This column by ACRU Senior Fellow Kenneth Blackwell was published July 6, 2015 by Townhall.com.
Kelly Shackelford’s debate with Evan Wolfson on Fox News Sunday highlights the battle lines for religious liberty in America now that the Supreme Court has grossly overstepped its authority by declaring same sex marriage a constitutional right. The issue is whether religious liberty extends to how you earn your living, get an education, and run a business.
For years to come, the fight for many Christians will be on whether their right to the free exercise of religion includes the right to earn a paycheck without violating their conscience. Televised debates need to focus on the fierce debate over whether your religious-belief rights carry over into your daily life. The Constitution does not force Christians to choose between being able to put food on the table versus being faithful to their cherished beliefs.
The day after the Supreme Court’s infamous 5-4 decision in Obergefell v. Hodges, Shackelford and I published an op-ed in Investor’s Business Daily, showcasing the discussion on what that court decision will mean for tens of millions of observant Christians.
On July 5, Shackelford — president of the public-interest law firm Liberty Institute — squared off against Wolfson, who since 1983 has been a leader in the effort to make gay marriage a reality through legal action. Shackelford and Wolfson agreed that the Supreme Court’s justices ruled 9-0 that churches have free-speech rights to teach their religious beliefs on marriage being between a man and woman.
But what the rest of the interview showcased is that the courts—and the political right and left in this country — are fiercely divided on whether a person’s right to exercise their religion extends beyond the walls of their church or house. The Constitution’s First Amendment protects the right of free speech. But just before those words, a separate provision of the First Amendment promises the right to the “free exercise” of religion.
It’s separate from the right to free speech, and Justice Kenney’s majority opinion in Obergefell said nothing about this separate right. Instead, Chief Justice John Roberts said it was “ominous” that the Court majority did not discuss at all the right to freely exercise religion for those who object to redefining marriage. In fact, all four dissenting justices’ opinions — Roberts, Scalia, Thomas, and Alito — all noted with alarm the implications for what is properly called our nation’s First Freedom.
Shackelford explained several of the most egregious examples in the courts right now of Christians suffering for their church’s beliefs on marriage. Oregon bakers Aaron and Melissa Klein recently had a $135,000 fine levied against them, forcing them into bankruptcy. Washington florist Baronelle Stutzman — a grandmother — is being prosecuted by authorities who seek to take her home and life’s savings. Colorado baker Jack Phillips even faces jail time if he violates a court order to bake gay-wedding cakes.
Wolfson tried to muddy the issue by saying “everyone” agrees with religious-liberty rights here, but went on to show he clearly thinks that no one has the right to allow their faith to impact how they run their business. He referred to following your beliefs on marriage to claiming a license to discriminate. The truth is the opposite: Wolfson and his allies are demanding a license to discriminate against faithful Christians.
It would have been nice for the interview segment to have lasted another two minutes. I would have liked to see Wolfson’s response if Shackelford had asked if Stutzman deserves to lose her home, or if Phillips deserves to go to jail. From what he said on Fox, evidently Wolfson’s answer must be “Yes.”
Someone should push Wolfson to answer those questions so that we can all know for sure. Then someone should ask President Obama the same question. Then someone needs to ask Hillary Clinton; in fact, her Republican opponent should ask her on national television during the presidential debates, and not let the debate move forward until America has a definite answer.
This is Ground Zero for the war on religious liberty. The political left—including gay-marriage activists—are saying that your First Amendment rights over same sex marriage are limited to what you say in church or in your private home. You can’t live it out in your workplace. You can’t run a business with that biblical belief that the church has held for 2,000 years. You have a right to think something in your head, but not to act upon it in your daily life.
This struggle will define the political arena and the courts in 2016. If Christians don’t win this fight for First Amendment rights, then faithful Christians will be persecuted and driven from the business world, and America will become a country many people no longer recognize.