‘The End of Religious Liberty in the Land of Lincoln’


That is the title of a column at RealClearReligion about the passage of a law recognizing same-sex marriage in Illinois. It’s written by Robert Gilligan, executive director of the Catholic Conference of Illinois. And it makes the familiar complaint that anti-discrimination laws violate religious freedom — but only when they disapprove of the target of that discrimination.

During floor debate, lawmakers threw out words such as “equality” and “fairness.” But one important term was glossed over — religious freedom.

It’s in the title of the bill, lawmakers said, the “Religious Freedom and Marriage Fairness Act.” They further noted that no church or clergy will be forced to solemnize any same-sex marriage or rent their parish or fellowship halls for any type of same-sex wedding recognition.

It’s all good, lawmakers assured faith groups and religious organizations. Your religious freedom is secure…

Senate Bill 10 offers no specific protection regarding employment practices. If a current church employee chooses to “marry” a same-sex partner, the legislation offers no specific protection regarding the church being forced to pay — from funds collected every Sunday from faithful church-goers in the pews — for benefits for the “spouse.”

Actually, that is already covered by the ministerial exception and both federal and state law. Churches are exempted from all anti-discrimination laws. But that isn’t what this is about. Churches are already exempt. What Gilligan wants, what the Christian right has been demanding all over the country and not just in relation to same-sex marriage, is that all religious individuals and businesses owned by them be exempted from the anti-discrimination laws — but only when it applies to gay people, as we will see shortly.

The legislation offers no conscience protections to health-care facilities, educational facilities, or social service agencies. So, faith-based hospitals, colleges, and universities that own and operate venues for rent are not protected.

Individuals and independent business owners whose religious beliefs do not condone same-sex marriage are also left in the dust. There are the stories about the photographers, bakers, florists, and bed-and-breakfast owners who have come under fire for refusing to serve same-sex weddings.

This is absolutely true, though it should be noted that this was already true in Illinois. It has been illegal to discriminate in housing, employment and public accommodation against on the basis of sexual orientation in Illinois since 2005. A for-profit business already cannot refuse to host a gay wedding party even if that marriage was not legally recognized by the state. It isn’t the recognition of gay marriage that is the problem here, it’s anti-discrimination law in general (which is a very important point that I will return to in a moment).

What about the county judge asked to perform a same-sex wedding, or a public school teacher forced to teach about a family with two moms, two dads, or some other permutation?

What about them? A judge can no more refuse to perform a same-sex wedding than they could refuse to perform an interracial or inter-religious wedding. And a public school teacher has to teach the curriculum whether it agrees with their religious beliefs or not. A teacher cannot legally decide that they won’t teach evolution or heliocentricity because it conflicts with their religious beliefs. And the recognition of same-sex marriages does nothing to change that.

A couple weeks ago a group of five eminent constitutional law scholars released an open letter on this subject, explaining why such a broad religious exemption should not be granted. They make this very important point:

These examples, invoked by the proponents of the “marriage conscience protection,” do not illustrate a unique threat posed by marriage. Instead, they underscore the fact that antidiscrimination law has, for many years, addressed conflicts that arise between same-sex couples and religious objectors, regardless of whether same-sex couples can get married.

Here is the bottom line: Tens of thousands of same-sex couples have been married, civilly unionized, or domestically partnered over the past decade. They have had ceremonies, selected caterers, rented halls, ordered flowers and invitations, been fitted for dresses and tuxedos, chosen professional photographers, hired clergy and non-clergy alike to officiate, obtained licenses from state bureaus, rented apartments together, adopted children, enrolled their kids in public and private schools, sought employment to support their families, claimed health benefits for their spouses,
trudged through relationship counseling, and done all the other things married people do.

The opportunity has certainly been there for massive legal conflict, which the religious liberty scholars have been predicting for years now.16 Yet the legal conflicts between same-sex couples and religious objectors—all under pre-existing antidiscrimination laws—have been very few. More broadly, we can find no case in which the state’s formal legal recognition of the same-sex couple determined the outcome, no case in which the existence of a same-sex marriage defeated an otherwise meritorious religious-freedom claim, and no case in which the absence of a samesex marriage relieved the religious objector of a nondiscrimination obligation.

But here’s an equally important point, one that I have been making for many years. When it comes to the demand for religious exemptions from anti-discrimination laws, there is nothing unique about sexual orientation. Religious belief can and has been to justify discrimination on all of the other forbidden bases for discrimination as well. The argument being made applies just as logically to laws that prevent discrimination on the basis of race, religion or gender.

If it violates one’s religious liberty to be prevented from refusing to hire a gay person, why does it not violate one’s religious liberty to be forced to hire a woman, a black person, an atheist or a Muslim (or for that matter, a Christian)? Lots and lots of fundamentalist Christians, Muslims and Jews believe that women should not work but should stay in the home. Can a business owner refuse to hire a woman on the basis of that religious belief? The answer is obviously no. The same is true of race and religion.

If we are to take seriously the argument that laws banning LGBT discrimination are a violation of religious liberty, if it is true at all, then it is equally true of all anti-discrimination laws and we must now turn back the clock to 1963 and do away with the Civil Rights Act. But almost none of the people making the noise about the terrible tyranny being imposed on Christians by same-sex marriage and the Employment Non-Discrimination Act are following their argument to its obvious and logical conclusion (only the most dogmatic of libertarians do so).

There is no reason why we should carve out an exemption just for discrimination against gay people. If it is a violation of religious liberty to forbid discrimination, then it a violation in all cases. Or it’s a violation in none. The fact is, this country opted most than two generations ago to forbid such discrimination and the overwhelming majority of Americans support that. Even a majority of Republicans don’t think you should be allowed to fire or refuse to hire a gay person. We grant exemptions to churches in order to prevent the government from meddling in church affairs and doctrines, as we should, but if you run a business that is open to the public then it must be open to the public and you cannot discriminate in your hiring. And that is as it should be.

Comments

  1. Michael Heath says

    I think the bigoted churches are worried that at some point, they’ll begin to lose their tax breaks if they continue to discriminate against gays and their families. They’re getting protections now as a concession in the movement to legalize gay marriage. But as society increasingly marginalizes conservative religionists’ institutionalized bigotry, there’ll be fewer people to support our subsidizing bigoted organizations.

    From my perspective those tax breaks should have never been granted.

  2. garnetstar says

    First of all, I think that if you find yourself in a “faith-based” hospital of any kind, even if they don’t practice religious discrimination, you should get the hell out of there. Even if you have to crawl.

    I can hardly think of a worse place to operate (ha ha) by religious principles. Same as if a surgeon offered to pray with me before a procedure–I’d get up off the table and run out naked and screaming.

    But, if a church or religious person owns a business, including a hospital, that it operates for profit, and they don’t like the laws that all other businesses have to comply with, they can sell the business. What they’re pouting for is their right to make money while having an unfair advantage over other businesses. I don’t see how this particular advantage, to not serve the people of their choice, would profit them, but that’s the principle they’re arguing for. They say the have the right to make a profit while not in compliance with law.

  3. khms says

    We grant exemptions to churches in order to prevent the government from meddling in church affairs and doctrines,

    thereby forcing a stand on what is and is not a religion, and so doing the very thing we are supposedly trying to avoid (and opening more avenues for gaming the system).

    as we should,

    Should we? I’m unconvinced.

    I think if we really wanted the government to be perfectly neutral towards religions, the way to do that is to completely eliminate the concept from law. If a law is fine for a non-religious organization, then it is fine for a religious organization, too. (And in fact, the argument from the religious right is actually saying that, too, except they don’t want to eliminate the exceptions but the rules. Same end result, though.)

    (In the case of anti-discrimination rules, you’d replace religion with a slightly expanded rule, such as using “belief” instead of “religion”, or something similar. And I’d have no fundamental problem with having an exception in cases where you can show the belief in question is directly relevant to the job, to not, say, force a Christian church to hire a Muslim pastor – same as not forcing a movie studio to hire a woman for the role of Hamlet, or a department of biology to hire an evolution denier as a teacher. No exception when either of the three is hiring, say, janitors.)

  4. says

    They so desperately want to forget how many churches, a mere five decades ago, preached against miscegenation. Some still do, of course.

  5. Cal says

    Since when does providing a good or service in exchange for money indicate anything other than providing a good or service for money? Saying that every good or service provided by a business represents some kind of tacit approval is a ridiculous standard to maintain. And why is it only gay weddings that so offend their sensibilities?

    One of the stories I read regarded a florist refusing to do flowers for a gay wedding. They florist admitted they were happy to serve their gay customers, but a gay wedding was unacceptable. I am sure this florist provided flowers for this many men’s boyfriend so clearly they support gay dating by their own rationale; but they were unable to support the wedding of the two men… sigh

  6. cptdoom says

    Ed brings up the most important issue with these “religious liberty” demands. The same groups demanding the right not to be reminded same-sex marriages exist now would howl the loudest and longest were someone enfringing on their own rights. Much of the anti-gay rhetoric in Hawaii in the last week, for example, came out of the LDS “church.” That “church,” of course, is rejected as invalid by every single mainstream Christian religious organization. Should good Christians also be forced to provide services for a Mormon “marriage” ceremony?

  7. jeevmon says

    I don’t think it’s just the laws preventing discrimination on the basis of sexual orientation that they want a pass on. The position being taken here is very much akin to the position Hobby Lobby and others are taking on the contraception mandate. They want an exemption from that mandate on the grounds that their religion requires them to prevent their employees from spending their earned benefits on things that offend the employer’s religious beliefs.

    I’m sure they’d fight just as hard for the right of a Christian Science employer to deny coverage for blood transfusions. Or for the right of a Muslim employer to pay his/her employees in a special scrip (“Sharia bucks”?) that cannot be used to purchase pork or alcohol. Right?

    Just as I am sure that Justice Scalia is already working on an opinion that distinguishes Hobby Lobby from the peyote decision Scalia himself authored. Probably on the grounds that there is no religious exemption from generally applicable laws when it comes to religions like Native American spirituality that Scalia does not believe in, but that there is one for Catholicism, which Scalia does believe in.

  8. says

    @ garnetstar

    First of all, I think that if you find yourself in a “faith-based” hospital of any kind, even if they don’t practice religious discrimination, you should get the hell out of there. Even if you have to crawl.

    Given the rate that Catholic organizations are buying up hospitals, good luck with that one. Unless you’re living in an area with a major secular university hospital, odds are you’re going to be seen by a “faith-based” hospital.

  9. Sastra says

    The real fear is that if the law changes, they’ll lose the culture. In their imaginations they see non-believers and those outside their church saying to themselves “Boy, those Christians are really morally strict.” But if the law shifts the culture to thinking they’re bigots, they’re toast.

  10. says

    In Chicago, discrimination on the basis of sexual orientation had already been outlawed and churches may not discriminate on the basis of sexual orientation for jobs that are non-ministerial and non-educational. So sexual orientation is protected among workers performing ordinary non-religious functions, of which there are many in organizations like the Catholic Church. Since civil unions were already recognized in the state, it has also meant that partner benefits in insurance had to be made available on an equal footing for all. Churches have handled this by allowing employees to select one other person for benefits solely on the basis of shared “permanent” residence. Permanent is meant to include anyone of any gender or relationship to the insured who is so designated as an intended permanent relationship of any kind in a shared residence.

    So Mr. Gilligan’s panic has already been faced and dealt with, long before the passage of the bill.

  11. says

    Adding to that, if the R.C. Archdiocese of Chicago has figured out a way to legally and humanely deal with this, as have other Chicago churches, I’m sure Tony’s muffler shop in Someplace, Illinois can handle it.

  12. says

    If we are to take seriously the argument that laws banning LGBT discrimination are a violation of religious liberty, if it is true at all, then it is equally true of all anti-discrimination laws and we must now turn back the clock to 1963 and do away with the Civil Rights Act.

    That is the goal, after all.

  13. jnorris says

    On the one hand you have everything Ed wrote. On the other hand you have the mountain of dead or wounded True Christians ™ hurt because gay people can love and marry each other somewhere in the USA.

  14. Ichthyic says

    We grant exemptions to churches in order to prevent the government from meddling in church affairs and doctrines, as we should

    actually, the government has ALREADY established precedence for having a vested interest in how churches conduct themselves, and with very good reason, though for the last however many decades, they seem to conveniently ignore them most times.

    there are rules pertaining to having 501c3 status, you know.

    everyone should familiarize themselves with them; they aren’t onerous to read.

    when you do, you will find that EVERY SINGLE CHURCH that has used it’s position to poltick has violated their 501c3 status.

    it used to be the case the IRS would pursue this violation diligently, but between budget cuts, a TON of Mormons (yes, you heard right) deciding to deliberately hire themselves into the relevant bodies of the IRS, the number of cases that get prosecuted has plummeted to near zero. Still happens, but only rarely, and only as a face-saving measure.

    I say it’s time the citizens of the US told the churches once and for all to make a damn decision:

    will they be public, tax exempt institutions that are subject to federal law… or will they be private, NOT TAX EXEMPT groups that pay taxes like any other private function, but can discriminate as they please.

    CHOOSE.

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