When Does Religious Freedom Mean Freedom to Discriminate?

When Does Religious Freedom Mean Freedom to Discriminate?

When Does Religious Freedom Mean Freedom to Discriminate?

A Kansas bill to allow segregation against gay people shows us where the right’s conception of religious liberty leads. 

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Update: Originally, reports on this bill said that it was likely to pass, but last night, Kansas State Senate President Susan Wagle issued a statement against it, saying, “A strong majority of my members support laws that define traditional marriage, protect religious institutions and protect individuals from being forced to violate their personal moral values. However, my members also don’t condone discrimination.” Now that it seems likely to be defeated, a phrase in this post referencing it's likely passage has been deleted. 

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Sometimes, the religious right can be pretty clever in its rhetoric. “Family values” was a smart phrase, implicitly defaming liberals as decadent child-haters, while making fundamentalism seem cozy and safe. Then the gay marriage movement robbed it of its power, forcing the Christian right to take an explicit stand against other people’s domesticity and familial commitments. Something new was needed. Enter “religious liberty.”

Like family values, religious liberty is, on the surface, unobjectionable. Almost all of us, after all, believe that people have the right to practice whatever religion they want. But “religious liberty,” as the Christian right understands it, means something quite different. It means the liberty to discriminate on religious grounds. And it has become central to the furious backlash against both gay marriage and Obamacare.

Right now, there’s a particularly disturbing example of this in Kansas. On Wednesday, the Kansas House of Representatives voted 72-49 to pass House Bill 2453, “an act concerning religious freedoms with respect to marriage.” If it becomes law, it would, writes Slate’s Mark Joseph Stern, “legalize segregation of gay and straight people in virtually every arena of life.” It would allow anyone, on the grounds of “sincerely held religious beliefs,” to refuse to provide “any services, accommodations, advantages, facilities, goods, or privileges; provide counseling, adoption, foster care and other social services; or provide employment or employment benefits, related to, or related to the celebration of, any marriage, domestic partnership, civil union or similar arrangement.” In the name of religious freedom, it would allow businesses including stores, hotels, movie theaters and restaurants to turn away gay couples. Government employees, too, could refuse to serve gay people if they claim that doing so violates their religious beliefs.

The extremism of this bill should demonstrate the problem with the right’s religious liberty argument more broadly. The argument can be powerful, eliding normative debates about gay marriage or contraception—debates the religious right has already lost—in favor of a First Amendment argument that at least some civil libertarians find persuasive. The blogger Andrew Sullivan, for example, titled a recent post about Little Sisters of the Poor, the Catholic order that is suing over Obamacare’s contraception mandate, “Liberalism vs. Religious Liberty?”

The Little Sisters of the Poor claim that asking them to sign a form exempting them from the birth-control mandate violates their religious freedom, since the form would trigger the provision of contraception by third-party administrators. “The mere act of delegating the authority to approve of contraceptive coverage to a third party is itself an act of complicity in something the nuns oppose for religious reasons,” writes Sullivan, bemoaning the “general liberal contempt for the genuine moral quandaries religious organizations may face.”

The logic here is that the freedom of religious people to be utterly uninvolved—even in the most tangential way—with any activity that they consider sinful trumps others’ rights to equal treatment under the law. By this same logic, Kansas’s anti-gay segregation bill would appear perfectly legitimate. And so, in many cases, would racial segregation. After all, as the scholar Jay Michaelson points out in “Redefining Religious Liberty: The Covert Campaign Against Civil Rights,” a report for Political Research Associates, it was not uncommon in the post-war years for supporters of segregation to claim a religious mandate. “The facilities should be separate,” Jerry Falwell preached in 1958. “When God has drawn a line of distinction, we should not attempt to cross that line.”

It was not until 1982 that the Supreme Court allowed the federal government to strip the evangelical Bob Jones University of its tax-exempt status because of its ban on interracial dating. In doing so, it dismissed the right’s religious liberty arguments. “This decision did prioritize a secular American value (desegregation) over self-described religious values,” writes Michaelson. As in contemporary battles, he continues, “[T]he Right’s characterization inverted the sense of who is the victim and who the oppressor: instead of the African-American students being stigmatized and discriminated against, the Christian Right argued that the university was the true victim, the latest in a long line of Christian martyrs.” They are, of course, making the same argument now. Those who regard it sympathetically on civil liberties grounds should be clear about its implications.

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