The Golden Rule
Last Friday the House of Representatives passed the Equality Act, by far the most aggressive legislative step taken to protect the LGBTQ community from discrimination. In essence the act creates a subsection of the 1964 Civil Rights Act (CRA). The CRA already outlaws discrimination based on “race, color, religion, sex, national origin, age, or disability.” The Equality Act adds (under the heading of sex) “sexual orientation or gender identity.” Despite the fact that this bill has very little chance of passing the Senate, LGBTQ rights advocates consider even its passage in the House to be a victory for this group that continues to be marginalized and discriminated against.
Some conservative religious liberty advocates believe that there are problems with the legislation as it stands now. Included among these advocates are the General Conference and North American Division Leadership, which released a statement raising their concerns. While the statement does not directly state their concerns, if those issues are similar to other organizations, they seem to be twofold. First, there are no explicit protections for religious institutions given in the bill. Second, the bill explicitly states that the Religious Freedom Restoration Act (RFRA) cannot be used against, or provide a defense from, a claim arising under the Equality Act. This means that religious adherents (individuals) cannot use their faith as a justification for discrimination against members of the LGBTQ community. While I think the church and other religious liberty advocates are correct as to their first concern, the second concern gives me pause.
To be fair, the Equality Act is silent on the question of how this would affect religious institutions. The assumption could be made that the Equality Act is mostly concerned with editing the CRA and as such whatever religious exemptions apply under the CRA would still be in effect if the Equality Act passed.[1] However, it is important to show a commitment to religious liberty by making it statutorily clear that this law will not rob religious institutions of moral self-determination. It is also possible that such incremental changes are simply a part of the give and take within the process of writing a statute. Similarly, the draft of what eventually became the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act did not include explicit protections for religious speech. Despite the fact that such explicit protections were not necessary, the bill was amended to state that the law was not targeting religious speech protected by the First Amendment. The bill went on to pass with bipartisan support. The same thing could happen here and there is no harm in reinforcing our commitment to religious freedom and free exercise, even in this sensitive area.[2]
The discussion regarding RFRA and religious individuals is a little more convoluted. In short, RFRA states that the government can only substantially burden a citizen’s free exercise right when there is a compelling state interest and the legislation is narrowly tailored to address that compelling interest.[3] In bypassing RFRA, the House is essentially stating that they believe discrimination against the LGBTQ community is a compelling state interest such to justify the burden to free exercise on the part of religious adherents who would want to discriminate against the LGBTQ community. Laying aside the issue of constitutionality, I agree with the congressional intent expressed here.[4] I explained that argument before in this space so I don’t want to rehash it, but conversations I’ve had with other attorneys about this issue in the last few days were illuminating.[5] I always frame my objection to the ability of religious adherents to discriminate against the LGBTQ community in this way: if a shop owner can use their religious beliefs to discriminate against the LGBTQ community why is it that a shop owner cannot use religious beliefs to discriminate against Black people? Or women? Or Muslims? One lawyer said that it just didn’t seem right that religious business owners don’t have protections for their religious convictions. I would agree – except that the CRA already does exactly what seems unfair in the areas of “race, color, religion, sex, national origin, age, or disability.” If religious adherents had a problem, they should’ve fought against the CRA.[6] The issue that I haven’t seen addressed to any ethical, theological, or legal satisfaction is why the LGBTQ community should not be afforded the same protection as the other groups already covered under the CRA. If we decide that the LGBTQ community is not worthy of such protection, then how does discrimination against them not open the door to discrimination under the categories already listed in the CRA?[7]
And so we find ourselves exactly where we were about this time last year, when the Supreme Court refused to address the primary issue in the Masterpiece Cakeshop case. We are still left with what seems to be the intractable question of religious freedom. What do we do when the exercise of our religious freedom impinges upon the rights and freedoms of someone else? As difficult and as intricate as the issues can be, it may be that the answer is indeed quite simple. “So in everything, do to others what you would have them do to you, for this sums up the Law and the Prophets.”[8]
[1] After all, churches and religious institutions now have the ability to discriminate in terms of membership, employment, and a host of other issues, even when discriminating based on categories listed in the CRA. For example, despite the CRA, the state cannot force the SDA Church to hire women pastors or treat them equally, as is blatantly apparent.
[2] To be clear, as much as I despise discrimination (and think it’s a sin), if the free exercise of religion means anything it has to mean that a church can decide that they don’t want to hire LGBTQ (or Black or women) employees, or have those groups be members of their religion. I even see the merit of allowing religious organizations to put discriminatory exceptions on the use of their resources by the public (I’m specifically thinking of a church publicizing that their building is for rent for weddings or other meetings, but then restricting who can rent only to those who fit their moral criteria). I’m not sure that I agree with that position, but I do see the logic of it.
[3] RFRA was Congress’ attempt to reestablish the legal standard regarding free exercise promulgated in Sherbert v. Verner, a case involving unemployment benefits and an Adventist who was fired for refusing to work on the Sabbath. Justice Scalia overturned that standard in Employment Div. v. Smith, stating that all the government needed to satisfy the First Amendment was a neutral law of general applicability.
[4] While I agree with the intent, I can see how a court might believe that Congress is usurping the court’s role in interpreting the law.
[5] In the piece linked in this sentence I also explain why my beliefs about God also preclude a Christian from discriminating.
[6] In fact, religious adherents did fight against the anti-discrimination provisions of the CRA – and lost. In response they created a new, more palatable socially divisive issue, abortion, and started calling themselves the Religious Right.
[7] Let me take two options off the table. One, the idea that the issue in cases like Masterpiece is that the owner doesn’t support the moral choice of same-sex marriage as opposed to LGBTQ status falls flat to me. Moral choice can be used as a distinction in other cases that we already believe are clearly wrong – like miscegenation (i.e., It isn’t that I’m discriminating against the person being Black, it’s the moral choice of marrying a White person.) Two, for a long time there was a lot of debate about whether same-sex attraction was a choice. Besides the fact that the evidence over the last 15-20 years has been moving away from that position, even if we posit that it is a choice the argument would still be found wanting. The fact that something is a choice does not automatically mean it is not worthy of protection from discrimination. Under the CRA there is one other category that is clearly a choice – religion.
[8] Matt 7:12
Jason Hines is a former attorney with a doctorate in Religion, Politics, and Society from the J.M. Dawson Institute of Church-State Studies at Baylor University. He is also an assistant professor at AdventHealth University. He blogs about religious liberty and other issues at www.TheHinesight.Blogspot.com.
Previous Spectrum columns by Jason Hines can be found at: https://spectrummagazine.org/author/jason-hines
Image Credit: Unsplash.com
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