An old chum who is at the top of the legal profession recently wrote the following sentence to me in the all-knowing spirit characteristic of liberal pundits coast-to-coast: “Under American Constitutional law, no government may accommodate religious beliefs by shifting burdens to third parties.  You may not assert your religious beliefs by discriminating against gays.” He is oblivious to the philosophical idea that the protection of any freedom automatically shifts a burden to third parties.  A protected class is the class exercising freedom of religion under the First Amendment.  Thus, while the “protected class” terminology did not come into use until the 1960’s, those protected by our Constitution can be understood to be in a protected class.

If one is an atheist living in a churchgoing community, one will feel very much of an outsider on Sunday mornings. There may be accompanying mental distress.  However, those going to church are exercising their “rights.”  You cannot claim discrimination.  It would be strange if you banded together with other non-churchgoers and vowed to have a law passed that would declare you a protected class of individuals. Then, say on one Sunday morning, if you asked your next-door neighbor not to go, and he refused to stay home and keep you company, you sued him for discriminating against you.

But then, let us say for the sake of argument, that the operant key term is not “protected class,” but is “discrimination.” Would any inconvenience experienced as a burden by a member of a protected atheist class be considered discriminatory?  How would discriminatory inconveniences (burdens) be separated from non-discriminatory inconveniences?  Presumably the following items would be taken into consideration: either financial losses, or pain and suffering.  Admittedly, it is difficult to measure mental distress even in our age of psychometrics, but presumably asking for any reasonable treatment would be considered a threshold for pain and suffering if said treatment were not done.  Yet, considering our atheist example, would there not be a difference in discrimination if the churchgoing class set on fire a large letter “A” on the atheist’s lawn on Saturday night than if a churchgoer simply refused not to go to church to oblige the atheist’s (supposedly reasonable) feeling of loneliness?

 Common sense would dictate that there is a huge difference.

So, coming back to the present…is there not a difference if a bakery or florist shop had a sign in its window saying, “Gays can go to hell; we’re not serving you,” and, as has been the case, refusing only to bake a cake or make a floral arrangement for a same sex wedding?  Yet, we find under present arrangements the courts are very quick to place a mental equivalence on all burdens, as well as to forget that the constitutional freedoms enacted in the First Amendment inevitably create burdens.  My freedom creates certain abilities for me to reject or infringe some of your freedoms.  Freedom of religion, freedom of speech, freedom of assembly, and freedom of the press are four such freedoms that are most deserving under our Constitution, and were purposely included in the First Amendment to stress their unalterable and unmodifiable nature. They are unique.  They are cornerstone freedoms. The freedoms of protected classes under affirmative action represent a Johnny-come-lately species of freedom that cannot be said to exist at the same high ethical-legal level as the other freedoms.

It should be clear that the First Amendment protects very large classes of people, almost everybody. The freedoms in the First Amendment represent protected behaviors both public and private. Thus freedom of speech protects speech acts both public and private, and freedom of religion protects acts of worship both public and private.  This becomes important when we consider, for example, the Quaker disdain in the 18^th century for the custom of gentlemen doffing their hats when passing other gentlemen.  William Penn, believing that removing his hat indicated a deference to man that was only due to God, would not remove his hat even in the presence of the King.  This was punishable by imprisonment.  But the King was in a good mood, and did not punish William.  In fact, because of his gratitude to Penn’s father, he gave what is now Pennsylvania to William.

Under freedom of religion, no one could be punished for breaches of decorum like that shown by Penn or other Quakers.  Freedom of religion in the U.S. gave Quakers relief.  Would one say that this “right not to doff one’s hat” was placing a burden upon those whose courtesy was not reciprocated?  Obviously not.  Then is it not analogous to not baking a wedding cake or not providing floral arrangements for same sex weddings?  If William Penn could enjoy this new freedom under American Constitutional law, why should a parallel exercise of religion be lost in our time?

One reason for our lost sense of the meaning of freedom of religion is the demoting of freedom of religion in our law.  It was one of the “big four” found in the First Amendment, but now it has been   listed as only one of the categories in affirmative action.  Religious beliefs and practices are thus to be considered an identity like one’s gender, age, or race, whereas in the First Amendment religion is seen as an expression of an ultimate, metaphysical category that transcends one’s identity.  “Freedom” in the First Amendment is linked to ontology, not to identity. It is an ontological exercise of freedom not freedom conceived of as mere choice or preference. A religious person lives in God and for God.  He or she is not merely “oriented” towards God.

Lastly sexual orientation originally came into affirmative action under the protected class of “sex.” But an interesting shift had taken place.  Discrimination based on sex meant discrimination against women, a biologically defined category.  Age is based upon biology. Race is based upon biology.  But discrimination based on sex as it applied to homosexuals was based upon defending the right to certain behaviors or desires.  The law bars discrimination based on sexual orientation.  However, “oriented” is a weasel word.  It is evasive insofar as it points neither to biology nor to ontology. It is protecting an undefined collection of actions and urges.

Thus we see that a highly populated and time honored class of protected actions/persons, namely worshippers of God, has been downgraded by the application of law to “protect” a recently created and ill-defined class of persons. Standards of what may or may not be considered burdensome to protected religious persons and to those who supposedly need to be protected from those religious persons have become confused and distorted.  Moral legitimacy of protected Constitutional freedom has been replaced in law by an alternate moral reality than that used when this country was founded.