The central absurdity is this: These "religious freedom restoration" bills are widely known to be little more than an excuse for anti-gay discrimination, but are so poorly written that they could be invoked for discrimination of practically any kind.

Why limit the scope of religion-based intolerance to certain lines from Leviticus? The way these laws are written, if a Christian deli owner wants to refuse service to a Muslim or a Jew, he can.

Or vice versa: An Hasidic barber could turn away anybody who asked him to cut the hair around his temples. A Sunni short-order chef could deny shawarma to any infidel.

The way these laws are written, making a sandwich is an act of religious faith. Baking a cake is an act of religious faith. Emptying a septic tank could conceivably be argued to be an act of religious faith.

On a more practical and serious level, this law would allow religiously affiliated hospitals to refuse emergency service to certain patients. You want to pray for something? Pray they wouldn't do that, but if this law goes through, it would be lawful.

This is bad law. Arizona may be grabbing all the headlines, but similar bad law has been proposed, bipartisanly, right here in Ohio, and a variety of other places.


The very name, "Ohio Religious Freedom Restoration Act," implies that religious freedom needs restored.

I assure you, the Establishment and Free Exercise clauses of the First Amendment is all the protection both of religion and from it that this country has ever needed.

Ohio's law is tamer than Arizona's, but would basically allow any wingnut to sue the state for any perceived burden on their religious faith, and collect damages. It would allow "religious burden" into standing in most judicial proceedings.  

So we see that, after finding themselves on the business end of a dozen different hidings from federal courts in their attempts to suppress equality, the religious right is now playing out their swan song on the issue.

They see themselves as victims, somehow, because their religion-based intolerance is now so obviously on the wrong side of history that to them the rest of us are, apparently, conspiring against their faith.

But while private discrimination is constitutionally protected, public discrimination is not, and it demands a different metric.

This type of thing has played out before.

In the 1880s, the Supreme Court of the United States sanctioned public discrimination at the hands of businesses. Business owners at the time cited the First Amendment as well: Their right to assemble, and choose with whom they assembled.

When the Civil Rights Act was passed in 1964 it wasn't long before SCOTUS affirmed the authority of U.S. Congress to ban race-based discrimination through the Commerce Clause of the U.S. Constitution.

At this point, however, sexual orientation-based discrimination does not enjoy such protection, and is left to the various states.

In Ohio, private businesses are currently free to discriminate against employees on the basis of sexual orientation. And while Ohio's hate crime laws address violence based on race, color, religion or national origin, sexual orientation and gender identity are not included.

So no wonder some of our legislators believe that if a business is allowed to discriminate against its employees on the basis of sexual orientation, why not their customers as well? And they can shield themselves with religious freedom to do so.

Now, I won't have been the first to point out that this doesn't speak to a refined sense of business acumen. When you start putting barriers up to who can and cannot be a patron of your business, faith in your sandwich-making, cake-baking, and septic tank-emptying abilities must be high.

And of course, this argument is inevitable: Let the "invisible hand" take care of it. You don't like the business, don't shop there. Well, no shit. But let's not conflate the theories of capitalism with the wellbeing of our commonwealth.

And let's consider this: 

Would you support a religious shoe salesman's right to refuse service to a gay man? Would you support a gay shoe salesman's right to refuse service to a member of the Westboro Church?

It seems to me that the selling of shoes has no consequence related to one's sexuality, nor one's religious mores. I can't recall discussing either subject during my last footwear purchase. But that's just me.

Let's try another example.

Republican lobbyist Jack Burkman is currently on a mission to pass a law that would ban gay athletes from playing in the National Football League.

Regardless of this stupid and futile effort of his, under current Ohio law, team owners already can discriminate against players based on sexual orientation. And under these poorly written proposed laws, an uber religious team owner would be well within his rights to refuse to serve gay fans as customers. (NFL owners are generally not stupid enough to make such a gaffe.)

My mind turns to the good Mr. Madison's Federalist No. 51: "It is of great importance in a republic not only to guard the society against the oppression of its rulers but to guard one part of the society against the injustice of the other part."

Does protecting a minority population from the injustice of commercial discrimination prohibit the free exercise of a merchant's religion? (First Amendment) I fail to see how. If your goal is to never do business with so-called sinners (of any type or any stripe), there is no right racket.

Do these state laws tacitly abridge the commercial privileges of certain United States citizens? (Fourteenth Amendment) Well, under the law would certain citizens not be privileged to commercial services others are not? And would that not be an abridgment of the commercial services available to those others?

If this isn't vetoed in Arizona, if this becomes law in Ohio, it will only be a matter of time until the courts decide. And of course, if U.S. Congress is inclined to act, they could do so again under the Commerce Clause.

But until that time, it seems to me sufficient to recognize that these laws are arbitrary, unnecessary, and astoundingly poorly written: In short, bad law. And those who support them are simply bad lawmakers.

Find Senior Writer David DeWitt on Facebook and Follow on Twitter @TheRevDeWitt.

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