THE BLOG
02/02/2015 03:10 pm ET Updated Dec 06, 2017

Religious Freedom Gives Me the Constitutional Right to Violate Your Constitutional Rights, Right?

Conservatives just love the Constitution -- or at least they say they do. The thing is that they don't seem to have any idea how it works. At least that's a more charitable explanation than saying they don't care how the Constitution works and merely use it as a fig leaf while they undermine the rights it guarantees. And I'm a charitable kind of guy, so I won't say that.

When the Supreme Court recognizes that marriage equality is a constitutionally guaranteed right, one part of the battle will be over. But conservatives have already begun to fight on another front, namely how to implement (or not) that right. Republican state legislators in Texas, Oklahoma, Utah, and both Carolinas (South Carolina was first!) have this year proposed various bills that would give government officials who perform civil marriage ceremonies and/or issue marriage licenses and other related documents the ability to refuse same-sex couples if it would violate a "sincerely held religious belief."

Additionally, Oklahoma State Rep. Todd Russ proposed to take civil officials out of the marriage business altogether and force prospective couples to be married by "an ordained or authorized preacher or minister of the Gospel, priest or other ecclesiastical dignitary of any denomination who has been duly ordained or authorized by the church to which he or she belongs to preach the Gospel, or a rabbi." Not a Christian or a Jew? Out of luck, apparently, although Rep. Russ says anyone else who wants to get married can "fil[e] an affidavit of common law marriage with the court clerk." Small problem: The state of Oklahoma doesn't recognize common-law marriages, although courts have recognized some on a case-by-case basis. I'm sure Hindu and atheist couples will be just fine with that.

Even if they were adopted, such laws almost certainly would be struck down as unconstitutional. Nevertheless, they are instructive because of what they say about the conservative concept of religious freedom. John J. Kallam is a Baptist minister in North Carolina. He also served for 12 years as a magistrate judge in Rockingham County, in which capacity he officiated at numerous civil marriage ceremonies. Last October he quit after he was told he could not "opt out" of performing same-sex marriages.

"I felt, and still feel, that that is stepping on my right of religious freedom," said Kallam. He brought up the matter of a Sikh soldier in the U.S. Army who successfully argued that religious freedom gave him the right to wear a turban and grow a beard, as mandated by his faith. Kallam asked why he should not have the freedom to act on the basis of his faith as well.

Let's take Kallam's argument seriously for a moment, in order to demonstrate why it is wrong to conflate these two examples as being equally deserving of legal protection under the framework of religious freedom. First, the Sikh American soldier's turban and beard are an act of expression that affects only himself, whereas a North Carolina magistrate judge refusing to perform a marriage directly affects other people, specifically by denying them a right that, as of last Oct. 10, they possessed as citizens of that state. The soldier's turban and beard do not violate anyone else's rights; therefore they merit protection.

Religious freedom means that Kallam has every right to believe that marriage ought to be restricted to a man and a woman, or, for all I care, three men and a baby. (What ever happened to Steve Guttenberg, anyway?) But Kallam cannot act on those beliefs -- especially not as an officer of the state -- if doing so would deny others their constitutional rights.

And this rejection of the clear distinction between expressing one's faith and acting on it to discriminate against others is at the heart of the conservative concept of religious freedom. Last October, Gordon Klingenschmitt celebrated John Kallam for having stood up to "tyranny." Klingenschmidt, by the way, also expressed the belief that LGBT activists "want you to disobey God so that you go to hell with them" and added that the judges who declared bans against same sex marriage to be unconstitutional are "demonic judges who are imposing the devil's law upon the people."

Who is Gordon Klingenschmitt? A few weeks after making those statements on his Pray in Jesus' Name television program, he won election and became a brand-new Republican state representative in Colorado. It's a struggle between freedom and tyranny, folks.

In addition to pushing laws that would allow government officials to discriminate in the name of religious freedom, conservatives are also pushing laws that would allow private businesses to do the same thing, mostly in support of bakers, florists, and photographers who refused to provide services to customers putting on a same-sex marriage. According to Jim Campbell of the Alliance Defending Freedom, this is about "religious liberty." He added, "We believe the Constitution protects the right of all citizens including business owners to live in a way consistent with their faith." (Judges in Colorado, New Mexico, and Washington have already ruled against business owners in such cases. The business owner in the New Mexico case appealed to the Supreme Court, which declined to intervene.)

Along lines similar to Campbell and Kallam, South Carolina Republican State Sen. Lee Bright argued that laws allowing this kind of discrimination are not only right but constitutional because "we have similar language for folks that work in health care that don't want to participate in abortions" due to their religious beliefs. At first glance, this might seem a potent argument. However, it's little more than sleight of hand. Medical professionals are not allowed to say, "I perform abortions, but only for heterosexuals." That would be discrimination, and that's exactly what florists, bakers, and county magistrates would be doing if they provided their services to some but not others.

Here's the one I'd like to run by conservatives who talk about religious freedom in these terms: Think about someone whose religious beliefs state that women must not work outside the home. Now imagine that person having authority over hiring decisions at his job. Do his religious beliefs allow him to discriminate against a female candidate for a position? Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of both religion and sex. I'd like to see a conservative argue that religious freedom gives the man in this scenario the right to reject, out of hand, all women candidates seeking employment.

This is not about religious freedom. All Americans are guaranteed the right to their religious beliefs, the right to worship (or not) any deity they choose in the manner in which they choose. That is a bedrock principle of this country, and progressives would fight tooth and nail to preserve it, should it ever be endangered. The thing is that it's not in danger, other than from conservatives themselves, from people like Bryan Fischer, who, last September, said that all immigrants should be forced to convert to Christianity. Fischer remains connected to the American Family Association, an organization closely allied to the Republican National Committee.

It's really simple. Conservatives think religious freedom gives them the right to discriminate on the basis of their religious beliefs. They're wrong, because, to paraphrase Zechariah Chafee, their right to practice their religion ends where my nose begins.