The confrontation between proponents of and conflict between putative religious liberty and asserted civil rights has of course been the subject of much recent commentary. It would appear to me though that many of the commentators overlook at least one crucial element in their analysis.

To me one obvious element, which has already been the subject of comment by some, is whether the action by a person asserting the right to religious liberty consists of a form of creative expression rather than the provision of a fungible product. If the former, then an external compulsion to perform constitutes more of an, if not an egregious, interference with their personal liberty; this conclusion proceeds from the recognition that the coerced performer is engaged in customized activity that succeeds and is pursuant to, and arguably restricted by, the demand of the requester. In the latter situation, however, the provider has performed the activity preceding the request for supply thereof, and thus any compulsion to supply it cannot, by definition, restrict or affect activity already performed.

I though have chosen to utilize instead the criteria of whether the performance constituted some form of personal service, the law having long recognized that personal service contracts occupy a unique niche and are subject to different rules of contract. In either event what would be entailed is a person performing an activity that was special, rather than general, and thus possibly deemed constituting or implying a conscious and intentional ratification of the object and product of the activity. Other than for practical reasons, no person in a free society can be compelled to perform any action of any type; they might possibly be properly prohibited from performing certain types of actions. But the power to mandate actions of particular types, much less being compelled to engage in approbation of the principles of another, is the indicia of a tyranny.

However it now occurs to me there is another element that might even better clarify as well as be dispositive of the issue. And this would be whether the person is differentiating based upon the attributes of another or instead the activity or behavior in which they are engaged. This could be deemed parallel to the well-recognized sociological dichotomy of Status and Role.

Most service providers who object to certain activity do not resist based upon only the attributes of the requester; in such a context, since the status of the requester is only a passive element, it is only the provider’s behavior which is in question in this situation — and this therefore does not impinge on the provider’s liberty. But in the context of the activity or behavior in which they are engaged, since it is the requester’s behavior to which the provider is responding, compelling their support of it amounts in effect to participation and ratification — and this therefore does impinge on the actor’s liberty.

Is this a distinction without meaning? I tender the answer is No, it is a significant distinction. The wrong that is the gravamen of the conflict is excessive integration between the sphere of action of one person and the sphere of action of another. If the participants mutually choose to allow these spheres to intersect, then there can be no offense. But the body politic should be encumbered with the obligation to maintain separation between these spheres as much as practicable. Conflicts though are engendered and become onerous when the polity seeks to excessively enunciate and impose certain standards and modes of action that it deems principled and moral. Might not then the proper foundation of the body politic be amorality, doing neither bad nor good but only approving and enforcing policies that are quantitatively, rather than qualitatively, beneficial.

WAYNE A. SMITH
Forester Twp, Michigan USA
04 Oct 2015