Sen. Orrin Hatch, R-Utah, writes:
Our laws can promote freedom from discrimination alongside freedom of religion. An extreme approach that believes one side wins only if the other side loses, that would veto any affirmation of existing protections, will produce nothing but discord and resentment. What we need instead is compromise and good faith, on both sides.
Sound a lot like what Jonathan Rauch has been saying.
I’ll note that this was written as the GOP took the presidency and maintained its majorities in the Senate and House, so no, it’s not an argument being made from political weakness.
[Added: I understand the response “Sure, now they want to compromise,” but activists have stated for 20 years that their goal was to pass sexual orientation (and, more recently, gender identity) nondiscrimination protections, and now there’s a GOP president who might actually support and sign a reasonable bill. So staunch opposition to religious exemptions and requiring that the existing Religious Freedom Restoration Act (signed by Bill Clinton) be excluded from applying to any such measure—as the Human Rights Campaign and others are demanding—is not a strategy that seeks to accomplish anything except to maintain the political standoff so useful in fundraising appeals.]
A win-win compromise—LGBT legal protections with reasonable and traditional exemptions for religious belief, especially among small, independent service providers—would be in the best interest of everyone except for activists whose power and prestige is based on perpetuating the culture wars.
19 Comments for “Faith and Freedom Can Get Along Just Fine”
posted by Tom Scharbach on
A win-win compromise—LGBT legal protections with reasonable and traditional exemptions for religious belief, especially among small, independent service providers—would be in the best interest of everyone except for activists whose power and prestige is based on perpetuating the cultural wars.
We already have “reasonable and traditional exemptions for religious belief” – laws (e.g. Religious Freedom Restoration Act of 1993) and constitutional law decisions (e.g. Sherbert/Yoder 1963/1972) prohibiting government from imposing a “substantial burden” on religious practice unless the government can demonstrate a “compelling state interest” and that the government has used “the least restrictive means” to further that purpose.
All that remains is for the states to extend the Sherbert/Yoder/RFRA test to state laws to the extent that the states did not do so after <emBoerne (1997) ruled the RFRA unconstitutional as it applied to the states, restoring Sherbert/Yoder to its original application — all laws, federal, state and local.
We need go no further to accomplish the goal of “reasonable and traditional exemptions for religious belief”. We do not need to turn the constitutional balance established by Sherbert/Yoder/RFRA on its head. We do not need to carve out special government sanctions for discrimination against gays and lesbians. We do not need to elevate one religious belief over all others as a matter of law. We do not need to allow government officials to ignore the rule of law. We don’t have to do any of it.
We already have “reasonable and traditional exemptions for religious belief” in place.
posted by Doug on
Stephen complains that activists are perpetuating the culture wars and yet it’s the GOP that is hell bent on passing new legislation that allows discrimination against specific people who were born the way they are.
posted by TJ on
The “gay activists” actually have much less political power then Stephen or other people seem to think.
Polls say that only 4% of voters self identify as gay.
Yes, the actual number is higher,but politicians see the low number and compare that to say, the AARP or the NRA or the Christian Coalition.
posted by Jorge on
Singing Orrin Hatch’s praises is much more challenging than singing Donald Trump’s praises, but only because his name and possible title are more challenging to pronounce.
(Dear! You’re confusing him with Jeff Sessions!)
Oh. Sorry. (That’s the first time I turned “they all look alike” into a white male thing.)
…okay, I can see why the president probably wants to veto the law. It would overturn his executive order prohibiting discrimination by federal contractors against L, G, B, & T persons. No?
Hahahaha! Congress can’t even overturn his executive orders because he’ll veto them, so they’re trying to pinch his balls by attaching it to Defense.
“It is limited only to… religiously affiliated corporations, associations, educational institutions, or societies, in conformance with exiting protections in other laws. It clarifies that religious organizations do not lose religious liberty protections merely because they enter into contracts with, or receive grants from, the federal government. That’s it.”
Well if you say so but if so there needs to be more conversation about it.
“Finally… In recent legislation, my home state of Utah has shown that our laws can promote freedom from discrimination alongside freedom of religion.”
I’m sure this is true. It would be more persuasive if he expanded on it.
We already have “reasonable and traditional exemptions for religious belief” – laws (e.g. Religious Freedom Restoration Act of 1993) and constitutional law decisions…
This being a political climate in which people love to talk about how scared they are on behalf of people they are far removed from, I’d feel much more secure if we were less dependent on constitutional law decisions and had a few more legislative laws backing them up.
Everyone knows that the Obama administration is hostile to religious liberty. That’s one of the reasons Clinton was defeated on a tide of “wrong track” polling. But this particular fault–using employment discrimination as a pretext to discriminate against religious employment–has not happened yet. The next administration will be more favorable and reverse the slide. Drop the amendment and put it in next year.
posted by TJ on
Senator Hatch is certainly capable of introducing a compromise bill….he has been in office for awhile.
I don’t see the alt-right or the religious right supporting s LGBT rights bill, if it only deals with a general exempting for certain small businesses
posted by Doug on
Maybe all this religious freedom BS will become moot. According to Ken Blackwell, Trump’s domestic policy advisor, “Gays can be reformed, just like arsonists”. Thank God that Trump is so good on LGBT issues.
posted by Tom Scharbach on
I’d feel much more secure if we were less dependent on constitutional law decisions and had a few more legislative laws backing them up.
If Sherbert/Yoder (constitutional decision) and the federal RFRA (a “legislative law”, as you put it) don’t cut it, how about a constitutional amendment, then?
Short, simple, to the point, adds nothing, subtracts nothing, carves it in stone.
But how many times do we need to shut the barn door?
posted by Tom Scharbach on
… requiring that the existing Religious Freedom Restoration Act … be excluded from applying to any such measure …
I gather you are referring to Section 1107 of the Equality Act of 2016 (“The Religious Freedom Restoration Act of 1993 (42 U.S.C. 2000bb et seq.) shall not provide a claim concerning, or a defense to a claim under, a covered title, or provide a basis for challenging the application or enforcement of a covered title.“)
For the record, I think that it is wrongheaded to exempt the Civil Rights Act of 1964 from operation of the Sherbert/Yoder/RFRA “substantial burden, compelling government interest, least restrictive means” test. It seems to me that all laws should be subject to the test. I wrote to my Senators and Congressman to let them know my views earlier in the year. It is all I can do.
posted by JohnInCA on
Is anyone ever going to provide a good explanation for why “anti-religion discrimination in the name of God” is bad and something that should be prohibited behavior, but “anti-LGBT discrimination in the name of God” is something we should bend over backwards to accommodate?
’cause it really feels like “I can discriminate against you, but you can’t discriminate against me” is bad law, no matter how much you dress it up in “small business” and “conscience”.
posted by Jorge on
I would say that under my understanding of the Constitution, any situation that privileges one religion over another is wrong.
“anti-LGBT discrimination in the name of God”, as you would categorize the current movement toward state religious freedom restoration acts, is a backlash against laws, policies, and judicial decisions that privilege religions that are progressive toward homosexuality over religions that are regressive toward homosexuality.
…something we should bend over backwards to accommodate?
’cause it really feels like “I can discriminate against you, but you can’t discriminate against me” is bad law, no matter how much you dress it up in “small business” and “conscience”.
That’s understandable.
“Bending over backwards to accommodate” something, “bad law”, and dressing something up as “small business” and “conscience” are three to four different things. They quite possibly may each different standards of moral/political reasoning and measurement.
In approaching a problem, which is to be the primary consideration and which are to be secondary: pain, law, community, or the individual? Is the current situation a social problem, a legal problem, a political problem, or a personal problem? There is risk of muddling the categories as situations change slightly. One can apply a fixed but specialized ideology to the wrong kind of situation. I place myself in this category.
I must take a moment to thank my government job’s leadership for achieving great competence in this separation.
posted by JohnInCA on
I’m a week and a half late to respond, but I didn’t want this to go unanswered, even if it will probably go unread:
“[…] privilege religions that are progressive toward homosexuality over religions that are regressive toward homosexuality.”
Loving v. Virginia.
Griswold v. Connecticut.
Lawrence v. Texas.
Windsor v. United States.
Obergefel v. Hodges.
In all those cases, there was a “privileged” religion, in that a specific religious belief was enshrined in law. Losing that privilege didn’t give privilege to someone else, it just leveled the playing field.
Losing unearned high ground might feel like someone else is being favored, but you shouldn’t mistake that for someone else being privileged.
Or to put it another way: Saying that because you believe gay marriage is a sin that I shouldn’t be able to get married was the “privilege”. Both you and me being able to choose, for ourselves, whether or not to get married? Doesn’t privilege me.
posted by Tom Scharbach on
… judicial decisions that privilege religions that are progressive toward homosexuality over religions that are regressive toward homosexuality …
That — requiring that conservative Christians show a “substantial burden” to exercise of religion before finding public accommodation laws of general application unconstitutional is discrimination against conservative Christians — does seem to be the current conservative Christian meme. But the alternative — finding laws unconstitutional even if the laws create an inconsequential burden or no burden at all, in effect finding them unconstitutional if a religious adherent just doesn’t agree with them — brings to mind Justice Scalia’s words in Employment Division: “<To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself."
posted by Jorge on
I was talking about the gay marriage decisions but okay.
posted by Tom Scharbach on
I was talking about the gay marriage decisions but okay.
How does a law or court decision permitting my husband and me to marry discriminate against you and/or your religion? Do laws permitting couples to marry if one or both has been divorced also discriminate against you and/or your religion? How? Do laws limiting marriage to “one man and one woman” discriminate against other religions (e.g. Reform Judaism) that marry same-sex couples?
You are walking into a real legal/constitutional swamp, Jorge.
posted by Jorge on
You are walking into a real legal/constitutional swamp, Jorge.
It seems to me that the best way to stay out of a swamp is to avoid uprooting trees and that once you’re in the swamp it is best to plant trees again. Let us proceed.
How does a law or court decision permitting my husband and me to marry discriminate against you and/or your religion?
First things first. I reject the premise in your question that the marriage decisions (by which I mean Obergefell and Windsor) were about permitting people to marry. Since Lawrence v. Texas, nothing has prevented you from marrying. There may be financial and social disincentives, but that is not the same as being unable to marry. That brings us to discrimination.
The LGB community’s appeals to “why me?” are in my view no different than the conservative Christians’ appeals to “why them” (with or without a question mark). They both presuppose and affirmatively privilege a particular theological belief on the nature of homosexuality in society.
Whether homosexuality is morally repugnant, whether gays should be treated with scorn, or whether the reverse should prevail, this is all irrelevant. Either the differences between men and women or straight and gay relationships are significant enough to justify a marital distinction, or they are not. That “whether or not” requires a decision.
Why, then, should the courts step in to overturn that decision once it has been made by the people? When the leading judicial decision of the land references the negative feelings and negative financial consequences that are the design of a religion-neutral law, and uses those negative consequences in a circular manner to argue that the law is unconstitutionally harmful, that is at the very least an unjustified intrusion into majority rule. And I do think the the high court should be held accountable for violating the First Amendment by establishing an endorsement of a religious view about homosexuality, that such harm is unacceptable.
posted by Houndentenor on
In other words, you think it should be legal for an anti-gay Christian to discriminate against gay people but remain illegal for gay people to discriminate against anti-gay Christians. I’m not sure what kind of logical twisting it takes for that to make sense. Since there are no reasons to discriminate against gay people other than religious ones, leaving in that loophole makes the nondiscrimination law pointless, so why bother?
posted by Tom Scharbach on
Is anyone ever going to provide a good explanation for why “anti-religion discrimination in the name of God” is bad and something that should be prohibited behavior, but “anti-LGBT discrimination in the name of God” is something we should bend over backwards to accommodate?
No, because there is neither rhyme nor reason underlying the arguments.
In the immediate aftermath of Obergefell, a dozen or so conservative Christian small business owners declined to provide goods and services to same-sex weddings because Jesus, and ran afoul of state or local public accommodations laws. The anti-gay hate machine (American Family Association, Family Research Council, et al) took the opportunity to transform that relatively minor problem into a national conservative Christian frenzy, ramping up conservative Christian fear and loathing, alluding to Hitler and warning of boxcars. The libertarian-conservative commentariat (e.g. George Will) jumped in with both feet at that point, describing gays and lesbians as authoritarian “sore winners” determined to crush (“stamp out and punish” in Will’s words) conservative Christians. Republican politicians quickly took up the cause, introducing well over a hundred state-level bills specifically targeting gays and lesbians for special, state-sanctioned discrimination, and (because it is almost impossible to argue with a straight face that baking a cake “substantially burdens” religious exercise) abrogating the Sherbert/Yoder/RFRA “substantial burden”, “compelling government interest”, “least restrictive means” test by removing/lessening the “substantial burden” prong of the test when religious discrimination against gays and lesbians is at issue. Republicans in Congress doubled down with the First Amendment Defense Act, eliminating the “burden” requirement entirely from the Sherbert/Yoder/RFRA test, and authorizing discrimination by government officials.
The conservative strategy is made clear from the language of the legislation being proposed: (1) the legislation abrogates the “substantial burden” prong of the Sherbert/Yoder/RFRA test, either eliminating the “burden” requirement entirely or lowering the “substantial burden” to mere “burden”, so that conservative Christian bakers, florists and photographers can make a plausible case that public accommodations laws interfere with “exercise of religion”, and (2) the legislation carefully limits application of the abrogated standard to same-sex marriage, so that religious objections to other forms of marriage and/or other issues and protected classes do not benefit from abrogation of the “substantial burden” requirement.
All of this would be farce but for the serious damage that may be done to both the constitutional balance between laws of general application and religious exercise, and to religious liberty. Neither is trivial.
posted by TJ on
1. It’s simple exempt self employed and small businesses (as is generally already the policy).
Saying that a religious objection to same sex should be the basis for exemption, but not a religious objection to various types of heterosexual marriages (I.e. second marriages, marrying outside of church) is not ok. Its not constitutional.
I suspect quite a few people in politics know this, but pandering to people’s hatred and fear is profitable.
posted by Jorge on
Since there are no reasons to discriminate against gay people other than religious ones
You really need to move to a blue city.