Where Andrew Napolitano and apparently everyone else is going wrong is that the issue with the RFRA and Indiana and Arkansas is not a constitutional one [“Indiana’s new law: Constitutionally infirm”]. To ask whether the baker or photographer has the constitutional right under the First Amendment to refuse to participate in a gay wedding is to ask the wrong question. The question to ask is whether an American citizen has the right (much less the duty) to refuse to participate in immoral activity.
I can hear the catcalls: “Whose morality?” The answer is simple: “Morality as defined by American law.”
How is that? With the Philadelphia announcement of July 1776, the 13 colonies had a problem. Since they were now free and independent states, no longer English colonies, they were no longer under English law. So they had to decide by what law they were to govern themselves. And within a few months each and every one of the 13 colonies enacted legislation determining that their law was the common law of England! (This fact highlights the inherently conservative nature of the revolution and the fact that the revolution was not a rebellion, because the English – not the colonies – were the rebels. But all that is another story.)
The common law of England at the time was fully described by Blackstone, who was accepted as the authority and read extensively by all the colonial lawyers, and Blackstone made crystal clear that “Christianity is part of the common law,” which phrase is echoed by hundreds of English and American appellate decisions. You’ll find the same in Kent’s Commentaries on American Law and in Joseph Story’s Constitution. And lest that phrase be misunderstood, Thomas Cooley, in “Cooley’s Blackstone,” explains that Blackstone’s phrase “Christianity is part of the common law” does not refer to Christian theology – not to “father, son, and holy ghost” – but solely to Christian morality – that is, biblical morality! Hence biblical morality is part of the common law adopted by all 13 of the American colonies.
And today? Every one of the 50 states (excepting perhaps Louisiana) has a statute specifying that its rules of decision in its courts is the common law of England.
Hence biblical morality is the law today in every state.
You can see this principle played out in my state of Washington in Gaylord v. Tacoma School District, 88 Wash 2d 286, 559 P2d 1340 (1977) en banc, in which the Washing Supreme Court upheld the firing of a teacher because he was a homosexual because homosexuality is immoral – even though there was no allegation of any homosexual conduct at school or in any way connected with his teaching.