How does one make privilege seem to be equality? Simply have the law declare adverse judgment against it to be discriminatory. This has been the highly successful strategy of the LGBT revolution, and unless defenders of the right of conscience continually point out the illogicality of it, the public will come to accept as common sense the denial of conscientious objection from behavior deemed to be immoral.
In innumerable cases courts interpret laws that prohibit discrimination against homosexual persons to prohibit discrimination against homosexual behavior, and thus to require complicity in behavior Scripture declares to be sinful. Pointing to the many types of behavior one can legally object to in the marketplace, and the obvious wrong of having to facilitate activity deemed immoral, is met with the claim that discrimination against homosexual behavior is discrimination against homosexual persons.
A very recent case of this type concerns Telescope Media Group videography company in St. Cloud, Minnesota. Influenced by Reformed theologian John Piper’s comparison of telescopes magnifying distant stars and microscopes magnifying small objects with our reason for being, which is to magnify God, Telescope Media Group founders and owners Carl and Angel Larsen endeavor to glorify God in all their work and present his truth through their video skills. Although they have a clear religious and expressive purpose in their work, and desire to use their talents to tell stories with their videography about “the historic, Biblically orthodox definition of marriage,” they are unable to use their narrative skills with weddings because of Minnesota’s sexual orientation anti-discrimination law. Not only does the law provide for severe civil and criminal penalties (triple compensatory and punitive damages to the aggrieved party up to $25,000, and up to 90 days in jail), but it is aggressively enforced by the state attorney general with “testers” who seek out merchants who will decline services that contribute to homosexual behavior.
To avoid this, the Larsens, with the assistance of the Alliance Defending Freedom legal service organization, filed a pre-enforcement lawsuit in federal court last December, seeking an injunction to prevent them from being prosecuted for declining to photograph same-sex weddings, since this contradicts their purpose of advancing belief in marriage between one man and one woman as being God’s design for marriage.
Late last month, the federal district court dismissed Telescope Media Group’s suit with prejudice, most notably dismissing the expressive right of the Larsens to convey a message supporting traditional marriage as similar to a “whites only” applicant sign. The decision gave no weight to the fact that creative skill would be used to promote a message the Larsens disagree with, indeed which they strongly oppose, and opposition to which is part of their artistic effort. Rather, as a public accommodation, their expression can only be sold to customers, not used to express their own ideas.
Here it is crucially important to see the problem of incorporating behavior into personal identity. It is true that freedom of expression does not give one the right to engage in an illegal action by announcing that one will commit an illegal act, which seemed to be one point of the “whites only” reference. But the illegality of conscientious objection from homosexual behavior, and the requirement that the Larsens use their expressive talents to favorably present same-sex marriage (any other treatment would be held discriminatory), when the point of their project is to present Biblical marriage as God’s design, are also points at issue. Presumably the court also meant that denial of service facilitating homosexuality is like denial of service to non-whites. But it is not. Non-whites have immutable racial characteristics which would be the basis of denial in a case of racial discrimination. If personal behavior is the basis of denial, then it is the actions of the person, not the person himself or herself who is being objected to.
And yet courts have rejected this reasoning. Both the New Mexico Supreme Court in the Elaine Photography case (2013) and the U.S. Supreme Court in Lawrence vs. Texas (2003) held that discrimination against the conduct of persons in a class is discrimination against that class of persons. But personal behavior cannot be consistently appealed to as part of personal identity, however cherished it might be. The constitutional principles appealed to are “liberty” and “equality.” If behaviors are “equal,” all crimes would be legal, and if they are all “free” there would be the same result.
Nor is there a consistent way to restrict this freedom and equality to sexual behavior is if we define our own reality, as the Supreme Court declared in both the Casey (1992, upholding abortion) and Lawrence decisions. Homosexual behavior cannot be protected against adverse public or private judgment by appealing to any general principle, but only by moral intuition. Part of the public, and especially its most influential sectors in education and the mass media, are convinced freedom for sexual behavior should be a constitutional right. And so now several justices on the Supreme Court have made it so. But this amounts to imposing the intuition of some citizens on others, not a reasonable judgment from the Constitution.
Most notably, the comparison of sexual orientation/sexual behavior to race fails the test of Dr. Martin Luther King Jr.’s maxim that people “should not be judged by the color of their skin but by the content of their character.” But it is by inclination and behavior that we do judge character. Translating Dr. King’s maxim into sexual orientation/gender identity (SOGI) terms, we would have to say that persons who engage in homosexual behavior should not be judged by the content of their character, but by the content of their character. In our world today, people do come up with different judgments about sexual behavior. But in courtrooms across the land, a certain kind of sexual inclination and behavior, homosexuality, is being carved out of the assessment of character and held to be above criticism, and, in the current controversy, above adverse private judgment.
This problem of the lack of an immutable characteristic pertaining to homosexuality was alluded to by Justice Scalia in his dissent the Romer vs. Evans decision (1996) – although in a pre-Lawrence context – in which he speculated on exactly how homosexual persons might be identified, and thus claim any possible rights related to their status. But of all of the characteristics considered (sexual orientation, conduct, practices, relationships), not one is an immutable characteristic, and for a given individual, one or all might cease to be the case with that person.
What the court has in fact done, expressly in decisions authored by Justice Kennedy, is to declare a right (based on the Griswold vs. Connecticut and Eisenstadt vs. Baird decisions, which found constitutional rights to contraception, in the final analysis on moral intuition) to “certain intimate conduct.” It has also formally excluded religious motivation from any part in law pertaining to sexual behavior. These are not principled decisions. The first cannot be gotten out of general principles of liberty and equality. The second unreasonably excludes ideas. People hold other ideas as non-negotiable positions (the good of environmental protection, for instance) without those ideas being excluded from law. A non-negotiable belief may still have rational support (e.g. a clean environment is more healthy), and thus properly be a candidate for inclusion in law.
But even accepting these constraints, an absolute right to sexual behavior still does not involve a duty to cooperate in that behavior, which is what is being required by courts using SOGI laws at the present time. Currently, Justice Anthony Kennedy seems unclear on this. In the same Lawrence decision that deplored “private discrimination” against homosexual persons, he acknowledged that the precepts of traditional morality are for many people “not trivial concerns but profound and deep convictions accepted as ethical and moral principles to which they aspire and which thus determine the course of their lives.” (Emphasis added.)
Respect in law for these moral commitments would be true equality, since no one would be required to facilitate activities they believe are evil. It is, after all the party of whom action is required, not the party demanding action, that is being imposed on. But beyond that, respect for the religious conscience, even when others are pained, is mandated by the priority that the First Amendment gives to the “free exercise” of religion (exercise being an action word) and freedom of speech.
The partisans of the sexual revolution may prevail in courts – and in part of the court of public opinion – with loose comparisons of sexual morality to racial discrimination. But they do not have the logic of liberty or equality on their side, and certainly not the priority the Constitution gives to freedom of speech and religion.