By Steve Brawner
© 2015 by Steve Brawner Communications, Inc.
“This is America. You’re going to be offended,” said my 13-year-old daughter and political philosopher.
Good thing she’s figured that out at 13. Can the rest of us?
Maintaining a peaceful society based on the rule of law is hard, which is why our Constitution includes very clear phrases such as these from the First Amendment: “Congress shall make no laws respecting an establishment of religion, or prohibiting the free exercise thereof.”
Unfortunately, such clarity only solves so much because societies are complex organisms made of complex people. This country values separating church and state but has a Judeo-Christian heritage – one that’s fading, which is troubling to many people, but it still matters. So what’s important to some is not important to others – or it may even be seen as a threat.
Moreover, how do you balance the bedrock guarantees of the First Amendment with those of the Fourteenth, which declares that no state shall “deny to any person within its jurisdiction the equal protection of the laws”? Lately, courts seem to be leaning toward the Fourteenth, even if it means violating the First.
So this is hard, and it will probably keep getting harder, as this past week has shown.
The obvious example from a national perspective is Kim Davis, the Kentucky county clerk who briefly went to jail rather than issue marriage licenses to gay couples.
Actually, this particular one was easy. A government magistrate receiving a government paycheck ($80,000 a year, in this case) must enforce the government’s laws. Otherwise, a police officer (or a president) could pick and choose which laws to enforce, which would be bad, right? If those laws so violate the official’s conscience that she can’t do her job, then she should resign, as did Cleburne Country Clerk Dana Guffey, who much more quietly left her job of 24 years earlier this year.
Where it gets harder is when it’s about private businesses such as bakers and wedding photographers. In Arkansas, those professions currently can’t be required to participate in a religious ceremony that violates their religion, but that could be changed by a legislative act (fat chance for now) or an unfavorable court ruling (looking more likely, eventually).
Fayetteville tried to settle the issue this past week. There, voters passed an ordinance prohibiting discrimination against gay people in many circumstances. The measure passed handily with support from the Chamber of Commerce after a similar one had failed with the Chamber opposing it, saying it was unclear. But the new measure may conflict with a state law passed earlier this year. Opponents sued after losing the election, so it’s not settled yet.
Meanwhile, Arkansas is dealing with another dispute – this one over a legislatively approved, privately funded monument to the Ten Commandments on the State Capitol grounds. Legislators who approved the monument argued that the Commandments are an important, historical basis of the law.
What has followed was entirely foreseeable. A group of Hindus requested a monument to their religion. Now Satanists want to erect a huge statue of a goat-like figure.
So we’re back to the issue posed at the beginning of this piece. What do you do in a country that values freedom of all religions but whose history is tied most closely to one of them, which is becoming less dominant? Accommodate only religions that the majority, for now, deems acceptable? Accommodate all, so that the Capitol grounds are littered with monuments? Try to push faith out of the public square entirely, and then squeeze it into houses of worship and tell it not to come out? When you value separating church and state, what do you do when the state is in so many places?
I don’t have the answers. I know this: Regardless of whether it’s a constitutional interpretation, as with the Kentucky case, or a state law, as with the Ten Commandments, or a local ordinance, as in Fayetteville, it’s impossible to codify into law a system that ensures that no one ever has to be exposed to beliefs and lifestyles with which they don’t agree. At some point, there has to be some give and take in our complex society. There is no legal remedy if this is going to be a nation of touchy tattletales running to the teacher over every issue.
This is America, after all, and we have to be willing to be offended.