Washington State dealt another significant blow to liberty yesterday, with its highest state court ruling that a florist can be compelled to provide her services for a same-sex wedding against her religious beliefs or be fined.
Once again, this is the exact ruling the Bill of Rights expressly forbids. If we understand the definition and substance of “rights” as the Founders recognized and assented to in the Declaration of Independence—that unalienable rights preexist any form of government—then we also understand that the First Amendment is not defining the scope of our rights. In fact, it’s defining the exact opposite idea: limiting the scope of what government can legitimately regulate.
The First Amendment does not confine “free speech” or “free exercise of religion” to a narrow definition within a government-approved context. It confines government. It simply says that Congress cannot legislate in any manner prohibiting or abridging these enumerated rights (and not to the exclusion or surrendering of any other rights not specifically enumerated). I have previously written about the difference between unalienable, preexisting rights and government-given privileges, and the sum of that discussion is that our Founders recognized all human beings are endowed by our Creator—not our government—with rights, and that restricting the government’s ability to infringe upon our rights is essential to freedom and liberty.
But overt infringement isn’t the only form of abridgment. Importantly, the Founders also understood and characterized religious freedom with a particular verb:exercise. Meaningful vestiture of rights is not simply holding a right, but having the freedom to act upon it. In the context of religious freedom, belief is only half the right. What good is it to hold a religious belief if I am restrained from acting upon it? What good is it to hold an opinion if I am restrained from speaking or publishing that speech?
Other areas of law recognize this two-part requirement to be complete. In criminal law, most crimes are only designated completed when there is both the mental state (intent) and the act itself (exercising that intent or belief). Similarly, true religious liberty can only be achieved and completed when belief is coupled with exercising or acting upon that belief.
In the case of florist Barronelle Stutzman, the Washington State Supreme Court did everything constitutionally wrong by prohibiting her from acting upon her religious belief.
The Court first operated from the premise that the right to freely exercise religion by declining to participate in an event that goes against one’s belief is not a right at all. It actually is. The Constitution specifically preserves and protects that right. Further, the Court ruled not only is her actual right to exercise forbearance foreclosed, but the Court actually thinks it’s a legitimate, constitutionally correct opinion to compel some form of exercise or make her face a financial cost.
This is constitutionally absurd. The entire point of First Amendment religious freedom is to protect freedom to exercise beliefs. Belief without action is no right at all. Our beliefs may differ. In fact, it’s guaranteed that they will differ, just as certain beliefs differed even among the Founders. Yet they all agreed that liberty must be the cornerstone of society and a legitimate government, not uniform belief.
James Madison wrote that there are two methods for curing faction: one is by removing causes, the other by controlling its effects. He recognized that as long as man is human, we will disagree, and in preserving the liberty to exercise disagreement peaceably is essential to true liberty. In Federalist No. 10, he so eloquently writes,
There are again two methods of removing the causes of faction: the one, by destroying the liberty which is essential to its existence; the other, by giving to every citizen the same opinions, the same passions, and the same interests. It could never be more truly said than of the first remedy, that it was worse than the disease. Liberty is to faction what air is to fire, an aliment without which it instantly expires. But it could not be less folly to abolish liberty, which is essential to political life, because it nourishes faction, than it would be to wish the annihilation of air, which is essential to animal life, because it imparts to fire its destructive agency.
The second expedient is as impracticable as the first would be unwise. As long as the reason of man continues fallible, and he is at liberty to exercise it, different opinions will be formed. As long as the connection subsists between his reason and his self-love, his opinions and his passions will have a reciprocal influence on each other; and the former will be objects to which the latter will attach themselves. The diversity in the faculties of men, from which the rights of property originate, is not less an insuperable obstacle to a uniformity of interests. The protection of these faculties is the first object of government.
Government’s obligation is not to either abolish liberty or compel uniform exercise of religious beliefs. Rather, it is to preserve and protect the right of a florist to quietly exercise her religious freedom and decline to participate in a same-sex wedding. My exercise of freedom does not include a right to compel you to believe uniformly or act upon that religious belief.
The tension point becomes allowing true liberty. The government certainly does legislate some morality, restrain some action, and it should. Again we see this truth most easily in the context of criminal law. A government prohibiting certain acts and designating those acts as crimes is a moral legislation. Balancing the tension of liberty with morality and virtue is a delicate business, and precisely what John Adams meant when he said,“Our constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.”
Our American experiment in self-government reserved every right to the people, including freely exercising those rights. However, the people cannot claim every possibly conceivable or articulable “right,” but rather rights are defined from whence they were endowed. So understanding our rights in the light of liberty requires knowledge of the true source of our rights, and the drafters of the Declaration recognized our Creator and “Supreme Judge of the Universe” as that source. That is the premise and basic truth upon which our Constitution, including our Bill of Rights, is built.
As ardently as Madison advocated for true liberty, and as solemnly as Adams recognized our duty to adhere to morality, we must be faithful to elect leaders and appoint judges who will properly balance this delicate tension in cases such as Barronelle’s and preserve and protect liberty for all, not just those with whom we agree.