On Religious
Liberty and Discrimination
It’s a hot topic in the news
these days. What is the relationship between freedom of religion and
discrimination in the provision of public accommodations, including business
services to the public, employment, and housing? More specifically, do new
so-called religious liberty statutes signed into law in Indiana and passed by
the legislature in Arkansas give legal protection to discrimination against
people on the basis of sexual orientation and gender identity? To understand
these important questions we must begin with an understanding of the nature of
civil rights law and then move to consideration of the specific questions
before us. Perhaps I can offer a useful perspective on these questions; for I
am a Christian pastor, and I have a law degree and worked for more than twenty
years as a practicing attorney. So here goes.
The basic legal principle with
which we must start is that any business is free to refuse services to any
person for any reason unless refusal of services on specified bases is
prohibited by an applicable law. Let’s take racial discrimination as a case
that shows the issues in a particularly bright light. Historically, before the
passage of local, state and federal civil rights laws, businesses across our
nation were legally free to deny services to Black people simply because of the
race of those individuals. No law prohibited such discrimination, so such
discrimination was legal and was of course widely practiced across our land.
That’s why civil rights legislation was necessary. Beginning in the 1960s both
the federal government and many state and local governments enacted civil
rights laws that prohibited racial discrimination in the provision of public
accommodations and services, in housing, and in employment. Denial of services
on the basis of race then became legally prohibited in those businesses to
which the statutes applied. They didn’t apply to all businesses. The federal
law applies only to businesses involved in interstate commerce, although as a
practical matter that’s almost all businesses today. State statutes on
employment discrimination generally specify the size of business to which they
apply, exempting very small businesses. Religious organizations are exempted
from both the federal and the state laws. Still, as a legal matter these laws
made illegal what previously had been legal, namely the denial of services to
persons on the basis of race.
In the way these statutes exempt
religious organizations we see how two fundamental American values can come
into conflict. Civil rights laws express the American value of equal treatment
and equal protection of the law. The exemption of religious organizations
expresses the American value of freedom of religion, both the right of
individuals to practice their religion and the prohibition of the government
interfering in the operation of churches and other institutions operated by
churches. I would of course never do it, but I am legally free to deny
employment at the church I serve to any person based on that person’s race.
That’s because, while the law values nondiscrimination, it also values my
freedom as a pastor and my church’s freedom as a church to express our
religious values in the operation of our faith institution, pretty much
whatever those religious values may be.
The matter is different if I
step out of my role as pastor and outside of my church and operate in any
secular field. Here’s a personal example. Setting aside for the moment the
issue of business size, back when I had my own law office I was not free to
refuse to hire a qualified Black person as office staff just because of that
person’s race. I was still a person of faith. I still had my personal religious
beliefs. Outside of the realm of the church, however, the law doesn’t care
about my faith or my religious beliefs. The civil rights laws say go ahead and
believe anything you want. We can’t control what you believe, and we don’t care
what you believe. We can, however, control what you do. We can create a civil
cause of action against you for damages if you practice racial discrimination
in your hiring practices. The law says believe whatever you want, but you may
not practice racial discrimination. You may believe, as many Christians used
to, that all Black people carry the curse of Ham. That’s none of the law’s
business. Your acting on that belief, however, is the law’s business, and the law says you can’t do it.
Let’s turn now to the issue of
discrimination against gay, lesbian, bisexual, and transgender persons.
Tragically, a great many Christians still believe that these people are
inherently immoral. Conservative Christians were wrong about race, and they’re
wrong about sexual orientation and gender identity, but those untenable beliefs
still exist among a great many Christians and members of other faith
traditions. In theory the legal situation with regard to LGBT civil rights is
the same as it is for racial minorities. Discrimination against them in public
accommodations, housing, and employment is perfectly legal unless there is an
applicable law that prohibits it. So is discrimination against straight people
for that matter, although no one seems ever to mention that one. In recent
times some states and many local municipalities have added sexual orientation
and gender identity to their civil rights statutes or ordinances. In my own
state of Washington the city of Seattle has had a civil rights ordinance on
orientation and identity for many years. The state of Washington added
orientation and identity to its nondiscrimination law more recently, but we
have done so. The federal government has not done so. There is no federal
statute that prohibits discrimination against LGBT people the way the Civil
Rights Act of 1964 prohibits it on the basis of race and certain other human
characteristics.
In recent times the question of
discrimination against gay and lesbian people has evolved into the question of
marriage equality. Through most of our country’s history it was simply assumed
that marriage meant a marriage between a man and a woman. Gay and lesbian
people, however, have a natural affectional and sexual orientation not toward members
of the opposite gender but toward members of their own gender. Gay and lesbian
couples have long created faithful covenanted relationship that mirror
traditional marriage in every way except for the gender identity of the persons
in the relationship, but those couples could not legally marry and were
therefore denied the legal advantages (and burdens) of legal marriage. In the
past few years that legal status of LGBT folks has begun to change at a
remarkable rate. Some states, including my own state of Washington, have
removed gender discrimination from their marriage laws either by act of the
state legislature or by popular vote. In more states the courts (usually
federal but sometimes state courts as well) have declared bans on same gender
marriage to be unconstitutional as violating citizens’ rights of equal
protection and due process. The United States Supreme Court voided part of the
outrageously misnamed Defense of Marriage Act on those grounds. Gay and lesbian
people are getting married. Thanks be to God!
As could entirely be expected, many
conservative Christians are outraged by the growing legal equality of LGBT
people, especially with regard to marriage. Some businesses that provided
services for weddings have refused to supply those services for same gender
weddings. Bakeries have refused to sell same gender couples wedding cakes.
Florists have refused to provide flowers for a same gender wedding. Photographers
have refused to take pictures at those weddings. The people acting in this
discriminatory way often claim that they are merely exercising their freedom of
religion. They say their faith condemns all same gender sexual activity, so
they will not participate in any act in any way related to same gender sexual
activity, as of course same gender marriage usually is. Courts in some states
that have sexual identity included in their nondiscrimination laws have said
these businesses may not refuse services on those grounds. The people who don’t
want to provide those services say their religious freedom is violated by such
court orders.
So we are presented with a
conflict between two American values, equal treatment on the one hand and
religious liberty on the other. Some states have passed legislation that
somehow claims to protect religious liberty in the cases where a person’s
claimed religious beliefs lead them to deny services they otherwise would
supply. The federal government has passed such a law as well. Those laws have
been relatively uncontroversial and without significant legal effect until
recently. In recent days the legislature of the state of Indiana has passed,
and Indiana Governor Pence has signed, a law that, among other things, gives a
business sued for discrimination a legal defense of freedom of religion. The
legislature of the state of Arkansas recently passed an essentially identical
law, although Governor Hutchinson of that state has so far refused to sign it. Although
neither Indiana nor Arkansas includes sexual orientation or gender identity in
their civil rights laws some municipalities in those states do, and voiding
legal liability under those local laws seems to be the purpose of the new state
religious liberty laws.
Governor Pence of Indiana and
the advocates of such laws across the country say that the purpose of the laws
is to protect citizens’ freedom of religion and is not to authorize
discrimination. The claims that the intent of the law is not to authorize
discrimination are in the first place irrelevant. The legal question is not the
intent of the law, it is the effect of the law. A statute need not intend to be
discriminatory in order to be found to be discriminatory. Conservatives want to
change the law in this regard, but it is still well established that a law can
be voided as violating a civil rights statute or the Constitution if it has
what the law calls a “disparate impact” on a protected class of people. That
means that the law has a negative impact on people because of a human
characteristic such as race that is protected by law. The so-called religious liberty
laws that are the subject of so much news today clearly will have a disparate
impact of this sort on sexual and gender minorities. Beyond that, the claims
that the laws do not intend to authorize discrimination are either unbelievably
naïve or, more likely, totally disingenuous. The most significant part of the
law in Indiana, and the one that is provoking such a strong reaction by
advocates of equality, clearly allows a business owner to avoid liability for
discrimination under state or local law by saying that the discrimination was
grounded in the business owner’s religious beliefs.
I find it disturbing that those
claims receive such a favorable hearing from so many politicians. Why I find that
reality disturbing becomes apparent when we analogize these new laws to civil
rights laws based on race. The federal, state, and local laws that prohibit
discrimination on the basis of race do not attempt to control anyone’s beliefs
about different races of people. They say in effect go ahead and dislike Black
people as much as you want. The law doesn’t care. The law says however that
whatever your beliefs are, there are limits to the extent to which you may act
on those beliefs. The law cares about actions not thoughts. The distinction
between beliefs and actions in US law goes back at least as far as the US
Supreme Court case of Reynolds v. US,
decided in 1878. That decision upheld laws against polygamy against claims by
Mormons that their religion authorized that practice. The law doesn’t care what
Mormons or anyone else thinks about polygamy. It says however that the state
may regulate marriage and may say that only monogamous marriage is allowed.
Similarly, civil rights law says we don’t care what you think about Black
people, gay people, or any other people covered by the law. We do care what you
do. You can think what you want, but you may not discriminate.
People are of course free to think
whatever they want about LGBT people. Dislike them as much as you want, as
prejudicial and unwarranted as your thoughts may be. The law doesn’t care. Some
states and cities, however, have laws that say you may not discriminate against
them in the provision of public services, housing, employment, etc. Your
religious beliefs are yours, and the government has no right to control them nor
any interest in controlling them. The government does however have the right to
control and an interest in controlling your actions. That, after all, is what
law does. It controls, or at least seeks to control, people’s actions. The
clear purpose of the religious liberty laws before us today is to authorize
discriminatory actions that might otherwise be legally prohibited. No new law
is necessary in this country to give people freedom of religious belief. Thanks
be to God! Law is however necessary in this country to prohibit discriminatory
actions that violate other deeply held American values, especially the values
of equality and equal treatment. The current religious liberty laws have the
clear intent of allowing behavior that violates those values in the name of
religious freedom. They are legally unsound, for they ignore the distinction
between belief and action that is at the heart of the American legal system. I
believe them to be religiously unsound too, but that is not a legal
consideration. These laws must be repealed or struck down precisely because
they are bad law. They are bad policy because they hurt LGBT people, and they
are bad law because they transgress long-established legal principles. May they
quickly disappear from our public life.
