Madison Did It Better

The First Amendment to the United States Constitution, as conceived by James Madison, went like this:

“The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed. The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable. The people shall not be restrained from peaceably assembling and consulting for their common good; nor from applying to the Legislature by petitions, or remonstrances, for redress of their grievances.”

In hindsight, keeping this version instead of the zero calorie version we now have would have been best. Why? I won’t make you wait to the end of this essay to find out. The reason is at the end of the first sentence in Madison’s original: “nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed.”

The Freedom of Conscience.

This means, quite simply, that you have the right to your own thoughts and mind. You have the right to believe anything you want. You have the right to conduct yourself in good manner according to your own will, desires and convictions. This, of course, is provided you do not infringe on this right for others to do the same.

And yet, we’re stuck with the diet version of the First Amendment where no mention is made of Conscience. This, has sadly led to the problems were facing now with Religious Rights Bills and the LGBT community.

In 1993, the federal Congress passed, and President Bill Clinton signed, the Religious Freedom Restoration Act which forced the government to find the least restrictive means when they found a “compelling reason” to interfere in a religious freedom. The government was not allowed to “substantially burden” a person’s exercise of religion.

The 2014 Burwell vs Hobby Lobby case changed all that because it changed the definition of “substantially burdened”. Now something as simple as birth control was considered a substantial burden. This precedent loosens up the doors of what else can be considered burdened.

Think about it. I can’t sue my employer if he requires me to work on a Sabbath Day when I want the day off to attend a baseball game. But I could sue my employer if this caused me to go against my religious belief that I was prohibited. Clearly, from this example, religion is granted preferential treatment.

Freedom of Religion bills, in whatever language they choose, are a veiled freedom to hide your conscience behind your religion. They absolve the person from responsibility. However, a better idea is to enact a Freedom of Conscience bill. This would keep with the principles of life, liberty and the pursuit of happiness but force the opinion holder to be accountable for their beliefs and actions that result from them. James Madison’s original First Amendment would have brought this out.

The Freedom of Conscience bill would also solve the controversy regarding who you must interact with, conduct business with.

Here are two scenarios:

Scenario #1) I own a bakery. And a black man and white woman come in and ask me to bake a wedding cake for their pending wedding. And I say, “By Deuteronomy 7:3, where the Lord prohibits the marriage between two cultures; whereas the white culture subjugated the black man and was given possession of his land by the Lord for the Lord allowed this according to plan, the races should not be mixed.” And I wrap it up with some poetry and say, “By Daniel 2:43, just as a mixture of iron and clay will not hold, neither will a marriage of mixed people.” And then, “It is against my religion, I won’t make that cake.”

Scenario #2) I own a bakery. And a black man and white woman come in and ask me to bake a wedding cake for their pending wedding. And I say, “That is yucky. I do not think black and white should mix. Black people would still be throwing spears in Africa if it weren’t for Europeans bringing them to civilization. In good conscience, I won’t make that cake.”

Which scenario is worse? I challenge the worse is Scenario #2. It’s because in Scenario #2, we immediately know that the hypothetical bakery owner is bigoted and this couple should share some harsh words and immediately take their business elsewhere. They should also contact the local media and let this bakery fold under it’s owner’s own terrible attitude. The bakery owner is responsible for his own opinions and therefore, responsible for trashing his reputation.

In the first scenario, that isn’t possible. The shield of religion is in place. The bakery owner can absolve his opinion by saying he’d love to bake the cake but, god says he can’t. He can act like he’s under duress by the only thing ensuring his afterlife. Man is beneath the gods and we can’t make another man choose between man’s law and his gods. And so in Scenario #1, the man can still mingle in polite society. The media would be criticized if they treated him poorly.

And yet we allow this very behavior in hypothetical Scenario #1 with the rash of State Religious Freedom bills that have been circulating over the past few years. As of this writing, there are twenty-one states with bills enacted into law which gives special permission to deny a service or product on the basis of a person’s religious conviction. Although Scenario #1 is bigotry against a black and white couple, what the religious freedom bills have mainly been engineered to accomplish is to deny services and products to the LGBT community if a person holds a religious conviction against the lifestyle. I say, engineer a bill, if you must, to make the bigoted business owner accept responsibility for such a belief. Enact a Freedom of Conscience bill instead.

Wouldn’t a Freedom of Conscience bill be superior? Everyone, religious or not, would have a recognized right to interact with, or not, and do business with, or not, people of their choice. And they’d have to go about their lives taking responsibility for their choices.

If the bakery owner does not want to be part of a Nazi wedding, he doesn’t have to bake a Nazi cake. If a photographer doesn’t want to photograph a lesbian wedding, he wouldn’t have to. If a business did not wish to set up more than two restrooms (male/female), they wouldn’t have to. If a surgeon chose not to perform sex-reassignment surgery, he wouldn’t have to. However, they would have to admit that these were their personal choices and would suffer the consequences or, perhaps gain support as I suspect a denying Jewish baker on a proposed Nazi cake would earn. In any case, what these examples demonstrate are allowing the free market to choose who stays in business and who doesn’t. No one gets a pass because their god told them this is how things are done. They can’t pass off their conscience on an ancient text. No, in a Freedom of Conscience bill, they would have to take responsibility for their choices and accept the consequences.

I’ll say it one more time, a Freedom of Conscience bill would allow everyone to benefit living their lives, interacting or not with the people of their choice. Everyone would also have to take responsibility for their behavior and, in a true free market, suffer or thrive.

Now, I hear the objection. “How would this hold up in, say, Nazi Germany?”

Good question. It wouldn’t. Because Nazi Germany wasn’t a free market.

Although the Jew in Germany was persecuted and looked down upon for centuries, they were emancipated in 1848. From then until the rise of the Third Reich, German citizens frequented the businesses of Jewish doctors, lawyers, store owners and thousands of others. Despite the deep seated anti-Semitism, the market dictated welcome interactions. And if one particular citizen was too anti-Semitic to frequent a Jewish business, he went elsewhere or competed in the market by opening his own competing business. It was only when the Third Reich came around that through state sanctions, the Jewish citizen was reduced to non-citizen and problems occurred. Now the anti-Semite did not have to compete. He had Hitler authority.

As I was completing this essay I ran into this essay. I think it’s an excellent companion (and maybe superior to my own). I recommend reading it. It doesn’t only address the Nazi wedding cake, but Jim Crow Laws. Freedom of Conscience benefits everyone in a real free market. If the states currently having problems with their Freedom of Religion bills looked more towards a Conscience bill, accusations of state sanctioned preferential treatment for religion wouldn’t be an issue.

You have the right to your own conscience and either welcome diverse people into your business, personal life, or not.

You have the right to be a fool by harboring bigoted beliefs. But you must accept you chose this.

You have the right to destroy your own reputation. But you must accept you chose this.

You have the right to your own thoughts and should be allowed to live accordingly, granted, of course, you allow others the same.

But as long as the free market is allowed to operate, the bigot will fail and the person looking to serve and diversify and find kindness and charity for all, will thrive.

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