The concept of religious liberty as it relates to constitutional law and property rights has been turned upside down. It’s an issue I address at length in Chapter 3 of Stolen Sovereignty. For now I want to focus on the case of a Muslim flight attendant who was fired for refusing to serve alcohol as part of her job.
The Council on American Islamic Relations (CAIR), the infamous Muslim Brotherhood affiliate, is suing on behalf of a flight attendant of ExpressJet who is asserting that her rights were violated after her supervisor refused to allow her to have a colleague take her place and serve alcohol when customers requested such a beverage mid-flight. I have seen a number of people compare this to cases of Christian business owners refusing to service gay weddings, but this comparison reveals a basic ignorance of the framework of fundamental rights.
Everyone in this country has an inalienable right to property and conscience, which James Madison referred to as the most sacred of property rights. Yet Madison made it clear that religious liberty must only be honored “in every case where it does not trespass on private rights or the public peace.” The Gifford family in New York and the Klines in Oregon represent a true case study in religious liberty. Yet, they were unable to assert religious objections to performing a service with their own private property and private businesses to service homosexual marriages. They were fined for not engaging in involuntary servitude against their religious convictions, thereby violating their religious liberty, private property rights, and pursuit of happiness and commerce. As Justice Joseph Story wrote in Commentaries on the Constitution (3: § 1870) “The rights of conscience are, indeed, beyond the just reach of any human power. They are given by God, and cannot be encroached upon by human authority.”
However, while the courts deny those most foundational rights in order to placate the new sexual identity national religion (in itself a violation of the Establishment Clause), they are to have us believe that a Muslim (or anyone else) is able to force her religious objections on another private company in a way that completely undermines the job description, thereby violating the property rights of the private business which employs her. This is what happened with Star Transport when the courts and the EEOC forced them to pay a fine for firing a Muslim truck driver who refused to deliver beer. Sure, many workplaces try to go the extra mile and work out an accommodation, but government cannot compel them to violate their guidelines or specifications agreed upon by the company’s duly elected board of directors.
Hence, a Christian, Jew, or Muslim has the right to run his business or private property in accordance with his conscience. At the same time, a Christian, a Jew, or a Muslim does not have the affirmative right to employment at any given private entity and is not entitled to interfere with the way they run their business in order to accommodate their religious beliefs. This is not complicated. This is the true meaning of “all men created equal” in terms of having inalienable rights. Yet, our legal and political system are now granting super privileges to some religions (Muslims and LGBTQW) while denying inalienable rights to those who are not in vogue with the political class.
As John Quincy Adams wrote in a letter to a German official in his capacity as Secretary of State under James Monroe,
This is a land, not of privileges, but of equal rights. Privileges are granted by European sovereigns to particular classes of individuals, for purposes of general policy; but the general impression here is that privileges granted to one denomination of people, can very seldom be discriminated from erosions of the rights of others. [emphasis added]
Thus, not only is the comparison to the Kline family scandalous, it is a 180-degree contortion of religious liberty. It’s the same sort of intellectual laziness that conflates the freedom of Americans to practice any religion on American shores with an affirmative religious right for any foreign national from Pakistan to immigrate here initially and be admitted.
Now, I hear many people questioning how the case of the Muslim flight attendant is different from Kim Davis’s refusal to sign a gay marriage license in Kentucky. After all, this wasn’t her private business.
There are a number of determinative differences:
- We have a tradition of accommodating deeply and widely held religious beliefs in the public sector as long as they are peaceful and reasonable. The airline employee, on the other hand, worked in a private sector job. Government can’t mandate an accommodation. As Madison said, a religious belief can’t trespass on private property. Moreover, airplanes are a stressful environment with limited personnel and need not be burdened with logistical complications.
- Kim Davis wasn’t merely fired; she was thrown in jail for simply asking for an accommodation.
- Kim Davis worked as a county clerk for 30 years, pre-dating the entire concept of gay marriage, which never existed on any national level until it was adopted in the Netherlands in 2001. She was following a belief “deeply rooted in history and tradition” — the legal term to assert a fundamental right — in opposition to something that is completely new. Not serving a beverage as a flight attendant is highly unusual and not deeply rooted in anything.
- Most importantly, Kim Davis was following the law. States have plenary power over all marriages. That is indisputable. Since its inception as a state, Kentucky has defined marriage as … well … a marriage. A decade ago, three quarters of the state’s voters passed an amendment affirming that definition.
- Even if one buys into the notion of judicial supremacy to redefine the building block of civilization, Davis was still following the state law on the books. Courts don’t “strike down” laws. That is a misnomer, even if one subscribes to the liberal view of the judiciary. Courts merely prevent a statute from holding the force of law for that specific plaintiff. The people suing Kim Davis were not those who were a party to the lawsuit in the Six Circuit Court of Appeals case that Anthony Kennedy overturned in Obergefell. The state still had not issued any guidance or changed the statute to accommodate the “precedent” created by this royal edict. Remember, once a marriage is no longer just one man and one woman, there is still a need to define what exactly a marriage is. That is something the court cannot and did not do. Each state needs to redraft its laws, to the extent one believes they are bound to such malarkey. That did not occur at the time Kim Davis refused to violate her conscience, as it may have in some other states.
This is one of the major reasons why I believe the courts are irremediably broken and must be stripped of their authority, at a federal level, to overturn religious liberty laws. They have bastardized the 14th Amendment to such a degree that such foundational ideals as fundamental rights, equality under the law, and private property have been flipped upside-down.
Either way, the next time you hear liberals suspiciously touting religious liberty, study the details of the case and you will discover that their view is antithetical to liberty.
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Author: Daniel Horowitz
Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.