The recent anti-gay bills in the Arizona and Kansas legislatures purport to defend the ancient concept of religious liberty, or more broadly, "freedom of conscience". This is a misunderstanding, if we can use that word to talk about a bill that is so clearly politically calculated. Much has been written about the homophobia that gives momentum to the these bills. Here we want to focus on the argument from religious liberty.
The Bill of Rights enumerated in the Constitution defines religious liberty. It focuses primarily on the threat that the government would create some religious test for political activity: voting, or running for office. At the same time, it contains the bold claim that "The right to worship God according to the dictates of conscience shall never be infringed".
No Free Pass to Discriminate
Even in Kansas, religious conscience is not considered a free ticket to do anything whatsoever. During the ritual abuse panic in the 1980s, Kansas was a hotbed of inquiries into (basically non-existent) Satantic cults that were supposedly torturing babies for their religious ritual. During this whole fiasco, no one ever raised the point that these alleged Satanists were entitled to torture babies because they had the the right to worship Satan according to the dictates of their conscience.
And why not? Clearly, because religious freedom has never been understood to trump the rights of other people. The very first section of the Kansas Constitution's Bill of Rights reads: "All men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness." These rights cannot be overridden by a Satanist who feels a religious obligation to cut out your heart, and they cannot be overridden by a Christian or Muslim who feels a religious obligation to shun someone they think is gay.
This point is so straightforward that no serious observer can doubt that the recent bills in Kansas and Arizona will soon be deemed unconstitutional. But arguments can be more powerful than legislation, and it is important to quench this argument. Freedom of conscience has never been understood as a blanket excuse for violating other people's rights (including, let's be clear, their religious rights). Anyone claiming otherwise is trying to sell you something.
Category: Equal Rights