A New Vow: Gay Rights and Religious Freedom

Is common ground possible?

The question posed at the Newseum on Wednesday, May 28, took the brunt of the gay rights movement head-on as the Religious Freedom Center of the Newseum Institute and Moment Magazine co-sponsored a panel discussion titled, “Gay Rights and Religious Freedom: Is Common Ground Possible?”

The question seems to many at first to have a quick, obvious answer. Many Christians and many proponents of same-sex marriage might both quickly respond, “No!” Many in both of those groups might offer a resounding “Yes!” The Newseum Institute’s answer? “Let’s see.”

The panel included four articulate members from very diverse backgrounds: Dr. Jay Michaelson is a fellow at Political Research Associates and a bestselling author; Jonathan Rauch is a senior fellow at The Brookings Institution in Washington, DC; Marc Stern serves as general counsel for the American Jewish Committee; and Robin Fretwell Wilson is the Roger and Stephany Joslin Professor of Law and Director of the Family Law and Policy Program at the University of Illinois. The moderator and director of the Religious Freedom Center of the Newseum Institute, Dr. Charles C. Haynes, called these four people “the best panel we could possibly have.”

Ann Lewis, vice chair of the Moment Magazine advisory board, introduced the panel and included a series of comments comparing the gay rights movement to the Civil Rights movement. She deemed the event appropriate to be taking place during the fiftieth anniversary celebrations of the landmark Civil Rights Act of 1964, and predicted, “Fifty years from now, as our nation looks back on the progress we will have made on gay rights, and children wonder, ‘What was all that about? Why did they think people were different?’ I think discussions like the one we are going to have tonight will be one of the highlights of that year.”

In his introductory remarks, Haynes said, “Not surprisingly, emotions are running hot…what some see as necessary protection for religious conscience, others decry as bigotry and discrimination.” Professor Fretwell Wilson then framed the debate in light of the legislative situation in Arizona.

While much of Professor Fretwell Wilson’s initial commentary focused on contextual facts, she also offered a chart comparing tiers of protection of various institutions under the religious freedom clause in the First Amendment. While protection and exemption obviously serves churches and people of faith in their places of worship, it has also extended to other areas by legislation or judiciary action, such as church counseling services, married student housing, and religiously-affiliated non-profits, among others. Legislation had not yet reached small businesses in the commercial sphere, and part of Fretwell Wilson’s current legislative works recommends changes to grant exemption on the basis of religion to wedding industry professionals and “Mom & Pop businesses” (defined as small businesses with five or fewer employees). She does not recommend extending exemption to larger commercial businesses (e.g. Hobby Lobby), nor does she see such an extension as constitutional. Fretwell Wilson wrapped up her initial discourse by saying, “Some argue that religious liberty is in tension with gay rights. But in every enacting jurisdiction to date religious liberty protections have served as a pathway to marriage equality, not as a roadblock to it.”

Marc Stern then introduced a recent history of religious freedom court decisions surrounding the penning of the Religious Freedom Restoration Act (RFRA). Haynes argued the national RFRA has fallen apart, but the tension now arises in the RFRAs being proposed in various states. Stern later offered a provocative question: “It has become the conversation-stopper when you say, ‘That’s discrimination.’ Well, yeah, it’s discrimination. But the question is, ‘Is discrimination always inevitably so bad that we’re not even going to consider, as against it, other rights?’”

Jonathan Rauch and Jay Michaelson both reminded listeners that they are openly gay, married men. Interestingly enough, nobody on the panel disagreed more with each other than these two did during the course of the discussion. Rauch sees laws preventing homosexuality and laws protecting religious freedom as “radically unbalanced,” which will “poison the well for the types of negotiations we need to have going forward.” He also argues that religious people will hurt the most as a result of this debate as they “tar religion with the brush of discrimination. What they’re saying is that the first priority for religious people is to be able to discriminate.” Michaelson partially disagreed, calling discrimination distinct in the public as compared to the private sector.

Rauch later argued the final decision in the same-sex marriage debate should be a product of the American political process characterized by compromise and limited to the states. Michaelson disagreed, posing the question, “Should Georgia be able to file an exemption for the segregated restaurant to remain segregated?” Rauch stopped Michaelson and questioned the comparison to race, saying, “We always go straight to race…race is the extreme example [of discrimination] in America.” Michaelson still argued that Rauch’s views allow for the perpetuation of racism, satirically offering, “I guess I want to give the religious racist a little more credibility then.” The race analogy became a focus for the next portion of the discussion. Michaelson said, “[Sexuality] is both like and unlike race.” Fretwell Wilson countered, “This whole race analogy misses the fact that the fundamental Civil Rights Acts…all included exemptions.”

On the point of exemptions as a protection of religious freedom, the panelists seemed to agree (with the possible exception of Rauch), especially for small businesses. From there, however, they continued to differ on both the reach of exemption to larger commercial businesses and corporations and possible solutions to gay rights legal issues. Stern disagreed with Rauch’s proposed solution mentioned above saying, “Case-by-case works better than grand compromise.” Michaelson then countered the idea that the LGBT community should be “gracious in victory,” saying that no victory has really been won. He questions exemptions on a larger scale because of the potential to hurt more people and their involvement in the public sphere, to which Stern replied, in the most heated disagreement of the evening, “But not recognizing exemptions hurts equally deeply the people who have deeply religious beliefs and are not prepared to bifurcate themselves.”

No, the panel did not represent every point of view; despite the present diversity each panelist assumed same-sex marriage as acceptable, which does not hold true by any means among all American people. And no, this discussion was by no means comprehensive of the entire gay rights debate. I find that this discussion epitomized productive dialogue for pervasive issues such as same-sex marriage and gay rights.

While the analogy was disputed among the panelists, I do not know that the comparison of gay rights debate to the Civil Rights movement is entirely accurate or beneficial. The LGBT community has undeniably faced a form of discrimination, but that discrimination has not reached the point of enslavement, disenfranchisement, or other failures of equal protection that the Civil Rights movement addressed. Tying gay rights to the Civil Rights movement brings more emotion to an already heated subject and, as Stern suggested, often shuts down dialogue, which makes both sides extremely frustrated and Rauch’s ideal political resolutions impossible.

We must remember too that this discussion only addressed the legal understandings of gay rights and religious freedom. Christians, under protection of the law, can still oppose same-sex marriage, and some of the changes proposed during the discussion will hopefully protect Christians’ small businesses in the same way.

The matter of how these decisions impact the Christian faith still remains unanswered and honestly it’s difficult to articulate where I stand. However, I do think we have three responsibilities in light of Wednesday’s discussion and the gay rights movement as a whole.

First, keep having these discussions. As Professor Fretwell Smith so poignantly said on Wednesday, “Just because we have communities that are deeply, deeply opposed to one another doesn’t mean we can’t reach compromise.” As the discussion evidenced, common ground is in fact possible.

Second, ensure our relationships, especially our marriages, honor God. I think this is a classic example of removing the planks from our own eyes first. Even as sons and daughters of God, our relationships are full of hurt and brokenness, and unfaithfulness and abuse still mar our marriages. We have to do our part to restore the “sanctity of marriage” before accusing others of desecrating it.

Finally, and most importantly, love. The greatest commandment rings true here. Let us love God completely and others well as we walk in the Way of our Master, Jesus Christ.

Soli Deo Gloria