Religious Freedom vs. Secular Law

LGBT-friendly business notice

A source of disagreement that continues to polarize American society is allegations by religious believers that religious and speech freedoms are being crushed underfoot by secular laws and court decisions. If one tries to look coldly and objectively at the reality, the situation is not nearly as serious as religious believers routinely assert. The one area of exception is impacts of laws on religious practices in commerce. Impacts on private religious practice mostly range from zero to low and impacts on religious beliefs are zero in all contexts.

In June 2015, the Supreme Court held in Obergefell v. Hodges that a fundamental right to marry existed for same-sex couples under the equal protection and due process clauses of the 14th Amendment. The decision was 5-4 along the liberal vs. conservative divide. It is reasonable to expect that within the next 3-6 years the Supreme Court will reverse that decision and the right will revert to the states.

In the years leading up to the Obergefell decision, conservatives argued, among others things, that same sex marriage was an intense attack on religious freedom and associated freedom of speech. In hindsight, Obergefell probably was a modest to significant factor in Donald Trump's election. Many or most religious conservatives saw American society as launching an all-out war on religion and associated religious freedoms.

Things that can obscure the view - the fog of unconscious bias

Where's the beef?: In the years leading up to Obergefell, there was a lot of debate. As usual, the two sides mostly talked past each other. Also as usual, the combatants tossed out endless arguments based on undefined concepts, e.g., attack on exactly what religious freedom, and unquantified effects, e.g., exactly what are the benefits and burdens in clear, real-world terms.

Making one's own beef: Although someone somewhere probably did an analysis and published it somewhere, there was essentially no acknowledgement by either side of a brutally honest cost-benefit assessment. Essentially no one in the partisan wars was even asking about exactly what freedoms were benefited or burdened by how much and for whom did these costs or benefits apply? Being ignorant of an analysis and tired of the usual empty left vs. right blither, trying to do a home-grown cost-benefit assessment seemed worthwhile. So, that was attempted.

In essence, weighing costs and benefits to freedoms is a matter of generating one or more algorithms that can provide at least a rough burden and benefit estimate. Although the task seemed simple at first, it wasn't. It quickly became obvious that at least two separate algorithms would be needed because impacts on affected groups varied depending on the freedom context. One algorithm focused on cost-benefit in the context of freedom of religion. The second was for cost-benefit in the context of freedom of commerce or economic activity. Once that became clear, the task was fairly straightforward, but still a bit more complicated than one might expect.

Obviously, not all impacts could be assessed, e.g., people's psychological comfort or discomfort with the thought of a wrong-sex person using a public bathroom, even if that might be a rare event or one that a correct-sex person in the bathroom wouldn't always be aware of. Nonetheless, the algorithms were designed to look directly and objectively at the core arguments the two sides were blindly arguing against each other with little objective data for either side being used.

Impacts on freedom of religion and religious speech: Different groups and their sizes that were obvious to consider included number of adult Americans, number of LGBT Americans, number of religious adults, number of religious adults who supported or opposed same-sex marriage, etc. The data was based on poll numbers. The detailed analysis is here.

The logic behind the algorithm was simple. For example, religious freedom burdens for religious opponents of same-sex marriage would obviously be greater than for (i) non-religious opponents, or (ii) all, including religious, people who supported same-sex marriage (most Americans at the time the analysis was done). The trick was to quantify (estimate) burdens and benefits. Obviously same-sex couples who could now marry got all sorts of benefits, e.g., rights of inheritance and other family and spousal benefits that marriage confers. Burdens on religious opponents were more complicated but still estimable to a reasonable degree.

The bottom line was that impacts on religious freedoms weren't severe. Instead, some religious people reacted vehemently and emotionally, but the actual burden on their real-world freedom to practice their religion any way they wanted was low to non-existent. By contrast, the benefits to same-sex people, a small group (about 9 million) who could now marry were very high. The table below outlines the underlying assumptions, logic and rights-impacts for supporters of same-sex marriage.

Impacts on opponents of same-sex marriage are shown below.

IVN published a summary of the analysis that I wrote for them. The public response was nil. In line personal expectations, people weren't much interested in hearing about freedom-rights costs and benefits on an issue that was tearing American society apart. By then, October 2015, it was clear that facts, logic and reason on divisive political issues weren't of much interest to more than a tiny sliver of the American public, maybe about 0.1% based on personal experience.

Impacts of same-sex marriage on freedom of commerce and economic activity: This analysis gave vastly different results. That is because about 142 million people lived in the 22 states and D.C. that had laws banning discrimination in commerce based on sexual orientation (not based on discrimination against same-sex marriage per se). Data: 44% of all U.S. residents reside in states with an anti-discrimination law.; 56% of all people reside in states with no anti-discrimination law.

The detailed analysis is here and the article that IVN published is here.

The upshot was that impacts in commerce for same-sex marriage opponents could be severe enough to put some business owners out of business and their employees out of jobs. Again, public response to the analysis was nil.

The point of this discussion: A reasonable response to the foregoing might be something like "So what?" Good question. So what, indeed. Arguably, looking at freedom burden and benefits would help partially rationalize debates about many issues where the usual left vs. right debate is based on undefined, unquantified concepts, e.g., exercise of religious freedom, burden on freedom of speech, burden on business operations, benefit to society. Based on human cognitive biology, that approach to political issues is a non-starter.

Politics is mostly intuitive, moralistic and intolerant because that's how the human mind processes inputs. Personal beliefs are mostly driven by things other than unbiased facts and logic. Freedom of speech that protects dark free speech as much as honest speech is a major factor that fosters and amplifies unconscious, moralistic thinking. The human species has to survive or die off based on its evolutionary cognitive heritage. Time will tell if that's for better or worse.

B&B orig: 1/28/18