A man tells you he wants you to be part of his religious service. You will participate in prayers, listen to sermons, and either join in or stand reverently as hymns are sung and religious rites are performed. But the service worships a different god from your own. In fact, the service blasphemes your God. The man offers to pay you, but you nevertheless respectfully decline to be involved in or participate in this religious service. So he goes to the authorities and demands that the government punish you for your resistance. If this religious service is a same-sex wedding don’t go to the ACLU looking for help.
Of all of the principles that the left is suddenly willing to sacrifice on the altar of same-sex marriage – free speech, free exercise of religion, the rule of law, the right to vote, etc. – the most surprising to me is that it is now demanding compulsory participation and support of religious services. Most Americans would probably say that the single issue that defines groups like the ACLU or Americans United for Separation of Church and State is “Separation of Church and State.” But today these are some of the loudest opponents of Religious Freedom Restoration Acts and would have government fine those who will not participate in a religious service. This is, of course, what we are talking about when we debate (if that term is applicable to the hysterical fact-impervious claims and bullying from the left in Indiana last week) whether government should punish people who will not serve a same-sex wedding.
Not every same-sex wedding is a church wedding. But some are. And with entire denominations caving to the demands of this agenda and endorsing same-sex “marriage,” this may become more common still. It is inevitable that as Christian videographers, wedding coordinators, musicians, and others are called upon to provide their services to same-sex weddings, some will have to be physically present, even participating in religious worship where they believe the prayers prayed, hymns sung, and scriptures read are actually blaspheming their own God. Indeed, the left has even attempted to force a pastor to perform a same-sex wedding that would violate his faith. The opponents of RFRA are still quick to deploy their “separation of church and state” cliché, but one side is demanding that the state fine people for declining to participate in a religious service. It isn’t mine. It’s the ACLU and its allies who are ready to use the power of the state to compel unwilling people to participate in religious services.
One might object that no one is being forced to actually participate in a religious service or to pray. They are simply being required to be present and respectful while others pray. But this is not how the strict separationists have historically understood government compulsion to pray. In Lee v. Weisman, for example, they successfully argued that a prayer offered by others in the presence of students at a graduation ceremony “coerced” them into participating in the prayer. Students would feel social pressure to
stand as a group or, at least, maintain respectful silence during the invocation and benediction. This pressure, though subtle and indirect, can be as real as any overt compulsion. … There can be no doubt that for many, if not most, of the students at the graduation, the act of standing or remaining silent was an expression of participation in the rabbi’s prayer. That was the very point of the religious exercise. It is of little comfort to a dissenter, then, to be told that, for her, the act of standing or remaining in silence signifies mere respect, rather than participation. What matters is that, given our social conventions, a reasonable dissenter in this milieu could believe that the group exercise signified her own participation or approval of it. Finding no violation under these circumstances would place objectors in the dilemma of participating, with all that implies, or protesting.
Frankly, I think Justice Scalia’s dissent in Lee got it right. The students were not being “coerced” by government to do anything. But that is not what the ACLU and its allies argued. And Lee is no doubt right insofar as it holds that actual government compulsion to pray would violate multiple clauses in the First Amendment. In the context of public accommodation laws applied to require people to participate in worship services that blaspheme their God, the ACLU and its allies would use the power of the government to fine and prosecute dissenters.
Of the same-sex marriage agenda, Erick Erickson has coined the phrase, “You will be made to care.” It seems that it may be worse. At least in some cases – You will be made to worship their god.
Casey Mattox is Senior Counsel for Alliance Defending Freedom. You can follow him on twitter at @CaseyMattoxADF