On Religious Freedom and Discrimination

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.