supreme Court's same-sex marriage decision. But what does religious liberty require, and what is the best way to protect it?
Contrary to the most apocalyptic claims, religious liberty is alive and well. We are one of the most religious countries in the Western world. We got that way following a traditional balance: Religion would not be singled out, but everyone had to play by the same rules that applied to everyone.
No government can force us to affirm or deny any religious belief, punish religious doctrines it believes to be false, impose special disabilities due to the religious views or religious status, or lend its power in controversies over religious authority or dogma. Our Constitution's framers wanted to avoid Europe's religious wars and persecutions by balancing the protection of individual conscience with the need for democratic tolerance.
Protection of religious belief is absolute, but we have stopped short of allowing people to use religion to deny another person's rights. For example, the Supreme Court allowed a pacifist to collect unemployment compensation when he quit his job in a munitions factory. According to the court, the individual should not be denied a public benefit because he followed the dictates of his conscience. In the recent Hobby Lobby case, no one was denied the insurance benefits the law required. The case only imposed a burden on the government to provide those benefits without involving Hobby Lobby.
That traditional balance is at stake, however, if we expand religious accommodations to allow public officials to deny same-sex couples the rights, goods and services to which they are entitled. If we allowed government officials to refuse to follow or enforce laws based on their religious beliefs, we would be, in the words of Justice Antonin Scalia, "courting anarchy."
As the United States Supreme Court said over 100 years ago, this "would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself." This turns the rule of law on its head. Instead of the law applying equally to everyone, we would allow each government employee to pick and choose which laws to enforce and which to ignore.
The unintended consequences of broad religious exemptions are considerable. Imagine if government employees could opt out of enforcing or following any law that may conflict with their religious beliefs. The list is endless and breathtaking: the payment of taxes, all health and safety regulations, animal-cruelty laws, environmental-protection laws and regulations, child-neglect laws, drug laws, traffic laws, minimum-wage and maximum-hour laws, laws prohibiting discrimination on the basis of race, gender, and, yes, even religion.
This is especially important when it comes to issuing marriage licenses.
The government can only act and speak through its employees. Allowing a religious accommodation to the issuance of a marriage license would establish the clerk's religion as the official religion of the state. Moreover, a marriage license is a statement from the state acknowledging the civil legality of marriage. If a clerk refuses to issue the license, it is as though the state is saying that it refuses to follow the law as set out by the United States Supreme Court.
We should respect clerks who, because of their sincere religious beliefs, believe that they cannot issue the license. Their proper course, however, is to leave their jobs, not to seek to avoid their legal duties. And, because of the court's prior religious-liberty decisions, they are eligible for unemployment compensation even though they left their jobs "voluntarily."
Religions remain free to advocate, teach, and practice their beliefs. None of them will be forced to perform a same-sex marriage. This is as it always has been and it is not going to change.
For example, the Catholic Church has not been forced to change its beliefs just because the state allows divorce and remarriage. And no Catholic Church has been forced to marry divorced couples. No church, synagogue or mosque has been punished because it refused to perform an interfaith marriage.
This is the law and it will remain the law. To suggest otherwise is demagoguery of the worst kind.
We cannot confuse disagreement with discrimination. Society is changing and many people feel like the ground is moving under their feet. These changes don't mean that there is an attack on religion, however.
John M.A. DiPippa is Dean Emeritus and Distinguished Professor of Law and Public Policy at the University of Arkansas at Little Rock's William H. Bowen School of Law. His views are his own and do not necessarily reflect those of his employer.
Editorial on 07/13/2015