Tuesday, February 25, 2014

The Limitations of Government in Private Business and First Amendment Freedom of Religion

The below evaluation was completely my own, but my analysis is backed up by something I read tonight, which was written in 1996 in the American University Law Review -- his arguments are mine below -- entitled, DISCRIMINATION, AFFIRMATIVE ACTION, AND FREEDOM: SORTING OUT THE ISSUES.


In 2013, the attorney general of the state of Washington filed a lawsuit against Barronelle Stutzman and Arlene’s Flowers after she refused to create flower arrangements for a same-sex wedding, citing her religious views.   This is well-known one of several similar cases now occurring across the country.  As a result, the governor of Arizona has a bill on her desk to sign that protects the rights of religious citizens like the florist.  Many well-known Republican politicians are urging her to strike down the legislation.  The Super Bowl is in her state next year and the NFL is making a subtle threat to move it if she doesn't veto.

In the name of equal rights and equal protection of the law, the government for awhile has been eroding the rights of private businesses.  I don't mean state operations, but private.  For awhile, the state has been forcing businesses to serve customers and hire employees they don't want.  In  a related matter, if you own a private home, you are also forced by the government to rent it to people whom you don't want either.  At one time, this wasn't so.  It wasn't that long ago that you could easily reject a customer, an employee, or a renter.  It was your property and your business and you had the right to serve or hire or rent to whomever you wanted.  This was a private property right and the power of the government was limited by that right.  The understanding was that we received that right from God and not from government, so the government should not have the power to take away that right, since it didn't have the power to give it.  It was a natural right.

Our God-given, inalienable rights are being lost as American citizens.    According to the Constitution, does anyone have a right to service or employment or housing from a private citizen or private enterprise?

The above described erosion of rights for private citizens began with the federal civil rights legislation passed by the government in the 1960s.  The point of that legislation and laws like it has been now to require private citizens, businesses, and property owners essentially give equal opportunity regardless of race or ethnicity.  This has expanded to gender and now what is called sexual orientation.

In 1954, in Brown versus Board of Education, the Supreme Court ended racial discrimination in state institutions based upon the 14th amendment.  State institutions.  This did not mean that private citizens, property, and business could not discriminate for any such reason.  I'm not arguing for discrimination.  I'm simply asking if there is a right in the Constitution to stop discrimination by a private citizen, property, or business.

The Supreme Court surely did not foresee where these decisions would progress.  Now enters the free practice of religion, an actual right in the actual United States Constitution.  Would even Thurgood Marshall see a private citizen being forced to arrange flowers for a same-sex wedding as guaranteed in the Constitution?  Can a private citizen who owns a private business be forced to provide a service for a same sex marriage, when that marriage is against his religious convictions?

I have read some pro arguments for Governor Jan Brewer to veto the Arizona bill.   Some are merely arguing for why Christians should serve anyone, no matter what their sin, because that's what Jesus would do.   If Jesus was a florist, does anyone really think that Jesus would do the flower arrangement for a same sex marriage? That's absurd.  If anyone thinks that, then he doesn't know Jesus Christ.  Private businessmen want business. They don't want to lose business.  If a Christian florist rejects a same-sex wedding job, he's losing money.  If there is a punishment, that's the punishment.  If he can be sued by the United States government, state or federal, then his own right to practice his own religion freely is being violated.  This is where the wrong turn with the government intervening in the rights of private citizens has come to conflict with the very first of the Bill of Rights.

What we are reading today are "gay rights."  These "gay rights" are being read into the United States Constitution.  Are there gay rights in the Constitution?  Really?  That brings us back to a decision in 1986, Lawrence vs Texas, a landmark case in which the United States Supreme Court overturned state of Texas sodomy law.  By doing so, the Supreme Court read into the Constitution gay rights.  Now an actual right, the freedom of religion in the first amendment, is being impinged by an only so-called "right," a "gay right," not actually found in the Constitution.  Does anyone really think there is a right in the Constitution that can directly contradict an already written right in the Constitution?

Many thresholds or barriers of rights have had to be abolished to create this new "gay right," starting with private property rights all the way to a right to the free practice of your religion.  What our government would be saying is that it is against the law for a Christian in practice to reject the law of sodomy.   For the sodomite to maintain his constitutional gay right, the Christian must forfeit the right of his personal conviction.

A private citizen or business or property owner can choose not to discriminate.  Many private businesses or companies advertise non-discrimination clauses.  Our church doesn't discriminate based upon race, but I'm sure that most would say we discriminate based upon gender.  We don't have women preach in our church.  Many others would say that our church discriminates based upon sexual orientation.  You can't join our church if you're a homosexual.  We're very clear about that in our documents.  Earlier this week, I wrote about how that a college like Swarthmore wants to discriminate against conservatives who reject same-sex marriage.  Does anyone think that you could right now obtain a job at any state college with open and public opposition to same-sex marriage?  Discrimination obviously goes the other direction in this country.  I argued against diversity.  If that's what a private college wants to do, I think it should be able to do it.  Our church teaches only one point of view.  We are not diverse in our theology.  We have that right.  Our government should protect that right.

What's the legal argument for the same-sex marriage side?  Eric Holder, the Attorney General of the US under President Obama, recently advocated for attorneys general disobeying unconstitutional laws, specifically referring to Democrat state attorneys not defending laws against same-sex marriage in red states.  This is an impetus for lawlessness.  The legal argument is something like the following, you were licensed by the state to run your business, and when you paid for that license, you agreed to serve all groups.  Not exactly though.  What if they have no shirts or no shoes?  The state can defend your right there.

What we have here are at least two issues.  We have an extension of "you didn't build that business."  In other words, every business, since it receives infrastructural state support, can be regulated by the state to serve or sell to groups defined by the state.  Democrats love groups by the way.  It's how they win elections -- is by dividing the country into groups.  The Republicans are now joining them.  The other is that our country has become fascist.  The state controls private business to the extent that it can force private business to act in its own interest against the rights of the business owner.  You may not like the fascist word, but I'd be happy to hear how this is wrong.

Religious punditry, including evanglical pastors, who are in the mold of Tim Keller (pastor of Kirsten Powers) and Andy Stanley, exhort Christians to forfeit their right here for the sake of Christianity.  They make the fallacious parallel that since Christians already serve sinners in their businesses -- fornicators, adulterers, thieves, murderers -- that this is the same thing.  Really.  At what point does this stop.  It stopped at state institutions not long ago.  It stopped at race.  Then it stopped at gender.  Will it stop at the churches themselves, the private Christian schools?  Will they be forced to ordain homosexuals and hire homosexuals to teach in their schools?  Some might say, "Of course not."

But I don't really like the slippery slope argument either.  Our rights are already being violated.  If by opening a bakery, I knew I had to bake wedding cakes for same-sex marriages, I wouldn't start that business.  I couldn't start a business, because I'm a Christian.  Someone said something like this:  "Moslem businesses wouldn't have to serve Christian women who were not wearing a burqa."  Ouch.  I say, more power to them.  I will never cry or protest or sue over not having their business.  A Moslem business owner should be able to provide a business for whatever constituency he desires.  If my wife wants his business and she must wear a burqa to receive it, then she'll need to buy a burqa to get it.   That's his right.  It's not my right.

Kirsten Powers (who wrote the USA Today articles, here and here) is advancing her own agenda, not the Lord's.   She's no better than the modern church growth advocates, attempting to be "seeker sensitive."  Exposing scripture on same-sex marriage won't hinder true conversion.  She reads a message into the Bible and into the Constitution that are not in either document. She's been a professing Christian for a few short years and she already thinks she's prepared to preach to all Christians everywhere about what the Bible says about how to treat homosexuals (not a novice?).  She is a shame to herself and to God.  She has the right to an opinion and to express it in the United States, but she's wrong.  True men of God will say so.

The Lord Jesus still rules in the midest of His enemies through His churches.  Someday He will rule with a rod of iron and make His enemies His footstool.  In the meantime, we should all listen to what Peter preached in Acts 5 when the government tried to stop him from practicing his faith, "We ought to obey God rather than men."


horace said...

Mr. Brandenburg,

While I do not completely agree with Ms. Powers's position, she does have a point with regards to the Arizona law which would allow businesses to discriminate against homosexuals in all circumstances, not just with regards to marriage: for example if I ran a restaurant and I saw someone enter who I knew was gay, I could refuse service to him for that reason only. More broadly speaking, even with these anti-discrimination laws you are still allowed to refuse service (for example I see plenty of signs in restaurants that say "WE RESERVE THE RIGHT TO REFUSE SERVICE TO ANYONE")just not for arbitrary reasons such as race. Also I haven't seen Pastor Keller say anything about this law, just one of the members of his church.

I'd disagree with the idea that government restrictions on business are necessarily fascism, as fascism is an entire ideological with several distinctive political positions. After all while both Baptists and secularist social liberals believe in a separation of Church and State, that doesn't all of the former are the latter since there are other issues they disagree on.

Sincerely Yours,
Casey Cho

Kent Brandenburg said...

Hi Casey,

Are you a professing Christian?

Here is the language of the bill that tonight was vetoed by Governor Brewer: "It requires any person or organization who denies a request for service to show that their action is based on their religious belief, that they have a “sincerely held” religious belief, and that a lawsuit or other sanction would substantially burden their religious beliefs."

This was specifically passed to deal with the same-sex marriage issue. Obviously, the lawsuits will continue against private businesses. What are your thoughts about that? Should a Christian florist be forced to do floral arrangements for a same sex marriage? That's what you are supporting with a desire for a veto.

I haven't read anything from Keller on the law, but I've read a lot on how he deals with these things, so I was careful in how I stated it in my post. I'd be happy to hear factually otherwise.

I believe we are to the point of a type of fascism, government control over business. I could enumerate this, but when you take away a 1st amendment practice of a business, this is fascist. It's a strong word, but the government is acting in a way in which the state does own these businesses. It's not totalitarianism, but it is fascism.

horace said...

Thank you for responding Mr. Brandenburg,

Yes I consider myself a Christian (a Presbyterian to be exact).

I personally opposed the bill because it was far too broad in its wording and can be applied to situations far beyond the relatively rare ones we are seeing right now. And I do not believe that Christians or anybody else should be compelled to perform things such as photographing a gay marriage if he does not wish to, but those cases are fairly rare (even if simply because gays would rather do business with someone for accepting of gay marriage).

Finally Fascism is defined by Wiki as "radical authoritarian nationalism" and none of the various other definitions of fascism consider economic regulations on business the sole thing that makes a society fascist or not: http://en.wikipedia.org/wiki/Definitions_of_fascism

Sincerely Yours,
Casey Cho

Kent Brandenburg said...


Read this by Thomas Sowell:


This is far more than economic regulations on business. This is state control of a business. When a business person cannot refuse to serve a customer based on a religious conviction, the government forces it to do business, that is fascist. You say the law is too broad. You're saying that there are instances that the government has the power or authority to force a private business owner to function against his own religious beliefs.

If you are the one being sued by the state in practicing your freedom of disassociation, you are the one having the state in fact impose it's value upon you, you might think different.

You aren't thinking too deeply about what I am writing, or about what is happening.

Do you have homosexuals in your church or who at least attend your church regularly? Are you in Tim Keller's church?

Doulos said...

I am following along on this topic trying to learn from the discussion. Maybe my comment is off topic, or maybe it is not...nonetheless I am compelled to express my surface-level observation.

It is very difficult for me to have an abundance of concern/hope in matters like this in our government. How can we possibly expect any better when our churches/religious institutions don't even know their own minds on some of these issues anymore. Why are we not challenging each other more on our own language/views...if we know what we believe, we'd be more prepared to do battle beyond our conservative front doors.

Here are some samples from a week-long discussion of SSA/homosexuality at a conservative Christian university. To me, they do not have the ring of, at times, traditional conclusions or the traditional component of due warning.

"And I would not stand up here and say that they absolutely chose to be SSA or homosexual."

Q: “Is it ok to hang out with homosexuals or can you only witness to them?”

A: "I don’t think you can effectively witness to them if you’re not making some kind of connection. I don’t know how you’re defining “hang out,” but you have to balance it with Psalm 1, that talks about the man who’s blessed is not walking, standing or sitting with the ungodly. IF you are strategic and deliberate about treating other people as image bearers of God you’re going to find out about their common points of interest. You’re going to try to build redemptive relationships. This is a little redundant because I said it yesterday, but the reason for making that statement to build those bridges is that we have to cross those bridge. So you have to cross the bridge and build those relationships…"

Q: “If you have a friend, you want to help them that you may feel a sense that they’re attracted to you, and also is it unwise to counsel someone in a one-on-one setting?”

A: "I think that question probably relies on a little bit of misunderstanding or homosexual, of the average person who’s struggling with SSA, they’re not always looking a date, they’re not always looking for sex, they’re not always looking for that kind of thing. I think sometimes we’ve got to be careful, keep that in mind. They will want to talk in private, they will not want to talk in public. So they’re going to want to have a one-on-one conversation and that’s where their real heart, their real emotions will come out. So I think in general those one-on-one conversations are not something to be afraid of..."

(Due to length, I will list a couple of the other more significant ones in a separate comment.)

I know there are some FBFIers and Christian college parents that read this blog. I truly desire your opinion. Are these the approaches you would take with this topic when addressing college dormitory students and future leaders in the church ? I earnestly desire advice on this.

Do you see no problem on how this could affect campus dormitory life? Do you not see how that, without some clear guidelines in place of how far we allow a homosexual to "struggle" in the dorms, where this could lead to? Is there no concern in the language of this one (of several) Q & A (that was not distributed to parents) that should give cause for getting some clarification?

If you are closely connected or have influence, please take time to listen to the Gay Chapel Week sermons and ask to see all the Q & A's that were given to students last fall. Even if you end up thinking I am overreacting (even I think I am at times :), at least you will be informed.

Doulos said...

Continuing the above comment...

Q: "Is it possible for saved individuals to be homosexuals? Obviously, we would believe them to be living in sin and not in proper relationship with God, but if we think of homosexuality as a "life dominating sin," is it plausible to say that some homosexuals are saved and are sincerely wrong?"

A: "It's possible for a believer to commit any sin. If it weren't, the Bible wouldn't warn us to be constantly on guard. Paul's "sin lists" include more than 90 different sins, including homosexuality, and Paul warns his believing readers to resist all of them.

Further, the Bible makes it clear that all of us--save and lost alike--are born with sinful inclinations; in other words, "I was born that way" is not the same as "God made me that way." It's entirely possible that someone might be born with an inclination toward same-sex attraction, later be converted, and never succeed in changing his sexual orientation. All believers retain temptations to sins that troubled them before they were saved (Romans 7). I struggle with all sorts of temptations, and so do you. My temptations don't include homosexuality, but mine are just as bad, or worse (Romans 1:28-31). I'll fight them until the day I die. So the believer with an inclination toward same-sex attraction isn't suffering anything unique or even unusual, and all of us believers can--and should--help one another with our ongoing struggles with sin."

Q: "How do you deal with a roommate that is a homosexual or is struggling with same-sex attraction?"

A: "In responding to any situation or person, remember that the answer will never involve adding another sin to the picture. Therefore, you must not respond in pride or fear, which can lead you to ignore your roommate and/or his struggle, to expose his struggle to those who do not need to know, or to presume that he is physically attracted to you. Instead, you must respond to him with love. That will take the form of Philipians 2:1-4, where Paul commands you not to be self-focused but to humbly consider your roommate as more significant than you. When that is your mindset, you will lovingly confront, kindly offer assistance to get help, and cautiously avoid being a source for stumbling."

Doulos said...

Final samples...

Q: "Can someone who is a practicing homosexual be a Christian?"

A: "Because Scripture clearly teaches that homosexuality is a sin--declaring that those who practice homosexuality will not inherit the kingdom of God (I Corinthians 6:9)--those who persist in homosexuality have no assurance of eternal life (as is true of those who persist in other sins).

It is crucial to keep the distinction between assurance and eternal security. Perhaps as an oversimplification, "eternal security" concerns God's knowledge of an individual's eternal destiny whereas "assurance" concerns that individual's knowledge of his destiny. While the two are related, they are not identical.

For this reason, Scripture constantly calls professing Christians to examine their actions. James says that the kind of faith that is not accompanied by works is not true faith. I John says that your knowledge of whether or not you are "in him" depends on whether or not you "walk in the same way in which he walked" (I John 2:5-6).

Scripture would encourage any professing Christian currently engaging in sin to examine his walk, repent, and find restoration. Those who refuse to repent (of any sin) have no confidence (assurance) of their salvation and perhaps are displaying their true colors. As John says, "(Unrepentant sinner) went out, that (it might become clear) that they were not all of us" (I John 2:19).

So while someone practicing homosexuality may truly be saved, he can have no assurance of salvation while he persists in sin. Scripture commands him to repent and believe. Repentance and belief not only initiate a believer into a relationship with Christ but also dot the landscape of the Christian walk."

Q: "What is the best way to respond to an unbeliever you interact with on a daily basis who is homosexual (for example, a coworker)?"

A: "You should respond to him or her in the same way that you respond to any unbeliever. Build a redemptive relationship with him or her, recognizing that he or she is created in the image of God. It is most crucial that people see your love for God and your love for others. How would you respond to an alcoholic or a coworker who is openly living in adultery? You would build a redemptive relationship and share Christ's love, and when the opportunity arises, teach what God says about sin and the solution for sin, Jesus Christ. The power of God until salvation is the Gospel (Romans 1:16)."

Kent Brandenburg said...


You have a right to have a concern for what it is that you posted here in your comments. I would be concerned. At the same time, it doesn't surprise me, because I've watched role reversal there for awhile that would produce or accept the behavior in question. I think a major reason for what you posted is that there wasn't a stand against, because there was so much instruction on loyalty, that there was too much acceptance. Grads were taught loyalty and then behaved loyally more than almost any other place I've seen. There should be loyalty to scripture.

I don't write much on these issues of government, but it's nice for people to have a good argument and think correctly.

horace said...

Mr. Brandenburg,

Then is your opinion that a business owner may refuse service to a customer for any reason with a religious justification? So for example would a Kinist or somebody who believes in the "Curse of Ham" be able to refuse to serve a black customer? Or in reverse, would a member of the Nation of Islam be refused to serve a white customer?

As far as to my knowledge, there are no open homosexuals in my church and I doubt anyone openly practicing unrepentant sin would be allowed to be a church member. I'm not a member of Keller's church (considering I live in SoCal).

Kent Brandenburg said...


Thanks for your conversation and for answering my questions. Your question is very fine tuned, reaching to the worst case scenario, but I believe the Constitution is written to protect the worst case scenario. You are expecting me to argue for the worst case. Let me give you a couple others to shed light on this. What about a polygamist who is marrying his third wife and wants a cake for it? Or what about a Satanist who is having a party for his child sacrifice? Those two are illegalities and don't represent religious freedom and rightly so. Or the religion of the Charles Manson cult, which is partying in honor of a recent spate of murders? Yes, these things are subject to interpretation as it is. The Constitution doesn't protect everything.

The two examples you gave (Black Moslems think white man is devil) have a racial component that will lose in a court test. We know that. You know that. In the subject of interpretation, they are like the polygamist and the Manson cult and church of Satan.

When we talk about homosexuals, we are not in the extreme here, but in a 2-3000 year tradition that is being overturned. Everyone knows there are MANY for whom the flower arrangement or cake bake would be a problem.

But all of this is illustrating where the legislation of the 60s has left us, that is, it takes away the right of association or sovereignty to a private citizen or private property owner. I would argue that on a religious basis, that your two examples should be allowed, not sued. Their religious rights should be protected. This is the free market. They'll be punished by losing business. I think the same thing with speech. Certain speech should be protected that is worst case scenario, the heinous philosophy of the klansman is protected under the 1st amendment. That should not be legislated. Everyone loses freedom when the right of the klansman is taken away.

We need to decide whether we are going to protect religious practice. You seem to want that taken away, because you've written nothing that says you want to protect it. You just write in protection of the right to force someone to bake someone a cake or do a flower arrangement. This is what I see as fascist.

Kent Brandenburg said...


One more thing. Should a homosexual baker be forced to bake a cake that says, "Fags Should Die!" decorated on it? If he refuses, should the government be able to sue him?

Doulos said...

"...but I believe the Constitution is written to protect the worst case scenario." Thank you for furthering your thoughts. Not many fundamentalist preachers would go that far...oh, I forgot, you aren't a "fundamentalist" ;) Very good scenarios to consider in these times in America--and it's good to get our reasoning straight as the days darken in America.

KJB1611 said...

Dear Pastor Brandenburg,

"Fascist" is exactly the word to describe the government allowing one to retrain private property but constraining one's use of it. You are spot on. Forcing people to choose between their business and their God is indubitably fascist and indubitably tyrannical.

KJB1611 said...

The fact that Arizona's Republican governor vetoed religious liberty protections in this regard shows that the "culture war" has not only been lost, but it is becoming a rout.

Doulos said...

Per the discussion. Very disheartening.

Cal Thomas at: http://www.worldmag.com/2014/03/let_them_eat_cake

"The biblical thing to do for the Oregon cake business was to bake the cake for the gay couple. If businesses can refuse to serve such people based on the religious beliefs of its owners or employees, they wouldn’t be in business very long.

Then there’s the flip side. Should Muslim women be forced to go without their bodies and heads covered because an employer of another faith demands it? Should a Catholic priest be required to marry a divorced couple, if he abides by his church’s fundamental tenets? You see where this can lead? Virtually every decision about competing interests requires that one belief will be “discriminated against.”

How is not baking a cake FORCING your beliefs on someone? What about beliefs being FORCED on the baker? And why should he care if we'll be in business long? It's our business.

So much distortion of the concept of American history/religious freedom and Bible. Jesus was more tolerant than the baker by telling her to "go and sin no more"?

Is there any hope with this kind of conservative reasoning?

Kent Brandenburg said...

I feel you pain, doulos. I appreciate the outrage and the perspective.

Bobby said...


Yes, you should be concerned for the young people at BJU who are being influenced by Stephen Jones' compromise concerning abominable things. He should learn from Lot's failure.

Notice in Genesis 19:1-11 Lot’s fellowship with the men of Sodom (who were "sinners exceedingly before the LORD") was so close that “Lot sat in the gate of Sodom” (19:1) and called the men of Sodom “brethren” (19:7). Yet, when his compliance and toleration of their sin reached a limit, they were quick to turn on him (19:9). Lot had gone so far as to offer his daughters to the evil men of Sodom, but his toleration bought him no mercy when he finally rebuked the step of rape they wanted to take.

Mr. Jones will find that his compromise will buy him no mercy either when/if he ever rebukes sin and sinners like a true man of God would.

Doulos said...

Thanks for your take, Bobby. I have had glimmers of hope that the FBFI (conference at Faith this summer)would address or clarify concerns with this and other shifting taking place at BJU/and "BJUish churches". Now I wonder if that's even possible. The FBFI board as well as the mag contributions are very much BJU. It would take a very brave and confident person that would acknowledge any concerns as valid to broach topics in the "club".
I counted up on less than one hand those on the board that I am familiar enough with that would still give me hope that they might be a leader given their objectivity seen here and there. If nothing of specific substance is dealt with this summer (rather than vague glittering generalities)...

Kent Brandenburg said...


It would be interesting to see if the FBFI addresses it. It is a very eclectic group speaking, eclectic enough that I think you'll get your vague glittering generalities. I can't imagine that group would cross BJU either, seeing it is weighed heavily toward BJU.

Doulos said...

Per the discussion. Do not read if you hope to be encouraged.

Perhaps Love Bakes a Cake: