How to Argue About Wedding Caterers, Gay Weddings, and Freedom of Religion With Your Facebook Friends

In light of the recent publicity surrounding the bakery in Oregon who refused to cater a lesbian couple's wedding, I decided to write a little article about what the Constitution actually says about freedom of religion. While the issue is anything but settled, most people are pretty polarized when it comes to their opinion on this. Therefore, if you're going to argue about it with your friends, family, coworkers, barista, or exterminator, you should be familiar with the basics. It will make you sound more authoritative and intelligent in your argument.

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So, what does the Constitution say about Religion?

It's really just one little sentence. But boy is it ever one loaded, powerful, and heavily analyzed phrase: 

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"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;" 

That's it. But legal scholars, the media,  and the general public have filled many books, news channels, and Facebook pages with debate about what that sentence actually means. For analytic purposes, it has been broken down even further into two segments: The Establishment Clause and the Free Exercise Clause. 

The Establishment Clause

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The first part of the sentence is known as the Establishment Clause.

"Congress shall make no law respecting an establishment of religion."

It means, among other things, that the government can't establish an official religion, nor can it make laws that favor one religion over another. Whenever the government makes a law, it has to pass a special test that the Supreme Court came up with in a famous case back in 1968. 

In order to stand, any law the government makes must:

1) Have a primary secular purpose: The reason for making the law can't have anything to do with helping out or hurting a particular religion.

2) Have a primary secular effect: When the law is actually carried out, if it ends up mainly advancing or inhibiting religious practice over anything else, it's no good regardless of its intention.

3) Not result in excessive government entanglement: The law can't involve the government too much in the management or control of how religions conduct their affairs.

So next time you think a law might violate religious freedom, think about those three things and decide whether or not it passes what's known to us law students as "The Lemon Test," named after the plaintiff in that famous case. If it doesn't, maybe it's time to start a civil action. 

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The Free Exercise Clause

If you decide that a law doesn't violate the Establishment Clause, consider whether it might violate the Free Exercise clause. This tends to be the one people argue about the most on Facebook. 

"[Congress shall make no law] prohibiting the free exercise of [religion]."

This means, that the government should not make laws that interfere with your ability to freely practice your religion. In other words, the government shouldn't make you do something your religion forbids, and they shouldn't prohibit you from doing something your religion requires. This one is a LOT trickier to implement than the Establishment Clause. If everyone were allowed to do whatever their religion required, we would have complete and utter chaos. So, it's near impossible for this clause to be enforced in its purest form. 

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The government tries the best it can, but unfortunately, often one religion's rights seem to end where another's begin. Therefore, in another famous case in 1944, the Supreme Court expanded the meaning of that part of the First Ammendment to allow free practice of religion "as long as it does not run afoul of public morals or a compelling government interest." Well now, isn't that one hell of a can of worms to open? How the heck do we decide what religious practice "runs afoul of public morals"? And what exactly are "public morals," anyway? Obviously we can't just go around breaking whatever law we feel like in the name of religion, but where do we draw the line? Hence, now you can see the reason for all of the bitter arguments. In 1963, the Supreme Court came up with a new way to decide whether or not a law was in violation of the Free Exercise clause. It's a start, but it definitely still leaves a lot of gray area. Nevertheless, you should still use the test to argue your points if you find yourself in a (hopefully friendly) debate: 

1) Does the person have a sincere religious belief?

2) Is the law seriously impacting their ability to act in accordance with that belief?

3) Does the law serve a compelling (Read: EXTREMELY IMPORTANT) government interest?

4) Could the law be re-worded to accomplish the same goal in a way that doesn't restrict that person's ability to practice their beliefs?

Assuming, you get "yes" for 1 and 2, if you get anything other than "yes" for 3 and "no" for 4, you have a potential violation.  However, it can be tough for courts to determine what counts as a "compelling" government interest. 

A final caveat to remember is this: In 1990, the Supreme Court put a little bit more restriction on this test for Free Exercise Clause violations by deciding that you can't get out of having to follow "generally applicable laws" due to your religion. As with everything else, that still leaves a lot open to interpretation....

So does the Constitution require my cake business to cater a gay wedding if it's against my religion?

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From a national standpoint, it's still unclear, but (in my humble opinion) the answer is likely to be "yes" pretty soon. Think about the bakery in Oregon again. A long time ago, the  Federal Civil Rights Act of 1964  totally outlawed discrimination based on race, color, religion, sex, or national origin. But what about sexual orientation? Many states have passed widely varying anti-discrimination laws protecting the LGBT community. Even so, LGBT's are not currently a federally protected class of people. Should they be? That's being debated as we speak in courts across the country. Personally, I predict that LGBT people will eventually become a federally protected class, and private business will therefore no longer be allowed to discriminate against them in the name of religion. But I digress... The purpose of this article was merely to give you some background on how these issues are considered, not to argue a particular stance. I now release you into the world with the tools that you need to intelligently argue whatever viewpoint you have next time you find yourself in a friendly debate. 

Thanks for Reading!