Pardon Would Halt Persecution

September 18, 1996 • Commentary

America used to be a place where people could live their lives according to the dictates of their own consciences–as long as they respected the equal rights of others to do the same. Unfortunately, political correctness now dominates the American scene. Recently, for example, the California Supreme Court ruled that the state Housing Commission could coerce Evelyn Smith, a devout Presbyterian, into leasing her two rental duplexes to unmarried couples. To add insult to injury, the court fined Smith $454 for having the temerity to operate her small business according to the tenets of her own religious faith. This outrageous blow to religious freedom–indeed, freedom generally–should not be allowed to stand.

Smith is an unassuming widow looking for simple justice. As a Presbyterian churchgoer, she believes that sex outside of marriage is sinful. And as a small businesswoman, she believes she has more than a little to say about what goes on under her roof. Given those beliefs, it is hardly surprising that Smith should not want to rent to unmarried couples. What an astonishing revelation it must have been for her to learn not simply that she was an unhip Californian–she knew that–but a lawbreaker under the state’s Code of Regulations.

In addition to ordering Smith to swallow her religious convictions and allow cohabitation in her duplexes, the Housing Commission also imposed an affirmative obligation upon her to inform prospective tenants about (a) her run‐​in with the commission; (b) how her claim of religious liberty was rejected; and (c) how she now pays homage to the government’s policy of “equal housing opportunity.” One can almost see the smug bureaucratic smiles as the court upheld this bizarre form of secular contrition. But something is badly wrong when the highest court in the state can issue such a flagrantly unconstitutional order. Leaving aside the court’s narrow conception of religious liberty (and property rights), whatever happened to the idea of free speech? It is one thing to order a person to open her doors to unmarried couples, but forcing Smith to give a mini‐​speech about her so‐​called rehabilitation smacks of thought control.

Some people will undoubtedly subscribe to the view that if Smith does not like the law, she should stop feeling sorry for herself and get involved in the democratic process. There are at least two responses to that argument. First, the Framers of the Constitution crafted a Bill of Rights so that individuals and minorities could seek refuge in the courts. Smith pressed her constitutional argument that the government had overstepped it bounds with its anti‐​discrimination law, and she lost.

Second, it is interesting to observe what happens when religious Americans (especially on the right) begin the process of political organization. They are invariably denounced as being “extreme” and “intolerant.” The constitutional separation of church and state is repeatedly invoked with the expectation that religious activists will beat a retreat back into their churches and synagogues. The religious community is thus fenced in by its critics. If religious activists retreat from the public square, they’re whining crybabies who do not understand the give‐​and‐​take of the democratic process. But if they stay active in the public square and exert pressure on lawmakers, then they’re zealots who are out to impose their values on the entire community.

This is not to say that Jefferson’s “wall of separation” between church and state is unimportant, or that the arguments of religious activists should not be severely scrutinized. If Smith were attempting to “Christianize” rental policies across the state, rival landlords would certainly have a legitimate grievance about their liberty being trampled upon, but this case is so far from the situation of a meddling “Church Lady” as to be its very opposite. Indeed, this is the classic case of a person minding her own business.

Now there is, to be sure, much confusion these days about the proper role of government in a free society. Our politicians say many things, but they rarely articulate a position on how to resolve the conflict between individual liberty and majority rule. The position of the Housing Commission, however, is painfully clear: The government can do just about anything it wants. If government can prohibit racial discrimination in housing, the argument runs, it can set a state‐​wide policy on everything from pets to parking privileges.

Here’s another view. In America, free men and women should be able to do just about anything they want, provided they respect the equal rights of others to life, liberty, and the pursuit of happiness. The government’s job is to secure those rights, not violate them.

Governor Pete Wilson should overrule his Commission in this case and reverse the rising tide of political correctness in America. Will he?

About the Author
Tim Lynch
Adjunct Scholar and Former Director, Project on Criminal Justice