Anchorage’s Proposition 5 is being watched by many around the nation and provides the perfect example of why not everyone can be expected to grasp the complex ramifications of a proposed legal change. But an appropriate legal analysis of the proposed law, which would add “sexual orientation” and “transgender identity” to Anchorage’s list of protected legal classes, demonstrates the problems it genuinely poses to religious liberty, despite the erroneous claims of some to the contrary.
Any proclamation that the addition of “sexual orientation” and “transgender identity” to the law does not impact religious freedom demonstrates a woeful ignorance of the legal landscape where these provisions have been enacted across the country. Those in favor of the measure are only technically correct in saying that the existing religious exemption in the law is untouched by the initiative. The obvious truth is that the exemption didn’t anticipate laws protecting anything like “sexual orientation” and “transgender identity.”
An exemption is designed to protect something, like a shield in battle. If the shield is untouched, then it’s not protecting anything. This is why new protections and exemptions are required if the initiative is enacted. As we all understand, if you alter one side of an equation, you must also change the other side. Otherwise, no balance remains.
The Establishment clauses of both the federal and Alaska constitutions forbid the government from dictating to people what they must believe about “sexual orientation” or “transgender identity.” The existing, inadequate “religious protection” forgets that a religious organization is composed of individual people who practice their religion in all aspects of life. Thus, ironically, in an initiative purportedly designed to help individual people, the constitutionally protected freedoms of individual people are ignored.
And what about small business owners? Every business reflects its owner’s convictions in some regard. If small business owners have carefully crafted their business and business practices around their religious or moral beliefs, are we really going to tell them that they must be forced to contradict the business’s message and image? After all, business owners are not demanding that those who define themselves according to their sexual behavior must change their beliefs.
Those who understand the courage and sacrifice it takes to start and operate a small business understand that the business’s message and identity is its business. None of us should go into a store and tell the owners that they should do things this way or that way. We speak with our money, and if a business is meeting the needs of the market, it is rewarded. If it isn’t, we quit going, and the business shuts down. In the free market, that’s how we, as a community, speak to our businesses. What we do not do is twist their arms and make them do things that violate their consciences.
So what is the harm in not protecting individuals and business owners? Under so-called “protective” laws like Proposition 5, the Alliance Defense Fund has received calls requesting legal assistance from countless business owners nationwide who are having their arms twisted. These businesses all have competitors that customers can use, but they are being targeted because someone doesn’t like what they believe and will use the sword of the state to extract their pound of flesh—all in the name of “tolerance,” naturally.
If we, as Americans, are truly devoted to the idea of freedom, then let’s collectively dedicate ourselves to protecting the God-given, constitutionally protected freedom to express only those ideas and messages that we wish to express.
Recently, a federal appeals court reminded us all that “tolerance is a two-way street.” The lack of tolerance for religious and moral beliefs in Proposition 5 should put every citizen of Anchorage—and America—on edge. No one should be forced to celebrate behavior that directly conflicts with their beliefs.
If the choice is between preserving everyone’s rights of conscience, on the one hand, or the threat of harsh punishment for failing to adopt the beliefs of a small group of activists under the guise of “non-discrimination” on the other, the decision is clear. Freedom wins. Right?
Austin R. Nimocks is senior counsel with Alliance Defending Freedom, an alliance-building, non-profit legal organization that has defended marriage and religious liberty in courts throughout the U.S.
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