REALITYCHEX » ROSS DOUTHAT » U.S.

A Game of Constitutional Chicken

July 29, 2012   ·   11 Comments

Source: NYTX

By Marie Burns:

It is Sunday, so Ross Douthat of the New York Times is pouting about liberals infringing upon his religious freedom. In this week’s essay, Douthat gets quite wound up, ending with the virtual equivalent of a Howard Beal rant:

If you want to fine Catholic hospitals for following Catholic teaching, or prevent Jewish parents from circumcising their sons, or ban Chick-fil-A in Boston, then don’t tell religious people that you respect our freedoms. Say what you really think: that the exercise of our religion threatens all that’s good and decent, and that you’re going to use the levers of power to bend us to your will.

There, didn’t that feel better? Now we can get on with the fight.

Douthat’s cri de coeur today is “the great Chick-fil-A imbroglio, in which mayors and an alderman in several American cities threatened to prevent the delicious chicken chain from opening new outlets because its Christian president told an interviewer that he supports ‘the biblical definition of the family unit.’” Ironically, Douthat is right to call out officials in Chicago and Boston who are discouraging or are threatening to disallow Chick-fil-A from establishing new stores in their cities.

Clearly, the First Amendment protects a businessperson’s religious and political beliefs, and there can be no law, regulation or zoning restriction which infringes upon that person’s right to hold unpopular beliefs. A few weeks ago, Dan Cathy, Chick-fil-A’s president and CEO, told Allan Blume of the Baptist Press, “We are very much supportive of … the biblical definition of the family unit.” Let’s assume that what Cathy means by “the biblical definition of the family unit” is a man, a woman and maybe some kids. (The actual “biblical definition of the family unit” is a man, some women and some kids, along with maybe some slaves and castrated servants, but I doubt that’s what Cathy has in mind.) While Cathy’s view that is losing favor among the American public, it is hardly a far-out point-of-view. It is one widely held by people of many faiths and no faith. In and of itself, holding to “the biblical definition of the family unit” is not a threat to the rights of others.

BUT. If a businessperson exercises that belief – whatever basis he claims for it – by hiring only straight people or by discriminating against gay vendors or patrons (or even passers-by by, say, putting an offensive sign in the store’s window), then he is violating the Constitutional guarantee of equal protection as well as the biblical principle of the Golden Rule. That seems pretty straightforward to me.

It is odd then that Douthat links to the Blume story because it does suggest that Chick-fil-A practices discriminatory hiring: Cathy told Blume,

We are a family-owned business, a family-led business, and we are married to our first wives. We give God thanks for that. We operate as a family business … our restaurants are typically led by families; some are single. We want to do anything we possibly can to strengthen families. We are very much committed to that.

Are some of those families that “lead” their restaurants headed by gay couples? Are many of the singles openly gay? We should find out.

Further, Cathy indicated, however delicately Blume worded it, that the company contributed to “a marriage program in … support of the traditional family.” According to Media Matters, “in 2010 alone, Chick-fil-A donated over $1.9 million to anti-gay causes.” Well, that’s one way to “support the traditional family.” Expanding the base of traditional families to include gay couples is another way. Still, Chick-fil-A’s political contributions should not disqualify the company from setting up shop in Chicago or Boston. That doesn’t mean people should buy chicken sandwiches at their local Chick-fil-A. I don’t and I won’t.

Not a dime of public money should be spent discriminating against Chick-fil-A, but regulators in every municipality that has or contemplates having a Chick-fil-A restaurant in its jurisdiction should determine whether or not the firm employs discriminatory hiring practices. Cathy’s remarks strongly suggest the answer is yes. If so, that should make the company ineligible for zoning permits under most municipal codes.

Let’s get back to Ross Douthat, who – having taken up the cause of Chick-fil-A – forgets such “biblical principles” as the Golden Rule. The “conceit” of the city fathers, Douthat writes, “seemed to be that the religious liberties afforded to [church] congregations … do not extend to religious businessmen. Or alternatively, it was that while a businessman may have the right to his private beliefs, the local zoning committee has veto power over how those beliefs are exercised and expressed.” That is, according to Douthat, religious beliefs trump other laws and codes of behavior. He thinks liberals are “confused”:

You can see this confusion at work in the Obama White House’s own Department of Health and Human Services, which created a religious exemption to its mandate requiring employers to pay for contraception, sterilization and the days-after pill that covers only churches, and treats religious hospitals, schools and charities as purely secular operations. The defenders of the H.H.S. mandate note that it protects freedom of worship, which indeed it does. But a genuine free exercise of religion, not so much.

A similar spirit was at work across the Atlantic last month, when a judge in Cologne, Germany, banned circumcision as a violation of a newborn’s human rights. Here again, defenders of the decision insisted that it didn’t trample on any Jew’s or Muslim’s freedom of belief…. So while the ruling would not technically outlaw Jewish theology or Jewish worship, it would effectively outlaw Judaism itself.

(Where is Douthat when it comes to defending “Sharia law”?)

Douthat does admit that “every freedom has its limits. We do not allow people to exercise beliefs that require, say, forced marriage or honor killing. You can believe in the gods of 15th-century Mesoamerica, but neither Chicago values nor American ones permit the use of Aztec sacrificial altars on the South Side.” (Hmm, when Douthat writes of “Chicago values,” he wouldn’t be dog-whistling Barack Obama, would he?) So, it is permissible to deprive women of reproductive choices and neonates of their prepuces, but forced marriages and honor killings are a bridge too far. It is notable that Douthat himself will not be needing women’s health services, and it’s a few decades too late for him to do anything about circumcision. Of course, he might decide to have his own sons circumcised, and he evidently wants to retain that right.

So there is a line. Women’s reproductive rights and Chick-fil-A’s hiring practice fall on one side of it; forced marriage and murder on the other side. Where exactly is the line, then? Douthat has set himself up as “the decider.” He will decide what “the limits of freedom” are for the majority of us. So no Dionysian sacrifices, no “Wives for Sale” ads. Great. But Douthat thinks that – except in such extreme cases as forced marriage and sacramental murder – religious believers have a right to impose their beliefs on others as part of their “’free exercise’ of religion.” People with narrow religious beliefs are more equal than others. The rest of us are necessarily and correctly – in Douthat’s view – victims of the “more equal” believers. That is an astounding philosophy, and one that Douthat has consistently held.

In his column today, Douthat makes clear that every religious citizen – not just those operating within a religious community – have extraordinary rights to impose not their religious beliefs but their religious practices on others. That’s why he means when he refers to “the religious liberties afforded to congregations … extending to religious businessmen.” That is, we must all abide by the beliefs of the few. Not just respect their beliefs – abide by them if not adhere to them. For us to live by our own beliefs is to deprive them of their First Amendment rights.

It doesn’t occur to Douthat that such a scenario – in a multi-cultural society – is worse than unfair. It is impossible to establish. Today a friend sent me a link to a post in the Daily Kos complaining about the Mormon practice of baptizing the dead of other faiths. In “a 2010 pact…, the Mormon Church promised to at least prevent proxy baptism requests for Holocaust victims.” Apparently, the Mormons continued the practice anyway. This year, “prominent Holocaust survivor Elie Wiesel has called on Republican presidential candidate Mitt Romney to ‘speak to his own church’ and ask them to stop performing posthumous proxy baptisms on Jews…. Wiesel said that proxy baptisms have been performed on behalf of 650,000 Holocaust dead.” Obviously, the religious beliefs of the Mormons and Jews cannot be reconciled in this regard, and the adherents to one belief or the other will have to constrict their “free exercise of religion.” Either the Mormons will have to stop baptizing Jews, or Jews will continue to be victims of Mormon beliefs. One way or the other, there’s a loser here.

How does Douthat deal with this conundrum? He picks a winner. He has not picked a winner and loser in the Mormon-Jewish dispute, but he has chosen winners and losers in other fundamentalist-progressive Christian disagreements. He has decided that his orthodox Roman Catholic beliefs are more valid that yours, and that he and his church have a right to impose those beliefs on you. If you’re an employee of a Church-run hospital or a student at a Church-run university who needs contraceptive protection, too bad. Similarly, Douthat chooses the fundamentalist beliefs of Dan Cathy, the Chicken King, over those of, say, Episcopalians or Church of Christ congregations. If you’re a gay person who would like to manage a Chick-fil-A store, that’s apparently too bad, no matter how qualified you might be for the job.

As is typical of Douthat, he thinks the whole “confusion” comes down to sex: “To the extent that the H.H.S. mandate, the Cologne ruling and the Chick-fil-A controversy reflect a common logic rather than a shared confusion, then, it’s a logic that regards Western monotheism’s ideas about human sexuality – all that chastity, monogamy, male-female business – as similarly incompatible with basic modern freedoms.” No, Ross, you chose examples where sex is tangentially related to religious beliefs. Substitute “interracial” for “gay” in the Chick-fil-A controversy and it would have aroused the same horrified response from “liberals.” It is true that some religious groups – like the male Roman Catholic hierarchy – are sex-obsessed, so such groups more commonly raise issues related to sexuality than they insist upon their First Amendment right to perform ritual killings. (Animal ritual killings? A-Okay in the U.S.A.) It is not “Western monotheism’s ideas about human sexuality” that are “incompatible with basic modern freedoms.” It is some monotheists’ narrow ideas about human sexuality that impose upon basic modern freedoms – like the guarantee of universal equal protection.

At the top of his column, Douthat ruminates on the meaning of religious freedom:

The words ‘freedom of belief’ do not appear in the First Amendment. Nor do the words ‘freedom of worship.’ Instead, the Bill of Rights guarantees Americans something that its authors called ‘the free exercise’ of religion. It’s a significant choice of words, because it suggests a recognition that religious faith cannot be reduced to a purely private or individual affair.

Douthat makes a big deal of the obvious. Nobody can prevent you from believing something, but others can prevent you from acting on that belief. The authors of the Constitution recognized that. That’s why they guaranteed you the right to build a church (or a mosque!) where you can engage in “the free exercise of religion” with your co-religionists. You can tell each other fantastic Bible stories as if they are true things. You can proclaim that marriage is between a man and a woman. Amen, amen. You can declaim against pleasurable sex. You can walk outside the church and carry out those beliefs in the way you conduct your daily life. I won’t bother you.

But do not impose your specific beliefs on me. Stick to the general rule of religion, please, the one all religions hold: “Do unto others as you would have others do unto you.” Sometimes the solution is simple.

Marie Burns blogs at RealityChex.com

By marieburns

Readers Comments (11)

1. maineprep says:

   I always enjoy when you engage the Vatican’s Press Secretary, Marie, and today is no exception. And we get the bonus of deciding how to shun that chicken place, because corporations are people, my friend, and we’re known by the company we keep.

   First, let’s consider the hurt feelings of men who wear dresses to work and participate in the most successful Long Con in history. The Catholic Church has always been an organization filled with, to use Michael Lewis’s description of the powerful on Wall Street, big swinging dicks. Perhaps it’s my Catholic upbringing, which causes me to view nuns as bullies as well, but it’s been clear to me for years that there is no democracy in dogma, and without Catholic dogma, which Bill Maher has charitably described as evidence of a neurological illness, a lot of big egos would go need to find real jobs.

   Next, the “you’re a lesser being because the Jesus in my head says so” crowd: These days, the Dan Cathys of the world seem very put out that their life-long attitudes and activities, such as treating certain human beings like Mitt Romney’s high school victim with gleeful disdain (I have read several articles such as this one by John Shore this year about homelessness and suicides among scorned LGBT kids from Christian homes), have made them much less popular in a more enlightened world. But, rather than reexamine their consciences as the Mormon Church evidently did when it decided in 1978 that black skin didn’t necessarily make one less of a person, they, with Ross as their apparent champion, are challenging the rest of us to prove our open-mindedness by embracing their closed-minded world view.

   They say that homosexuality is a choice. I say that Jesus-approved bigotry is a choice. History, except that written in those textbooks commissioned by the State of Texas, is likely to prove me right.

   6:41 am on July 30, 2012

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2. PD Pepe says:

   Marie & Maineprep: Thanks for some delicious reading on this Monday morning. There is nothing like a dressing down of “our Vatican Press Secretary” to get you up and running.

   7:37 am on July 30, 2012

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3. alphonsegaston says:

   These Catholic dogmatists and evangelical bigots are giving us progressive Christians a bad name. In a recent column, Ross attacked those of us in the Episcopal Church, which is a lot more fun to do than bring up The United Church of Christ, where my membership resides, unless it be to smear Rev. Jeremiah Wright. Secular progressives ignore our very existence, and that of the more liberal Jewish denominations.

   Comments on columns like Ross’s most recent ones excoriate all Christians, and many of those comments come from former (“dry”) Catholics and fundamentalists. The Democratic party needs all the votes we can get in this toxic time, and the assumptions of many progressives such as Bill Maher that all Christians are right-wing and are to be ridiculed can, simply, cost us votes. This partisanship on religion can harm us. Many commenters on mainstream lib-leaning sites such as Salon and Huff Po insult any and all aspects of religion. Recently Alternet ran a piece which made the point that I am making, that we need to calm the insults to help our political cause. The commenters generally were of the opinion that “who needs the Christards” and “just because we insult their religion, they won’t vote for us, tough.”

   This election is too important (cliche, I know). Millions of Americans are relgious, and the majority are not fundamentalists or dogmatic Catholics and, like most people, do not like to be ridiculed.

   This is not aimed @maineprep or Marie personally. Or many commenters on the NYTimes, in fact.

   But the media anti-religion blitz is associated too closely with progressive values for comfort. We take the votes of the many black Christians for granted. Bad idea. I was really heartened by their shift to support of gay marriage following Obama’s announcement, but we can’t count on always having a black leader.

   I would like to think that the general public does not read these comments and follow the left’s attacks on religion, but Republicans are watching all of it and can be trusted to use it against us.

   10:06 am on July 30, 2012

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4. marieburns says:

   @alphonsegaston. “This is not aimed @maineprep or Marie personally.”

   Thanks for writing. I don’t think either @maineprep or I spoke ill of Christians in general. In fact, I specifically contrasted fundamentalist Christian beliefs with those espoused by most Episcopalian & United Church of Christ leaders. I consider any religious belief to be intensely personal & charged by personal history. If I had had a different upbringing & education, it might have taken me much longer to get to the belief system I have held for decades.

   I am not offended by what I consider the most naive or superstitious of beliefs, as long as the holders of those beliefs don’t try to impose them on me or force me to adjust my life choices to them. What offends me about Douthat is not so much the limited worldview he holds, but the fact that he uses the New York Times as a vehicle for advocating universal forced compliance with practices consistent with that worldview.

   Marie

   11:53 am on July 30, 2012

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5. alphonsegaston says:

   Well, I admit that my rant was directed away from Ross himself mainly and had little to do with what you or maineprep said. It was a lot to do with comments on columns like his on other sites, which instead of clarifying the Chick-Fil-A situation in regards to the mayors’ ill-advised threats as you do, simply attack the “delicious chicken” king for his views. And the constant and often illiterate attacks on religion in general from progressive sites. I think my buttons are being pushed by the terrifying possibility of Mitt Romney being elected.The Alternet article is “Are Progressives Harming the Cause by Attacking Organized Religion and People of Faith?” by James Rohrer. The comments there and on the Salon pick-up of the article are damaging us. I checked the Alternet site just now and found, under Belief, an article on five ways churches are getting preferential treatment. I quote from the first comment on that article–”Religion is the enemy. Religion is a form of insanity composed of equal parts of greed, superstition, and ignorance that comes howling straight out of the Dark Ages and prehistory.” And the other comments echo that view, which clings to our Cause like packing peanuts.

   Most of the progressive blogs are blind to this as a problem. We just can’t risk being shown up as anti-religion. I think the Chick-Fil-A controversy is ill-advised for this reason. We should leave it alone–it is a poisoned porkchop (or chicken filet) thrown to our dogs (no offense against dogs here).

   I too hold the view that religious belief is intensely personal, but ultra-liberal Christians such as myself are constantly being told by progressives that we do not exist, that a Christian is a Christian is a fundamentalist. My son, a much younger person of course, spends more time with progressive blogs than I do, and he is constantly identified as a troll or “really” an atheist because his theology, liberal beyond the grasp of even normal liberal Christians, does not appear to “exist.”

   The more we learn about Romney the greater my concern. We cannot, cannot, cannot, allow him to be elected. If that means taking a break from attacking religion and churches, it is worth it.

   4:29 pm on July 30, 2012

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6. maineprep says:

   Alphonsegaston, I wish it were that simple. I agree that the message preached by your founder is far more compatible with a liberal view of the world, but it’s not the secular folks who have put you in a bind–it’s those who would persecute in your name.

   Ross Douthat has decided that when he contemplates insurance companies having to pay for women’s birth control, “It’s all I can takes, and I can takes no more.” He has thrown down the gauntlet, of which he probably has several sitting around the parish house, pitting religious dogma against human health. American scientists have been denied the use of stem cells because somebody who hears voices has political clout. In Africa, religious zealots like the Pope of Rome broadcast the message that any form of birth control is a “mortal sin,” which discourages those who would use condoms and be less exposed to communicable diseases like HIV. In America, doctors are instructed by religious legislatures that they can lie to a pregnant woman if they think the woman might seek an abortion. People are suffering and dying prematurely all over the world because those who imagine they hold the keys to heaven have too much power. But that power is ebbing, and just listen to the commotion.

   Right now, we are confronted by real problems like global climate change and constant, bickering wars between foes who become better and better armed and who will soon have nuclear weapons. We don’t need the distractions of having to dodge religious land mines and continually stop to salve the hurt feelings of those whose religion tells them that this isn’t their last stop.

   Jack Mahoney

   6:06 pm on July 30, 2012

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7. alphonsegaston says:

   Yes, Jack, I agree with you BUT I believe we must win this election in order to accomplish these things. We need to take these religious threats to science and freedom seriously–thus, we need the Republican smarts about attracting the voters. This means walking a finer line between attacking the Catholic hierarchy and the fundamentalists AND trying to get the votes of their followers.

   By the way, I assume you refer to Jesus as my founder–Jack, my theology is way more complicated than that. I am a literalist in no sense of the word. I am a Christian because it is the mythology of my people–our version of Devil’s Lake as it were. But my beliefs are not the issue of course. Hell, I would even eat a Chick-a whatever sandwich (which are not sold around here) if it got us votes. That’s what I would do for the Cause.

   7:14 pm on July 30, 2012

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   • maineprep says:

     AG, I’m glad to know you and I will make common cause with you, just as I do with the Rev. Mark Sandlin of The Christian Left. You’re right that winning 50.1% is vitally important and that the Rovian cynics will pounce on every sincere secular pronouncement just as they went gleefully batsh*t over Hilary Rosen’s innocuous statement about the rich lady. “The mythology of my people” is a locution that will stay with me. Jack

     7:58 pm on July 30, 2012

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8. Rico says:

   You should learn more about the law before you write about it. The US Constitution places limitations on governments, not people or businesses. Free speech? If you tell your boss that he has an ugly tie, he can fire you without it being a Constitutional issue. In fact, a business can refuse to hire blacks, and there would still be no Constitutional issue.

   The laws concerning employment practices such as racial and sexual discrimination didn’t come about until the 1960s, and those are statutes passed by Congress. They have nothing to do with the Constitution.

   5:37 pm on September 8, 2012

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   • marieburns says:

     See reply below.

     8:14 pm on September 8, 2012

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9. marieburns says:

   Nice try, Rico. Congressional laws (except — technically — those never tested in the courts) must be constitutional. The courts have deemed laws such as the Civil Rights Act of 1964 — which, among other things, makes employment discrimination illegal — to be constitutional under various clauses & Amendments to the Constitution: specifically, the interstate commerce clause & the Fourteenth & Fifteenth Amendments. That is, laws have everything to do with the Constitution.

   I don’t know where you got the idea that the Constitution places no limitations on people or businesses — the “Libertarian News”? By permitting the Congress to, for instance, regulate interstate commerce, it clearly grants Congress the authority to tell individuals what they may & may not carry across state lines, ferinstance. Some parts of the Constitution have had even more direct impact: the Eighteenth Amendment prohibited individuals & businesses from selling & transporting liquor.

   Thanks for writing.

   Marie

   8:13 pm on September 8, 2012

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