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Religious Liberty and the Right to Moral Discrimination

By Marty Owen

In the present cultural and legal climate of the United States, the word “discrimination” has become like the “hot potato” of the popular children´s game–a word that no one wants to be caught holding when the timer set by the ACLU or some other litigious organization happens to go off. It is the fear of being accused of defending discrimination that leads many politicians–even those on the right of the political spectrum–to deny that Christian business owners have any legal right to deny particular services to homosexual couples who request those services. The claim of the left is that, if Christian business owners are allowed to decline from providing services for same-sex weddings, for example, that will institutionalize mistreatment of homosexuals by acknowledging a legal right to discriminate against them.

Many conservatives are failing to respond adequately to the left by refusing to address the real issue at stake here–namely, the constitutionality of anti-discrimination laws that criminalize all acts of discrimination without exception. Such laws fail to take into account the various shades of meaning attached to the English verb “discriminate” and the clear distinction that must be made between various kinds of discriminating acts. Such broadly written laws, by their very nature, undermine the first amendment, for they overlook a very important fact–namely, that the exercise of religious liberty ALWAYS involves the freedom to make morally discriminating decisions based on the dictates of a religiously informed conscience. Therefore, to outlaw all discriminating acts without exception is, in essence, to outlaw the first amendment itself.

Conservatives have failed to make this argument in the courts and in the public square–no doubt because they fear it will fall on deaf ears in our politically correct culture. Nevertheless, sound logic requires that we make this argument, because it is supported by the facts. The exercise of religious liberty requires the freedom to make morally discriminating distinctions between particular acts of service offered, and therefore, the freedom to make such distinctions, must be regarded as a right protected by the first amendment.

This argument is logically irrefutable. According to the Merriam Webster dictionary, the first and most fundamental meaning of this verb “discriminate” is “to mark or perceive the distinguishing or peculiar features of.” When a believer in the the Amish or Mennonite faith refuses to take up arms during a time of war, that refusal is clearly based on an exercise of moral discrimination. Though others may not perceive the act of taking the life of an enemy combatant on a battlefield as the moral equivalent of murder, the Amish or the Mennonite believer does. He cannot in good conscience take up arms to kill another human being under any circumstances whatsoever because of the peculiar features that he perceives in that particular action–a perception rooted in the teachings of the faith that he espouses. So all must admit that at the root of his refusal to take up arms is an act of moral discrimination between the types of actions that he is and is not willing to perform in the service of his country.

It would be most unfair to accuse the conscientious objector of having “moral animus” toward his country because his religiously informed conscience does not allow him to perform particular acts of service in its defense. Yet that is the very accusation that is being made against Christians who refuse to provide services for a ceremony solemnizing same-sex unions. They are being accused of having “moral animus” against homosexuals and practicing wholesale, blanket discrimination against them because they refuse to provide goods or services for a particular ceremony solemnizing a type of sexual union that their faith does not allow them to regard or treat as a marriage. In actual fact, they are doing the very thing that a conscientious objector does when he refuses to take up arms, by refusing to perform a particular act of service that violates their religiously informed conscience. There is no difference between these two acts of refusal, and for that reason, our civil code should accommodate the one act of refusal as well as the other. In both cases, citizens are making a morally discriminating distinction between particular acts of service based on the dictates of a religiously informed conscience, in keeping with their constitutionally protected right of religious liberty.

Conservatives are failing to win the case for religious liberty because they are failing to point out how the left is using the word “discrimination” too broadly as a torpedo to sink all efforts to defend the free exercise of religious faith in America. Conservatives must stop playing the political correctness game with liberals by calling the left to task for its abuse of the English language. We must hold fast to the “hot potato”! We must say to the left, “Not all acts of discrimination are the same, nor may they all be regarded as unconstitutional!” Conservatives must insist that the exercise of religious liberty requires the freedom to make morally discriminating judgments, and therefore, business owners must be free to make such judgments in determining the goods or services they will offer to the public.

The secular left is clearly trying to use anti-discrimination laws as a weapon to force Christians, Jews, and others to change their way of thinking about marriage. They are trying to force them to admit that they have been wrong for millennia in the way they have “marked or perceived the distinguishing features” of same-sex unions. This attempt to force Christians to change their beliefs and act contrary to them is nothing but anti-religious bigotry and a full frontal assault on the first amendment, which protects the right of citizens to live in accordance with their deeply held religious beliefs. Such anti-religious bigotry must stop. The right of citizens to make morally discriminating distinctions between acts and services offered must be upheld. That is not the same thing as legalizing blanket, wholesale discrimination against groups of people based on personal animosity toward them or issues of personal identity. Moral discrimination BETWEEN acts and services provided and personal discrimination AGAINST groups of people in a blanket or wholesale manner are clearly two different things, and the law must treat them as such. Any law which treats all discriminating acts alike is clearly unconstitutional, for it is in direct conflict with the first amendment. This is the argument that must be made and that must win the day in America for religious liberty to survive.

By Marty Owen

Marty Owen has served in pastoral ministry both in the southern United States and in Europe. He is currently serving as a missionary pastor in southern Spain, where he lives with his wife and daughter.


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