David Hamstra Responds to Aubyn Fulton on Religious Freedom Laws


(Spectrumbot) #1

I thank Spectrum for extending the opportunity to clarify my position with respect to Prof. Fulton’s response to my essay. A response to a response is a convention still found in some academic symposia but rendered largely irrelevant in this medium by comment sections. Nevertheless, I think it will be useful for readers if I highlight three ways Prof. Fulton either mischaracterized my thinking or misunderstood it due incompleteness on my part.

Legal Argument vs. Framework Argument

I am not an attorney and have not studied law, therefore I do not feel free to go beyond general comments on matters of law. I am a pastor, and my interest is in contributing to a framework my church can use to advocate in the public square for a just resolution to controversies that have bearing on religious liberty. I do not know the best way to implement that framework in law. Where Prof. Fulton represents me speaking to specific laws; I have been silent.

“Meaningful Involvement”

Prof. Foulton holds that I make the unfounded assumption that “everyone agrees that when a baker sells a cake to be consumed at a gay wedding it is a ‘meaningful involvement in gay weddings.’” To the contrary, I assume that not everyone would agree that to be the case. But religious freedom is founded on the assumption that as far as possible, we will protect conscientious decisions that do not accord with our own. It follows that someone who says they cannot be meaningfully involved in gay weddings for religious reasons ought to be allowed the opportunity to demonstrate how that involvement has meaning to them.

A draft board member might not see how being conscripted into the military in a non-combatant role would be meaningful involvement in killing for a pacifist, but the conscientious objector should have the chance to demonstrate how that is the case. An small business owner’s employee may not see why paying wages for work done by someone else on Sabbath hours is meaningful involvement in Sabbath breaking for their Adventist employer, but the employer should have the opportunity to demonstrate how that is the case. Freedom of religion only comes into play once a decision to opt out of meaningful involvement in that which one cannot in good conscience support is found to be bona fide.

Religious Liberty for Businesses vs. Business Owners

Finally, Prof. Fulton infers that I support the attribution of religious liberty to businesses, when in fact I am dismayed by that development. Throughout my essay, I refer to “small business owners” and not to the business itself, when writing about conscience claims.

On this point it seems Prof. Fulton and I might have common ground. In his response to a hypothetical posed in the comments he wrote: “As you point out, because of its small size (and perhaps other reasons) your lonely baker might have a legal right to discriminate, but this right would never be based on any first amendment right the business would have to practice religion, because that religion, no matter how small, has no religious rights.” This is precisely the kind of scenario I had in mind when writing my essay.

Born and raised in Minnesota, David Hamstra is the pastor of the Fort McMurray Seventh-day Adventist Church in Alberta, Canada.


This is a companion discussion topic for the original entry at http://spectrummagazine.org/node/6770

(SurprisedByGrace) #2

I admit to having posted this on another thread, but I felt it necessary to share the same on this one to get this discussion going with another piece of information lacking in most of these discussions.

I think a very important point about RFRA is being overlooked in this discussion. That is, RFRA’s were NOT designed to DICTATE a particular outcome in cases involving the infringement of a person’s religious expression when it collides with government compelling interests. There is language in some of the recent RFRA attempts that have sought to predict, or promote, a legal outcome. This is truly and extremely unfortunate and is NOT what RFRA’s are about.

I suggest that we all spend time looking at the much less known and talked about Utah Compromise in which both the people of faith have their conscience and practice protected, respected, as do the LGBT community having their rights also protected. The particular bills that brought this about (without a state RFRA I may add) may not, and is most likely, not a workable template for all states and jurisdictions, BUT there is enough general aspects of the compromise that can be used as a “pathway forward.”


(Tom Loop) #3

Tell me Pastor Hamstra what is going to happen if someone working for the chuirch decides to get married to someone of the same sex and the church refuses to grant spousal benefits to that employee"s same sex spouse or the church tries to fire that person for being in a marriage the church does not support??? A year ago i would have found myself on the side of the church opposing having to pay the benefits. Today I would be on the side with the employee.
Either way, I don’t see that the church has a legal leg to stand on to discriminate. The Catch 22 that I have been predicting is about to arrive and I don’t see any workable compromise on the horizon. Which side is the SDA church going to be on in this great civil war that James Dobson is predicting if the supreme court comes down on the side of same sex marriage as I expect?? I think the vote could go as high as 7-2.


(SurprisedByGrace) #4

Ministerial exemption is what will protect the church from those kinds of situations you describe. First, the church has a stance on human sexuality and it doesn’t include homosexuality as conforming to God’s will. If a worker was to marry one of the same sex that worker would be fired for not being in accord with church belief, and government will not intervene. It will not do so because of a long, long judicial and constitutional history of government not dictating church governance due to the separation of church and state, and thus refusing to get involved in setting church doctrine, etc., no settling hiring and firing practices.


(Tom Loop) #5

I’m not talking about minsters. Let’s say it is clerical worker at a conference office?


(SurprisedByGrace) #6

The term “ministerial exception” can be a bit confusing. It doesn’t apply just to ministers. It applies to all hires within a church. The church has the right to hire and fire on the basis of adherence (hire) or non adherence (fire) of church belief of its employees. As long as the duty is part of the mission of the church the employee that doesn’t abide by the doctrines or philosophy of the faith can be let go without recourse. Tabor-Hossana (US Supreme Court case) and a recent one in CA in the state courts (Serrano v Family, Life, Faith and Freedom) continue to build upon a strong case law this principle.


(Tom Loop) #7

So what about SDA hospitals where non members are hired, and let’s say someone in a same sex marriage who is not a member applies for spousal benefits like health insurance. Bottom line: the church is on a collision course over this issue that just has no clearly defined boundaries from past precidence except for the Bob Jones University case where that university lost it’s tax exempt status over inter racial marriage. It is moving in that direction over same sex marriage.


(SurprisedByGrace) #8

As to some auxiliary religious institutions, Tom, you do have a valid point.

Catholic hospitals don’t seem to be having this problem that I am aware of, and they have a larger share of health care institutions than we do. I am not sure about legal aspects of it. I do know that their clout did get some needed adjustments made in the ACA that was clashing with their mission (by law, hospitals have to receive government funding when it comes to services rendered by those on Medicaid and Medicare, so it can be a Catch-22).

Bob Jones was a receiver of government funding, thus the IRS clash over their discriminatory policies concerning race and mixed marriages. And that should signal warning flags down the line for our institutions that are depending heavily on government funding. Currently, as I understand, there is an unevenness about the legal landscape for predominantly sectarian auxiliary institutions as to this issue of reception of government funding and application of laws protecting discrimination. I know there are efforts to exempt auxiliary institutions whose mission is primarily driven by their religious nature, only utilizing generally offered government funds. But these are concerns that need to be addressed.

The allowance of gay marriages has made a sea change in law of which its future effects are still largely unknown.