F o r my last column, I wanted to describe why the laws being introduced around the country allowing discrimination on religious grounds were wrong. While writing though, I found myself struggling to come to terms with exactly why I thought that. I was unable to resolve my inner conflict between my desire to protect religious liberty and freedom of conscience and my desire to see discrimination of all kinds relegated to the dustbin of history.
I managed to narrow my focus to the question on religious freedom justifying discrimination, but the wider question of how we balance conflicting rights and desires still weighs heavily on me. So, I want to share with you some of my reservations through a series of thoughts I have wrestled with this week.
The historical parallels between legalized segregation and anti-gay discrimination are tenuous, but the similarities between the arguments supporting both cannot be ignored. Theodore Bilbo, two-time governor of Mississippi and proud member of the KKK, regarded racism as more than an opinion or ideology. For Bilbo, it was a religious duty. He called racial purity a “gift from God” and said that interracial marriage was a direct attack on “the Divine plan of God” and against divinely ordained natural law. Sound familiar?
Racial discrimination is just one example. The United States Supreme Court ruled in U.S. v. Lee that religious objections to the employer social security mandate should not be upheld:
“When followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed ... on others in that activity.”
Clearly we have decided as a society that, in principle, the government has a compelling interest in disallowing certain religious observances when they counteract the public good. But is that the same as compelling service in all instances?
If a church opposing gay marriage offers its fellowship hall for public rent, should they be allowed to turn away a gay wedding reception? What about a church opposing interracial marriage? Could a gay rights supporter turn away Westboro Baptist Church members from their restaurant?
Places of public accommodation are subject to special requirements, but there is a significant difference between a legitimate business interest and arbitrary discrimination. As such, businesses are prohibited from arbitrarily discriminating on the basis of race, religion, gender, nationality or disability. I think sexual orientation should be included in this list, but for the moment it isn’t.
For example, Arizona law permits employment discrimination based on sexual orientation, as do laws in 28 other states in the United States. The Arizona law that received so much attention in recent weeks would not have legalized discrimination because discrimination was already legal.
So why add this new law? Proponents pointed to Elane Photography v. Willock as inspiration.
The case arose after a New Mexico wedding photographer refused to photograph a gay commitment ceremony for religious reasons. The New Mexico Supreme Court disagreed, laying out several very compelling arguments:
1. Compliance with public accommodation laws does not restrict First Amendment rights. For example, they could “post a disclaimer on their website ... advertising that they oppose same-sex marriage but that they comply with applicable antidiscrimination laws.”
2. The free exercise clause requires evenhanded application of neutral laws, not affirmative accommodation of religious beliefs.
3. New Mexico’s laws do consider discrimination on basis of sexual orientation unlawful, so the decision to refuse service was arbitrary.
I think these principles should guide our thinking in this period of transition from inequity to equality, and I encourage everyone to read the full opinion.
However, a sentiment expressed by Justice Richard Bosson in his concurring opinion should not be ignored:
“[The arguments offered by the court], I assume [are] little comfort to the Huguenins, who now are compelled by law to compromise the very religious beliefs that inspire their lives. Though the rule of law requires it, the result is sobering.”
People who harbor objections to the increasing acceptance of gay rights merit our sympathy, even when it may be difficult to grant, but they do not deserve our leniency in the marketplace of ideas or in the courts.
COLLIN BOOTS is a master’s student studying robotics from Redwood Falls, Minn. Email him at email@example.com or follow him @LotOfTinyRobots.
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