Homophobia and the First Amendment

A gay-rights group is conducting an advertising campaign in my neighborhood with funding from the State Health Department. In bus shelters and on billboards, individuals declare that "I Am Gay and This is Where I Worship/Play/etc." Inevitably, the ads have offended local homophobes for whom bigotry is a duty of conscience. A representative specimen is Maureen Callahan of Waterford, who has nailed her theses to the letters column of the Albany Times Union. Her comments follow in full:

I object to funding of the "I am gay" billboards by the state Health Department. It is a violation of the separation of church and state when taxpayer money is used to promote lifestyles that are contrary to our orthodox beliefs. Our government has also crossed this line by using taxpayer funds for abortions. Religion is most certainly being "trampled underfoot"
now. It is such a shame and so very intolerant.How can a state hope to
prosper in such conditions?

Suddenly, someone on the Religious Right has discovered the "wall of separation" which, under normal circumstances, they fail to perceive within the language of the First Amendment. From Callahan's perspective, apparently, it's a one-way wall, or one with a door built in that opens only one way. There is no wall at all, as far as such people are concerned, when religion wants to influence politics, but if politics even appears to menace the prerogatives of faith, the wall is manned with archers and equipped with boiling oil.

But how, exactly, has the ad campaign breached the wall of separation? According to Callahan, the wall is breached "when taxpayer money is used to promote lifestyles that are contrary to our orthodox beliefs." The offense appears to be twofold, the crime of promoting unorthodox lifestyles being compounded by the requirement that taxpayers subsidize opinions contrary to their own. The promotion itself is a grave breach; it is a "trampling underfoot" of "Religion" and self-evidently intolerant in its rejection of intolerance.

The First Amendment dictates that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." Secularists have read this section expansively to forbid any legislation that appears to reflect the biases of a specific sect; in their view, the amendment is violated when governments make laws against homosexuality, homophobia being presumed to be an essentially religious (or merely superstitious) phenomenon. The Religious Right appears increasingly concerned with "free exercise," particularly when gay rights are at issue. Many in that faction consider it a duty of faith to denounce homosexuality and oppose efforts to ban discrimination according to sexual gender preference. Empowered by a few lines of Scripture, they must insist that homosexuality is sin and discourage people from practicing it.

This is an expansive reading of the "free exercise" clause. It reminds me of a similar evolution of politicized Islam. Not so long ago, the prevailing opinion throughout the Muslim world was that anyone who performed the "Five Pillars" of Islam (pilgrimage, almsgiving, daily prayers, etc.) was a Muslim of good standing. As well, any government that allowed the "free exercise" of the Five Pillars, including European-ruled colonial regimes, was widely considered worthy of Muslim loyalty. More recently, "Islamists" have insisted that a believer's Islamic credentials depend upon adherence to the customary regulations of shari'a, and some have gone further to insist that jihad against infidels is a sixth Pillar of religion. In many countries where Muslims are immigrant minorities, Islamists have risen up to assert that their right of "free exercise" should extend to having shari'a courts in their ghettos in place of secular law. Maureen Callahan is a spiritual counterpart to these Islamists; she insists that her "free exercise" of religion must extend to upholding her customary taboos and defending them against secular overrides. If she is not allowed to be homophobic, or if the government fails to endorse her homophobia, her freedom of religion has been violated.

I prefer a more minimal reading of the First Amendment. Government cannot absolutely forbid acts of religious worship, though it can regulate them when certain worshipful practices violate existing zoning laws. It can rule where chickens may be sacrificed, for instance, but can't ban chicken sacrifice outright. Free exercise means freedom of worship and a respect for the integrity of sacred spaces. Inside your house of worship, you can sacrifice a chicken or condemn homosexuality to your heart's content. You can even condemn homosexuality to your heart's content outside your house of worship, again thanks to the First Amendment. You can say that homosexuality is sin just as you can say that greed or violence are sins. But you're not entitled to have the secular government reflect your faith's customary preferences and prohibitions, and you're definitely not entitled to protest that your freedom of religion has been violated if your customary prohibitions have been vetoed but your freedom of worship hasn't been. Since no one religion can rule in a pluralistic society, "free expression" can only mean freedom of worship in your respective sacred spaces. Everyone has a right to pray. Beyond that, you take your chances with politics. If you lose, but can still worship as you please, you have no more right to complain than anyone else who loses a political fight. You definitely have no special right to complain because your political beliefs are based on faith. All you get then is people calling you a bigot.