A method for resolving cases that force a choice between discrimination and religious liberty

By David Hamstra –

ReligiousLiberty.TV recently reported (see "The Price of Citizenship?" – August 23, 2013) on a case in New Mexico where a lesbian couple successfully sued a Christian photographer who declined to enter into a contract to take photos of their wedding because of her religious opposition to gay marriage. Those in favor of the ruling correctly say it was a clear case of discrimination – the photographer operated a business, and businesses are obliged to serve the public without regard to sexual orientation. Those against the ruling correctly say it clearly puts religious liberty in jeopardy when a person must choose between their religious convictions and their business.

Setting aside the question of whether the photographer to refusing the couple was the Christian thing do (I have written on that topic here), I want to take up the question of how we can resolve cases that force us to choose between discrimination and religious liberty. It is tempting to resolve the question in favor of one or the other depending on what our moral intuitions tell us about the way the world should be, but to do so, as I will argue later, is to impose upon the weak the vision of morality held by the powerful, putting our society on a trajectory towards totalitarianism. Instead, I want to propose an principled way to approach these cases that will hopefully allow those on either side to find common ground.

The dilemma arises from the problem of how we operate a civil society in which people have conflicting ultimate values. I'll define ultimate values as personally held axiomatic convictions wherein one finds identity, meaning, and purpose in life. Ultimate values were once exclusively religious in origin, but in our society they can come from other sources as well (e.g. secular humanism).

When people disagree on ultimate values, historically that means war. They attempt to use the power of the state to coerce the other into living life according to their ultimate values. The principle of tolerance was implemented in England in 1689 (see Act of Toleration 1689) during a time of violent religious conflict as a way to hold society together, and I believe it can apply in our culture wars today.

Tolerance means that on the one hand we allow everyone to participate in civil society regardless of how strongly we disagree with their ultimate values. On the other hand, tolerance also requires that we not use the powers of civil society to coerce others into participating in our ultimate values. Therefore, to avoid the imposition of ultimate values, civil society must concern itself with secular, commonly held values and not ultimate values and when those overlap must defer to individual freedom with respect to ultimate values, except when those ultimate values become justification for expelling others from civil society, which would undermine the purpose of tolerance.

The principle of tolerance would require that a photographer not concern herself with a client's ultimate values-in the New Mexico case, with respect to sexual identity-when conducting business in civil society. Shooting, for example, a senior class picture of a person whose ultimate values differ from the photographer's does not force the photographer to use their artistic expression to affirm ultimate values contrary to her own. They are operating in the broad secular space in civil society in which ultimate values do not overlap.

But, if that client wanted the photographer to use her artistic expression to celebrate that client's ultimate values with respect to sexual identity, the principle of tolerance would require that the client find a photographer who shares or is not opposed to that aspect of their ultimate values. To attempt to use the powers of civil society to penalize an artist who refuses to express ultimate values that conflict with their own is to put us on the road to totalitarianism, where the government decides what everyone's ultimate values will be.

If we substitute in the above example, a hypothetical lawsuit against Jewish photographer opposed to inter-racial marriage between a Jew and a non-Jew who refused to photograph the wedding of such a couple, one must first determine if that objection to inter-racial marriage is an expression of an ultimate value. For example, is there a bona fide religious motivation, or is the photographer simply a racist. If there is a bona fide religious motivation, the photographer cannot be penalized without violating the principle of tolerance. If there is not an ultimate value at stake, the photographer is violating the principle of tolerance.

For the Jewish photographer, the racial category of Jew is also a religious category, and therefore her ultimate values must be respected. But pushing the example further, suppose the Jewish photographer with a bona fide objection to Jew/non-Jew marriage based on ultimate values is also a waiter at a restaurant. Can she refuse, based on the principle of tolerance, to serve an Jew/non-Jew couple based on her objection to inter-racial marriage? She cannot, because the principle of tolerance demands that ultimate values be deferred to up to the point where they become the justification for expelling another from civil society.

For the principle of tolerance to work, civil society must be broadly defined. Denying a person food, shelter, secular education, lifesaving health care, full economic participation, access to secular spaces, or any other good that is necessary to participate in secular life is an attempt to remove them from civil society. Attempting to justify that on the basis of an ultimate values is the one thing the principle of tolerance does not tolerate.

For this reason a hypothetical racist photographer who believed black people are inferior for religious reasons could not refuse to photograph a a black/white couple. Her beliefs about the inferiority of black people would be grounds for excluding them not only from her artistic expression but from civil society in general and therefore cannot be tolerated. Likewise, a photographer with an ultimate values based objection to same-sex marriage could not seek to deny a civil marriage ceremony to gay people in general. But she could decline to help a same-sex couple celebrate the a same-sex ceremony by using her artistic expression, if her objection was not to gay people entering into civil marriages in general but to a redefinition of marriage to include same-sex couples in particular. However, she would lose that tolerance if her beliefs about same-sex marriage lead to the conclusion that gay people in general should be excluded from civil society.

The problem with using discrimination as the standard of civil rights legislation is the question of which categories get protected status (age, sex, race, religion, etc.). It is impossible to determine those categories without appeal to ultimate values, be they religious, enlightenment-humanist, feminist, etc. The ultimate values of those in power determine which categories are protected and to what degree. Protected categories are then used to penalize those whose ultimate values conflict with those of the powerful. By ignoring the need for tolerance in areas where tolerance can reasonably be granted without jeopardizing civil society, the protected categories system of anti-discrimination law sets up a winner take all system as opposed to a live and let live system. Power becomes more important that principle.

I propose that instead of beginning with the assumption that certain categories should have protected status, we should begin with the assumption that tolerance in order for all citizens (defined as broadly as possible) to function in society and proceed from there.

I believe our civil rights legislation should distinguish between instances where individuals with conflicting ultimate values

1) are operating in a secular space where their conflicting ultimate values do not overlap; or

2) are operating in a secular space where their conflicting ultimate values overlap; or

3) are operating in a secular space where basic participation in civil society is at stake and where their conflicting ultimate values overlap.

In the first instance tolerance requires full cooperation; in the second instance tolerance requires the option for full separation; in the third instance tolerance requires full cooperation.

This system of thinking is a work in progress and could certainly benefit from critique. Nevertheless, I believe the principle of tolerance points a principled way for Christians who are concerned for religious liberty can navigate the polarizing power struggles of our society's culture wars.


[box]David Hamstra serves as pastor of the Fort McMurray Seventh-day Adventist Church in Alberta, Canada. He is a graduate of Canadian University College (BA, 2004) and Andrews University (MDiv, 2010). David is married to Heidi, and God has blessed them with two sons. He enjoys cooking, jogging, telling jokes, and road trips.[/box]


Photo credit: iStockPhoto



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