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February 20, 2014 4:21 PM Bakers of Conscience

By Ed Kilgore

At the end of a solid piece by MoJo’s Dana Liebelson on the coordinated nature of the sudden effusion of “religious liberty” legislation being introduced in Republican-controlled states, there is an interesting quote from gay rights advocate Evan Hurst:

“This seems to be a concerted Hail Mary campaign to carve out special rights for religious conservatives so that they don’t have to play by the same rules as everyone else does,” says Hurst, from Truth Wins Out. “In this new up-is-down world, anti-gay religious folks are ‘practicing their faith’ when they’re baking cakes or renting out hotel rooms to travelers. On the ground, [these bills] hurt real, live LGBT people.”

The question of what constitutes “practicing faith” is at the center of a lot of the dispute over the alleged “religious liberty” (and hence First Amendment) interests involved in enforcing non-discrimination laws (or for that matter, laws making it legal to purchase contraceptives or offer abortion services).

It is not, I would submit, necessarily an easy question, either. Yes, the common conservative argument that anything other than a blanket exemption for “faith-based” civil disobedience—and a deference to religious arguments in debates over entirely secular topics—means constricting believers to catacombs where they tremble in fear is ludicrous. Nobody is talking about suppressing conservative speech, no matter how obnoxious and (in my view at least) un-Christian. And vaguely alluding to “the public square” as a place for religious expression doesn’t mean much either, other than that those monotonously using this phrase have been exposed at some point to the vast influence of Richard John Neuhaus, who himself often seemed to view the very existence of religiously offensive laws and habits to represent persecution or at least excuse revolutionary defiance of the secular “regime.”

But unless we are prepared to rescind past concessions to the Amish over mandatory school attendence laws, or to Christian pacifists over the draft, or to Jehovah’s Witnesses over oath-taking—just to cite a few major examples—it’s not enough either to just wave away any religiously-based claims for special treatment as laughable or as offensive to American traditions.

In turn, though, these precedents all involved long periods of negotiation between secular and religious authorities to carve out exceptions and authenticate those who took advantage of them. No state passed laws exempting anyone who claimed a religious objection to school attendance laws to yank the kids out of school, no questions asked. In all cases, those claiming exemptions had to establish, via religious authorities, that the laws in question threatened the viability of their communities (viz. the Amish) or required them to commit grievous sins (viz. “conscientious objectors” to participation in the military).

The legitimacy of such claims aren’t always that clear from the religious as well as the secular perspective; that’s why there was such a large and inconclusive conflict in the early Christian Church over consumption of meat sacrificed in pagan rituals.

I suppose the famous “pharmacists of conscience” who refuse to dispense what they consider “abortifacients,” and who also believe abortion is homicide in the biblical sense, have a plausible argument that they are being forced to violate their consciences on a matter of grave moral importance, though they aren’t the ones committing the sins. But those who refuse to sell a properly prescribed oral contraceptive to a teenager because they frown on their “immoral” behavior? They are at most passive and essentially meaningless intermediaries in the supposed transgressions of doctors and patients, not to mention meddling busybodies.

But it’s a bit of a stretch to talk of “bakers of conscience” or “travel agents of conscience.” Are civil laws regarding marriage so central to religious faith that acknowledging the fact that a same-sex marriage is legal somehow makes the baker or the wedding planner or the travel agent complicit in “evil?” Not unless (a) you are part of a faith community (e.g., High Calvinists) that holds obedience to God requires striving for everyone’s obedience to God; or (b) you subscribe to the increasingly ludicrous idea that same-sex marriage will “destroy” heterosexual marriage through some bizarre process of disrespect.

I’m sure I’m not the only one who suspects the baker who doesn’t want to put two men on the wedding cake is motivated by an “ick factor” of simple bigotry rather than any agonized crisis of conscience or faith. And I’m not at all reluctant to say that bakers who do feel that way might want to avoid the near occasion of sin by going into a different line of work, just as a pacifist probably should not enter the armed forces even if the odds of being in combat are low.

But a pluralistic society cannot simply accept blanket exemptions from duly enacted laws because would-be lawbreakers claim religious sanction. And refusing them is hardly an act of regression, and certainly don’t force religious people to cower in their homes and churches.

Ed Kilgore is a contributing writer to the Washington Monthly. He is managing editor for The Democratic Strategist and a senior fellow at the Progressive Policy Institute. Find him on Twitter: @ed_kilgore.

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