Is religious freedom of greater importance than the constitutional right of equality?
Arizona’s state law SB 1062, which has passed through the legislature and awaits gubernatorial support or veto, argues, ‘Yes’. I suggest, ‘no’, and I do so on religious grounds.
The argument for Arizona law SB 1062 is the protection of the ‘free-exercise-of-religion’. The new statute mandates that as a business owner, I should not have to serve people in my business, if I disagree with their actions on religious grounds. That is, the religious conviction of the business owner would trump the equal treatment of his or her customers. For example, a gay couple at a hotel could be turned away if the hotel owner objects to homosexuality on religious grounds. This is the definition of discrimination.
In this country, for a long time, even to this day – but no longer under the protection of law, we discriminated on the basis of race. This, of course, was a violation of a cornerstone of our constitution; equality. Today, under the guise of religious rights, the Arizona legislature has passed a law allowing businesses to refuse to serve individuals in the public because of religious differences.
We don’t yet know if Arizona Governor Jan Brewer will sign it into law. I dare say, she seems capable of any crazy thing. Remember when she wagged her finger inches from our president’s face? Even if she does sign it, it’s hard for me to imagine that it would stand the test of constitutionality in the long-run.
I’m not a constitutional lawyer, but I fail to see how this an issue of religious freedoms being impinged. If your religion prevents you from interacting with the public with fairness and equality, than change your business. There is no government mandate that you work in a public forum. Regardless of the constitutional point, religious assertion into the public square is fundamentally bad for religion, and ergo, bad for the public.
The Talmud suggests that true freedom of religion begins with freedom from religion:
At the moment the Israelites were about to receive the Ten Commandments, the Torah records that they stood at the foot of the mountain. The literal translation is “And they stood under the mountain.”(Ex. 19:17). If the people stood under the mountain, with God literally lording it over them – than acceptance of the Torah was hardly a choice.
Rabbi Aha, the son of Jacob, observed: This furnishes a strong protest against the Torah. [ That observance of the Torah is through coercion!!!]
Said Raba, Yet even so, they re-accepted it in the days of Ahasuerus, for it is written, “[the Jews] confirmed, and took upon them [etc.]” (Esther 9:27). -Babylonian Talmud, Shabbat 88a
Raba’s point is that it cannot stand that religion, i.e. observance of the commandments, is a response to a Godly threat. It is untenable for the sages to imagine that God forces our observance and faith. Indeed the entire enterprise of morality is dependent on the freedom to choose otherwise. Much better to see the observance from a less obvious, obscure verse from one of the last of the books of Hebrew scripture.
The rabbis of Babylonia circa 500 CE understood what religious fundamentalists in Arizona today have yet to learn: Faith does not come from coercion or imposition of faith is granted a a wide berth. I believe this to be just as true in Israel (see my blog on this issue as it relates to the Israeli rabbinate) as it is in Arizona. If you understand your religion to mean not eating pork, or lighting candles 18 min before sundown on Friday evenings, or not marrying someone you love because they are of the same sex as you, or any other wacky thing, do or don’t do it. Amen. The need for the state law to bless it is bizarre.
Faith’s real power, our sages understood, comes from the freedom of the individual’s choice of action, not by the power of the state, not even by the power of God: God can control anything,with the single exception of faith in heavens themselves. Hakol B’yadei Shamayim – Hutz mi’yirat Shamamyim.