December 20, 2013 ( – Earlier this week, published an article describing how the New Jersey State Senate pulled a bill that would have codified same-sex “marriage” in the state. The bill was pulled because, despite concerns among conservative Democrats, national homosexual advocacy organization Lambda Legal and a number of politicians said its religious freedom protections were unnecessary.

One of the people who believes religious protections in the bill were unnecessary is openly gay New Jersey Assemblyman and Assembly Deputy Majority Leader Reed Gusciora. Gusciora told that he believes “religious exemption[s are] just a codification of the First Amendment. While we're at it, why don't we recodify the Second Amendment, and reaffirm the right of gay people to carry guns?”

Gusciora also said that conscience protections are unnecessary, and harmful to society, comparing conscience objections (like those of the baker in Colorado) to homosexual relationships by business owners to the landmark Heart of Atlanta Hotel's Supreme Court case. The Court ruled that the Hotel, which discriminated against black Americans, could not ignore the Civil Rights Act of 1964.


And thus we run into the crux of one of the most important questions in modern America: Are the consciences of the American people protected under the First Amendment? And do laws preventing discrimination against those with immutable characteristics such as race carry over to those in homosexual relationships?

I went to the Alliance Defending Freedom for the first question. Here is what I was told by David Cortman, Senior Counsel and Vice President of Litigation:

There is no religious freedom without the freedom to actually live according to one’s faith.  Elected officials should better understand the meaning and purpose of the First Amendment, especially since they have the power to make policy. Any proposed law that threatens fundamental freedoms guaranteed by the U.S. Constitution should be dead-on-arrival, and the politicians who put them forth held accountable by the people.

In other words, your religious rights don't end when you leave your church. They don't end if you're a private business owner instead of a pastor at a religious institution. Just like the HHS contraception/abortifacient/sterilization mandate – something Gusciora said he did not want to comment on – which has been ruled against by over 30 court decisions across the country, the freedom to practice religion is as important as your freedom to go to a church, mosque, or synagogue.

However, the Supreme Court has ruled against discrimination before, in the Heart of Atlanta Hotel case and others. Here, Gusciora is committing the same – perhaps purposeful? – error that many others of his political views do: conflation of an immutable characteristic with a choice.

Simply put, it has been found that discrimination on the basis of unchangeable traits like sex and race can be illegal. However, discrimination on the basis of choices, such as the one to engage in a homosexual relationship, is very different. This is not discrimination against a homosexual, per se – each of us is loved and cherished by God, after all. The question is whether those who oppose homosexual relationships wish to enable immoral relationships, something that has to be decided individually.

Technically speaking, the Heart of Atlanta Hotel case was ruled on the basis that the Commerce Clause in the Constitution allows Congress to tell business owners what to do with regards to discrimination on the basis of race. The question now is whether the Court may eventually expand the Commerce Clause to include religious-based conscience protections, something the HHS mandate case it is now hearing will go a long way towards deciding.

Perhaps most importantly, the argument by Gusciora ignores property rights. If a same-sex couple can walk on to my property and demand services, that property is no longer my own. This is not like domestic abuse, which denies basic decency, charity, and respect to another, or murder, which denies God-given life. In those cases, the government is right to interfere. Coming on to someone's property and demanding a service is an atrocious violation of property rights, something that has helped make America the most prosperous and one of the most free countries in the world. Without that protection, the short road to government tyranny regarding property rights is started upon.

Should discrimination be allowed in a free society? According to Gusciora and those with his political and philosiphical beliefs, no. I disagree. If you don't like that a business discriminates against a person on any basis, boycott. Don't buy those products. Protest in a legal and constructive way. But going to the government to – as is the case in Colorado, for example – fine someone for standing up for beliefs, especially religious ones, is well beyond the pale, and well beyond the scope of the government's constitutional reach. 


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