July 4, 2017

Religious Rights versus LGBT Rights: Who’s Being Privileged?

The Heritage Foundation hosted a panel discussion/debate between sexual orientation and gender identity (SOGI) civil rights advocate and author John Corvino, of Wayne State University, and religious liberty advocates and authors Sherif Girgis and Ryan Anderson, who also is a research fellow at the Heritage Foundation. They discussed their recently published book, Debating Religious Liberty and Discrimination, which concerns this crucial and highly contentious topic.

Corvino began the discussion by noting that the issue of discrimination versus religious liberty, unlike the issue of same-sex marriage, concerns several related questions. He identified three questions in particular. First, does religion deserve special protection in the law? Should the Constitution’s guarantee of religious liberty be implemented with laws protecting religious conscience? This, he believed, results in inequality among citizens, with religious citizens being privileged. He maintained that some religious employers will decline to provide services that many people believe they should, such as antidepressants (Scientologists) or blood transfusions (Jehovah’s Witnesses). He believes that judges “will be more sympathetic to Evangelical Christian claims than to other kinds of claims.” Exemptions “tell certain people that they don’t have to play by the same rules as everybody else.”

Secondly, he considered how far the state should respect the claims of conscience against generally applicable law. In particular, he cited the case of a local justice of the peace with a conscience claim against performing interracial marriages. He pointed out that a Hindu marriage registrar might decline to serve lower castes. Although these cases were cited as being beyond the pale, Corvino did say that the state should not require consciences to be “well formed” to receive exemptions, recognizing that this makes liberty of conscience meaningless, but left unclear exactly what disfavored consciences should be protected.

Thirdly, Corvino maintained that inconvenience and humiliation should be burdens which should govern the state’s determination of what categories should be prohibited from private judgment in antidiscrimination law. Corvino pointed out that homosexual customers have been denied goods and services because of their identity as homosexual as well as the service requested, and for goods and services facilitating homosexual behavior but not same-sex marriage. These are indeed different issues, but courts currently deny liberty of conscience in all three where SOGI laws are in place, and it is not clear that Corvino would allow conscientious objection in any of these categories.

Corvino felt that social conservatives are being inconsistent in insisting on religious freedom while supporting, or having once supported, sodomy laws. He maintained that Mississippi’s First Amendment Defense Act (recently upheld after having earlier been declared unconstitutional) protects only social conservative beliefs. Religious liberty, Corvino said, should be “about inclusion, not discrimination.”

Girgis said that both religious and secular, liberal and conservative premises “can get you a long way toward the conclusions” that he and Anderson support. He said that most recent debates have “involved a turn toward illiberalism in a lot of the opposition to certain kinds of religious liberty protections.” But “moral and religious integrity matter in themselves.” People should be free “to live by those convictions, you’re better off than if you don’t, and you’re better off even if you’re convictions are wrong.” Girgis said that scholars have shown that the belief that people should be free to follow their conviction has led to the legal doctrine of liberty of conscience, that “the state has to bow to conscience [and this] was the beginning of civil society.” He also said that evidence shows that states that protect religious liberty are “much more likely to respect other rights and liberties.”

How should religious liberty be protected? Girgis asked. He said that “exemptions matter not because religious people are special, in fact we think they should apply to people’s moral convictions, whether they are religious or not … [because] this aspect of your flourishing is fragile.” Denials of free speech can be overcome by expressing oneself in other ways, but denials of conscience rights are either/or propositions, one either takes the penalty (which can be severe) or violates one’s conscience. You can’t make up for the loss of integrity by living by one’s convictions on other matters. The Religious Freedom Restoration Act of 1993 did a fine job, Girgis said, noncontroversially for many years providing a general protection for conscience where did it not conflict with the common good, and protected religious minorities as well. Categorical protections on certain issues are also in order, Girgis said. Categorical exemptions are focused on “the less popular view, that the state itself didn’t support.” While the state may have to limit religious liberty, “it should not limit it to reduce the amount of moral offense that is given by a particular action,” i.e., the law should not directly attack moral beliefs.

Anderson said that “the government exists to protect the ability of citizens to flourish, it’s to promote the common good – where the state’s not the primary actor in seeking the common good, but the state’s role is to set up the conditions in which citizens can seek their good and the good of their communities.” Included in this is the understanding that “religion is part of the common good, the religious lives” of a country’s citizens are an important good to be protected by the state.

He reviewed how the government has handled conscience claims where aspects of the common good are affected by antidiscrimination law and policy. Few exemptions were given in the original Civil Rights Act of 1964. The Title IX Amendments of 1972, which concerned sex discrimination, defined discrimination more narrowly, and offered waivers from the law to religious institutions that requested it. He said that all state and local sexual orientation and gender identity (SOGI) laws define discrimination on the basis of sexual orientation and gender identity broadly “and are not particularly generous when it comes to religious liberty.” In particular, SOGI laws are crafted not primarily to prohibit discrimination in the general provision of goods and services to a particular class of people, but especially to attack the belief that sexual distinctions and choices should be based on nature, not on individual self will. The fact that SOGI categories are based on peoples’ behavior and feelings is used to make antidiscrimination law mean that any adverse judgment (discrimination) against those behaviors or feelings is illegal, not merely that the LGBT people may not be discriminated against where sexual morality is irrelevant to the goods and services. Thus, it would seem to this writer, that SOGI laws fail even under the Supreme Court’s narrow reading of the constitutional right to religious freedom given in the Employment Division vs. Smith case. These laws exist primarily to attack traditional religious sexual morality.

A questioner asked Corvino about his characterization of recent claims of conscientious objection as privileges. In particular, he asked if religious liberty is not a good to be balanced against antidiscrimination claims, in other words, a rightful good, not an unjust privilege. Corvino said that this is “a very complex question.” It may be best not to think in terms of “conflicting values, where one of them has to take precedence.” While he said that he once viewed the issue as between “liberty” and “equality,” he now sees “overlapping phenomena.” Here he seemed to make some concession for freedom of expression. Merchants should not be required to provide services “that they don’t otherwise sell” to satisfy antidiscrimination requirements, and might not be selling because it would be contrary to their beliefs. Thus, a baker should be required to sell cakes to LGBT persons, but perhaps not with decorations (such as two persons of the same sex on top) that express affirmation of homosexual relations. In addressing the specific question asked, which was asked about a hypothetical wedding planner, which involves custom work and presence at the event being planned, he said leeway might be given on the basis of personal freedom, not necessarily religious freedom.

Girgis said that “in general, there are way more win-win situations than it seems. Where there seems not to be, it’s worth drilling down into why.” He said that both he and Anderson agreed that the general provision of goods and services and employment “should be preserved for everybody, LGBT or otherwise.” On the other hand “allowing people to live by their convictions about sexuality and marriage will not undermine that.” Girgis said that “in most cases where people press” and hold that these goals “are inconsistent, we think that what they end up having as their goal in suppressing certain kinds of religious expression or religious conduct is they don’t want that conduct to send the message … that choices central to other people’s lives are immoral.” This, Girgis said, is an “illiberal goal.” It is therefore “worth drilling down into particular conflicts, and then really asking whether the thing that makes these two goals inconsistent is something worth going after.” Anderson added that for forty years abortion has been legal and the right of doctors not to perform an abortion has been protected in law. An important reason why this is possible is that declining abortion has never been defined as “discrimination on the basis of sex.” Such an argument could be developed, however, since only women become pregnant. By distinguishing between identity and behavior, which has made conscientious objection from abortion possible, we should also be able to avoid the claim that declining to perform sex reassignment surgery is discriminatory.

It seemed to this writer that, as was urged in an earlier article, that the question of justice between traditional religious believers and advocates and practitioners of some aspect of the sexual revolution is decided by carefully noting who is imposing on whom. It is quite clear that it is the party of whom action is demanded that is being imposed on. Against Corvino’s contention, this is not privilege, but the constitutional right to religious liberty possessed by everyone. Even atheists, agnostics, and “nones” possess religious liberty – the right not to be involved in religious ceremonies or activities.

And surely there is no more basic right than the right to avoid an action believed to be sinful or evil, however pained or offended anyone else is. The crucial question is whether an action is so wrong that it is not merely unwise or profoundly wrong, but sinful or evil. Service to persons of another race, even assuming a doctrine of racial inequality in the Bible or some other religious authority accepted by Christians, Jews, or Muslims, cannot reasonably be construed as sinful. Even during slavery, the cultural background to race relations in our country, it would not have been understood to be sinful for a master to assist a slave. But to be complicit in an activity understood to be sinful is sinful in itself, a claim made explicitly in the Bible (Matt. 18:7).

The true privilege involved in this controversy is giving civil rights protection to behavior and feelings, on the theory that this is what makes LGBT persons distinctive. But civil rights protection involves appeal to the Fourteenth Amendment, and equal protection of the law. Races can reasonably be understood to be equal, and so race cannot be used as a criterion for adverse judgement (discrimination). Religions and the two natural sexes in fact are very different, and thus are reasonable bases for discrimination. So in the opinion of this writer, they should not be antidiscrimination categories. But from a practical standpoint, the state can treat them as equal, and require citizens to do so in the public world.

But personal behavior and subjective feelings cannot possibly be treated as equal, it necessarily involves privileging some behavior (homosexual behavior) and feelings (gender identity). To declare all behaviors “equal” would require all crimes to be legal. As Justice Scalia pointed out in his dissent from the Romer vs. Evans decision, in which the Supreme Court first announced its opposition to liberty of conscience against homosexuality, one can legally practice private discrimination (adverse judgement) against many kinds of behavior (such as adultery or wearing real-animal fur) but not against homosexual behavior (or now transgenderism). What is truly being privileged is not religious beliefs and practices not shared by others (the right to these is guaranteed to everyone, although the specific claims one can make are dependent on one’s beliefs). Rather, under the SOGI regime, certain kinds of personal behavior are privileged from private adverse judgment (homosexual behavior and whatever personal behavior is thought appropriate to self-devised “gender”).

It is to be doubted that courts will favor Evangelical Christian conscience claims over others. It has instead been observed that they tend to favor groups deemed to be oppressed minorities. And the Constitution and its guarantee of free exercise of religion (“exercise” being an action word) are certainly a very appropriate basis for legislation and judicial rulings protecting the claims of conscience. What practically exists at the present time is statutory law (SOGI laws) overriding the obvious priority the Constitution gives to religious freedom.

The recent decision of the Supreme Court to accept the case of Masterpiece Cakeshop, whose owner was ordered by Colorado’s civil rights commission to undergo sensitivity training for declining to make a cake for a homosexual ceremony and to make the cake as well, means that the court will finally rule on the question of liberty of conscience against facilitating homosexual behavior by businesses. The result will be a different world for our country, either one in which the spate of lawsuits against social conservative business owners for declining to facilitate homosexual behavior largely ceases, or in which there is definitively no right of conscience against homosexuality by private businesses, and surely one in which Christian organizations come under intense legal assault for “discriminatory” policies against homosexual behavior. But whatever the outcome, if facilitating sinful behavior is indeed sinful itself, then faithful Christians cannot comply, but instead must accept exclusion from much of business and the professions, and perhaps closure of their institutions. And in either case, we must continue to argue for the righteousness of conscientious objection from behavior understood to be evil, as the most basic freedom of a free society.

4 Responses to Religious Rights versus LGBT Rights: Who’s Being Privileged?

  1. William says:

    “If facilitating sinful behavior is indeed sinful itself”? How can it not be? Will the Supreme Court order me to facilitate sinful behavior, behavior that my faith convinces me as abjectly sinful? We are indeed standing at a crossroads in America in 2017.

  2. PM Waggoner says:

    This is a good analysis of the problems created by SOGI laws! Thank you so much.
    My question on the Colorado bakery case is will it have any relevance to states that, wisely, have never made sexual orientation a “protected” category? Won’t businesses and ministries still be free in those states? Isn’t the real problem the fact that 20+ states and multiple cities have been illiberal enough to pass SOGI laws?

    • PM Waggoner,

      The problem is that the LGBT agenda is a severe reduction of religious freedom across a wide range of occupations, and is advancing. Even areas that do not have SOGI laws are threatened by a possible national SOGI law – the Equality Act – which would take away any right of conscience against facilitating homosexual behavior. SOGI proposals also continue to be advanced where SOGI laws don’t now exist. So it is not correct to think of anyone as “safe” or really “free” from these laws. The Masterpiece Cakeshop case is relevant to everyone. It’s outcome will could put an end to the spate of lawsuits where there are SOGI laws, and secure religious liberty where there are not now SOGI laws, or put an end to religious freedom against homosexuality where there are SOGI laws, and cause more intense pressure to enact them elsewhere. Also, I understand that there is a “tipping point,” where enough states enact SOGI laws that federal courts consider themselves justified in treating sexual orientation and gender identity as a protected category.

      The states and localities that have SOGI laws are already a severe problem, affecting many Christians. Hopefully there will be a favorable judgment when the Masterpiece Cakeshop case reaches the Supreme Court, but the court will have to go against the almost unanimous court rulings against liberty of conscience against facilitating homosexual behavior in providing goods and services. Unhappily, the decision probably rests with Anthony Kennedy, who authored all of the radical decisions supporting homosexuality against Christian morality, including the first one, the Romer decision in 1996, which explicitly set aside the religious freedom of business owners in facilitating homosexual behavior as an objection to SOGI laws.

      We need to keep this case in much prayer, for the lawyers arguing for religious freedom, for the justices decision making a righteous decision, and that nothing nefarious would be done to cause an unrighteous decision.

      Rick Plasterer

  3. Catherine Morgan says:

    Although I believe that the bakery has been ruled not an art form, I have a different take on this myself. As a painter and writer, I believe that decorating a special cake is indeed an art form, and that an artist has the right to refuse to make art that violates his or her beliefs — whether those beliefs be religious or secular. The more I’ve read about this case, the more I see it as a matter of artistic freedom and integrity. I happen to be bisexual, but that doesn’t mean I am automatically biased against the bakery.

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