The Corner


A New York Times Op-Ed Is Very Wrong About Religious Liberty

A man prays during Ash Wedneday services at St. Andrew’s in New York City, 2014. (Carlo Allegri/Reuters)

Until I read Ramesh’s post below, I hadn’t seen Margaret Renkl’s fundamentally misguided op-ed about religious liberty in today’s New York Times. Like me, Renkl writes from Tennessee (she’s in Nashville; I’m in Franklin), and she uses a recent Tennessee incident where a Dickson County baker refused to design and bake a cake for a gay wedding as a launching pad for an attack on America’s most fundamental First Amendment freedoms. Unfortunately, she makes two important legal errors.

First, she gets the primacy of American law exactly backwards. She formulates religious liberty like this: In this country, citing religious or spiritual convictions is often a surefire way to get out of doing something you’re required by law to do. This is a common framing on the left. Essentially, it’s an argument that religious freedom is an intrusion into the law and that religious people are engaged in a form of special pleading — seeking rights and exemptions unavailable to other Americans.

In reality, the First Amendment is supreme, and when states seek to intrude on religious liberty, they’re trying to get out of something they’re required by law to do. Respecting the First Amendment is the default obligation of the federal government and every state and local government in the United States. When people of faith appeal to the First Amendment, they’re appealing to America’s highest law, and while Employment Division v. Smith weakened the Free Exercise Clause, multiple subsequent cases have restored at least some of its vitality, and most religious freedom claims are also grounded in the very robust free speech clause of the First Amendment.

And this brings us to Renkl’s second error — false equivalence. She compares religious objections to vaccine laws with religious objections to designing a cake for a gay wedding. No, really:

The Constitution protects my right to believe whatever I want to believe, including my right to shun science and modern medicine. It does not give me the right to expose innocent people to unnecessary suffering. Because there are people who cannot be vaccinated against deadly communicable diseases — infants, people with compromised immune systems, etc. — the decision not to vaccinate should come with some conditions. If you decide not to vaccinate your children, then they should not be allowed to take public transportation or go to public school.

Likewise, if you’re a baker whose religious convictions prevent you from baking a wedding cake for a gay couple, then you need to find a line of work that doesn’t involve selling wedding cakes from a public storefront. (Emphasis added.)

There is no likewise between exposing a person to a deadly disease and asking someone to go to one of dozens of other bakers who’d be happy to bake your cake. There is no likewise between potentially fatal harm and short-term hurt feelings. And thus there is no equivalence between the state interests as it seeks to intrude upon the First Amendment. In one case, the state’s interest is either at its apex or its near-apex. In the other case, a long line of Supreme Court jurisprudence indicates that conscripting a person into an expressive act (and using your artistic talent to celebrate an event you object to is expressive) is among the worst violations of a person’s individual liberty.

The First Amendment is too often treated as an annoyance, a speed bump on the road to social justice. One valid limitation on free speech and religious liberty is used to justify the next encroachment — even when the situations are dramatically different in degree and kind. Yet America’s founding documents and founding principles are clear — protecting individual liberty is the prime purpose of American government. Those who seek to restrict that liberty are the ones who seek exemptions from the supreme law of the land.

David French is a senior writer for National Review, a senior fellow at the National Review Institute, and a veteran of Operation Iraqi Freedom.

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