Where in the Constitution is there a commercial transaction exception to your First Amendment right to freedom of religion? Americans have two Constitutions. One is the written document, and the other is the body of Constitutional law that rewrites, re-interprets, and ultimately amends the first. I like to say that the founders wrote the Constitution, but lawyers have rewritten and manipulated it. The people who founded this Constitution gave us Freedom of Religion in First Amendment of the Bill of Rights. In modern America, activists are trying to give us freedom “FROM” religion.
I’m no religious zealot. In fact, my thoughts on organized religion are not kind. Moreover, my thoughts about the practices, discrimination, and bias inherent in many religions drives my thinking that most people don’t understand the purpose of religion … which is to make us better people for ourselves, our families, and our communities.
In America, however, while I can criticize your religion, I can’t force you to change your beliefs. That I must do through logic, reason, and example. My fellow citizens and I can’t pass laws that change your religious beliefs, unless of course your religious beliefs include crimes.
Here is what I think. If your religion requires you not to sell a cake to people because they are gay, you probably should think about finding a new religion. However, if you think your government has the right to compel a foolish, ignorant cake-maker to sell you a cake over his or her religious beliefs, you probably ought to find a different kind of government.
Liberty isn’t at all about equality or fairness. That is what civility and decency are about, which ironically are moral guideposts one hopes one gets from religion.
The Pilgrims got on a crappy wooden sail boat in the 1600’s and sailed across the Ocean to find a place where they could practice their religious faith without the yoke of government tyranny. They were a radical sect of nutcases, by and large. However, the principle of religious freedom, free from state intrusion, intimidation, or oppression, became a founding pillar of our society.
Now … Americans don’t give a damn about your religious liberty.
Secular zealotry in the name of government-mandated fairness has replaced a founding tenet of our liberty. Like most government intrusions upon your liberty, the majority seeks to foist laws upon us to make our lives better. Government “protection” of consumer transactions and defending Americans from “discrimination” sounds great when I write it like that. It’s still government regulation of religious freedom and a tyranny of the majority foisted upon religious minorities in order to coerce conduct to combat religious freedoms of which a government disapproves.
That is a repudiation of freedom of religion.
It is a preposterous belief that an American’s right to engage in a consumer transaction trumps another American’s Constitutional right of freedom of religion. If a founder had offered a Constitutional Amendment granting Americans the right to force other Americans to sell them stuff, short and angry would have been such debate.
I went to law school. I even taught at a pretty good one. I am a legal expert on radio and TV. I understand the body of Constitutional case law giving us Court created doctrines that purport to weigh, balance, and resolve conflicts of rights and government intrusion upon our rights and interests. Most of these various tests and doctrines, I might add, while fascinating academic and logical exercises, are all judicially created, extra-Constitutional, hooey.
The founders designed the First Amendment, first and foremost, to ensure an individual’s right to freedom of religion. In so ensuring that right, the Amendment likewise precluded the government from setting up a government religion and forcing it on the people.
The First Amendment, nor any other part of the Constitution, nor any law, compels an American sell goods or services to another American if so doing infringes on his or her religious belief. We have no Constitutional right to force people to sell us something.
I don’t sell cakes for a living. I’m a lawyer. If a prospective client walks into my office and wants me to retain me for complex litigation on behalf of himself or his company, do I have to represent him? No. Let’s say he has the money and all he wants to do is hire me because he knows I am the best lawyer for the job. I have the time, and we agree on the terms. Then, I recognize his name and I remember that he was in the news for cheating on his third-wife and getting a former call girl pregnant while doing so. I decide all of that activity is unseemly, and his conduct is decidedly against my religious beliefs.
Do I have to represent him now? Must I sell that man my services?
He is an adulterer, a philanderer, and he consorts with prostitutes. This is a simple question; “Can the United States government, or any state government, force me to represent this man when he and his actions are at odds with my religious beliefs?”
If you believe the government can compel me to do so, this is not the country or Constitution for you.
Now … let’s change the hypothetical. The same man walks in, all other facts are exactly the same except in this case the man was in the news because of a star-studded wedding where he married his long-time partner, another man. In that instance, let’s say my religious faith, jacked-up and stupid as it might be, compels me to reject association with or approval of homosexuals. Can the United States government, or any state government, compel me to represent the man and to provide my services to him?
If the answer to you is yes, than again this is neither the Constitution nor the country for you.
Is your First Amendment right to freedom of religion then nothing more than a shield for discriminating against others? Yes. Yes it can be if your religion stinks.
Welcome to America.
We discriminate against people for every known reason. “Discrimination” itself is not illegal. The term has become such a pejorative that people only think of it in a legal context. Legal discrimination is and should be quite rare. After all, we discriminate on how people look, what they think, how they act, their music, their clothing, their associations, their political views, and even whether they drink Starbucks or Dunkin’ Donuts.
Nothing in the Constitution prevents a merchant or seller of goods from discriminating against a buyer, just as nothing prevents a buyer from discriminating against a seller. I can no more force you to buy my stuff than you can force me to sell you my stuff. We do have a remedy for irrational sellers. We discriminate against people who discriminate in a way we don’t like. You know what happens when people find out sellers treat buyers unfairly? Decent people discriminate against them. They call that … boycotting. It’s a no government intervention needed solution.
Not surprisingly, the market has a remedy that holds sellers accountable. In fact, in a commercial transaction, no solution is more effective and useful to change conduct than market forces. Moreover, buyers and sellers retain their freedom, and the government plays no role in picking winner and losers. Americans have a right to be fools. Trust me … or just read the internet.
The right to fail because of your own foolishness is the essence of liberty.
Freedom of religion, like freedom of speech, is really easy to defend when the religious beliefs offend no one or the speech is popular to everyone. Our freedoms gain their value from our willingness to defend them when they are not popular. Is it sad and silly to reject buyers based on being gay? I think so. Do I want to make a law to mandate that people who don’t want to do business with others do so? No … I don’t.
A government that secures the liberty of the unpopular does not lose moral authority in so doing. To the contrary, liberty flourishes when a free people are free to act stupidly … subject only to well-deserved scorn and repudiation by their fellow free men.
It is not government’s role to force the farmer to plant the seeds of enlightenment into the sands of his own ignorance. Likewise, it is the greater fool who thinks such a planting would lead to a bumper crop of liberty and love.
Author: Richard Kelsey
Richard Kelsey is the Editor-in-Chief of Committed Conservative.
He is an Attorney, a former Assistant Law School Dean, Law Professor, and Virginia state court law clerk. Dean Kelsey was also the CEO of a technology company specializing in combating cyber-fraud. He is a regular commentator on legal and political issues in print, radio and on TV.
Rich graduated from George Mason law school, clerked for the Arlington Circuit Court, and later joined an AM LAW top 10 law firm practicing commercial litigation. He left the firm to be counsel and CEO to a consulting firm, rising to CEO of Turiss, LLC, a technology firm specializing in computer forensics, digital investigations, and fighting cyber-fraud through civil intel services and new technologies. Upon the sale of the company, Kelsey returned to Mason Law, where in the years before his return, he both taught at the school and served as President of the Law Alumni Association. Kelsey was the Assistant Dean for Management and Planning.
At Mason, Dean Kelsey taught legal writing and analysis and an advanced litigation seminar. In 2014 he was elected by the graduating class as the faculty speaker at their graduation. While serving the former George Mason Law, Kelsey conceived of, planned, and brought to fruition Mason’s Center for the Protection of Intellectual Property, known as CPIP.
Rich has appeared on radio, TV, and in print hundreds of times as both a legal expert and political and legal commentator. He provided the legal analysis for all stages of the Bob McDonnell trial and appeal for numerous outlets including NPR and WMAL. He writes on occasion for the American Spectator and CNSNews.com. He returned to private practice in September of 2016, and he is working on a book/expose on legal education.
In his free time, Rich is part of the baseball mafia of Northern Virginia, serving on numerous boards and as a little league and travel baseball coach.
Rich has many opinions, and they are his own. His Twitter handle is @richkelsey.