The Arizona religious freedom issue reminded me of a fifty year old conversation. One of my neighbors was upset over the new civil rights legislation, complaining that it stripped him of his freedom to live where he wanted to live, which was in a restricted neighborhood that kept out blacks and Jews. He could not grasp the idea that everyone should be free to live where ever they want (or could afford). He could not grasp the idea that choosing where you want to live does not give you the right to choose where someone else can live. It simply did not compute. That was fifty years ago. The law is well established. Beliefs and attitudes are still on shaky grounds.
The issue, it is said, is religious freedom, enshrined in the Constitution and inviolable. But shedding that veneer reveals the same old argument that one should have the right to restrict the neighborhood; in this case, who I will or will not do business with in the public market place based on religious conviction.
It may be the same old argument, but because it's framed in the context of religious freedom, it demands a deeper examination of what religious freedom means. The Constitution is not clear on that. It simply prohibits the government from establishing a state religion. It has come to mean that each person is free to enjoy whatever religion they like, and that others cannot be compelled to practice that religion. It is a freedom that is not without limits. For instance, the question of compelling others to listen to Christian prayer as a cultural standard in the classroom and at public events has been hotly debated. One end of that debate is determined to defend such prayers in the firm belief that being "one nation under God" means one nation under a Christian understanding of God, or at least a Judeo-Christian understanding of God. In other words, one should be free to practice any form of Christian or Judeo-Christian religion. Anything else might be tolerated, but within limits and under supervision.
That side of the debate has obvious fallacies, but that doesn't keep it from being a deeply held emotional conviction, an all but unshakable prejudice. Unshakable as it might be, we, as a society, are even more determined to use civil authority to prohibit one religious expression from compelling others to be exposed to it, and the debate rumbles on. There are other limits to religious freedom that are more legitimate because they are more commonly agreed to: child and sexual abuse for instance. As a society we not only condemn such abuses within the house of religion, but intercede with civil authority in spite of claims of religious freedom. In other words, even in America, constitutionally protected religious freedom is not unrestricted religious freedom. There are limits, but what are those limits?
In the case of the Arizona legislation, as well as similar legislation proposed in other states, the idea is that a person doing business in the public market place can use their religious belief to deny service to a member of a class of persons, even though that service is available, without restriction, to all other members of the public. Before you jump to conclusions, it's not as clear cut as it may seem. Not only do we have to ask what constitutes a religious belief, but we also have to ask what constitutes denial of service. Here's an example. If I go into a kosher deli and order a ham sandwich, I will be denied that particular service on religious grounds. On the other hand, I can order anything on the menu of kosher items. I can check into a Marriott hotel without being a Mormon, and though I know there will be a Book of Mormon in the night stand, I will not be compelled to look at it. One denies me the right to a ham sandwich on religious grounds. The other, on religious grounds, offers me an opportunity to be exposed to the LDS but does not make it a requirement of my stay. Neither of them denies me service because of the class to which I might belong. Or consider this; the state defines marriage and makes me, an Episcopal priest, an agent of the state authorized to certify that a marriage has taken place. But my church is is not wholly in the public market place. A significant part of it is in the private domain of religious belief, and within the context of my religion, I, under the discipline of my denomination, am the sole arbiter of at whose marriage I will or will not officiate, and I do that on religious grounds.
What it gets down to is this. If you want to do business in the public market place, you are free to offer whatever legal product or service you like, and that product or service can be heavy with religious content: a kosher deli, a Mormon hotel, a Christian bookstore, a shop filled with Wiccan crystals, Rastafarian gewgaws, you name it. You can restrict what you sell, but you cannot restrict who you sell it to on the basis of some class of person to which they may belong.
Thanks to constitutionally protected religious freedom, and within the context of a house of worship, restrictions can be placed on who may enter and who may be served using religious belief as the standard. Outside of that context, in the more public arena, some restrictions can be placed on customers, such as "no shoes, no shirt, no service," but they are limited and not always enforceable. The moment you define the customer to be denied service on the basis of what class of persons she or he might be, or what he or she believes, using religious freedom as your shield, you have trespassed beyond the realm of religious freedom and into the realm of Jim Crow.