Gay rights may come at the cost of religious freedom…if you redefine religious freedom

Emma Green has a feature in The Atlantic titled “Gay Rights May Come at the Cost of Religious Freedom,” outlining all of the ways that marriage equality and non-discrimination laws bump elbows with Americans’ religious sensibilities. And from the workplace to the bakery to the private college, it doesn’t look good for Team Jesus.

I use the term Team Jesus because nowhere in the feature are the concerns of any religious group other than conservative Christians raised. In fact, the one non-Christian example Green highlights outlines how Jewish rabbis aren’t clamoring for their own versions of “pastor protection” laws that allow them to refuse to perform same-sex marriages (which they are still allowed to do regardless). The fact that concerns over religious liberty are entirely limited to the Christian religion makes it abundantly clear that the argument has nothing to do with religious freedom and everything to do with Christian supremacy.

Each of the concerns Green raises about the freedoms that will be lost at the expense of LGBT gains aren’t freedoms at all. They’re entitlements to discriminate.

Jefferson said that the government could only intrude on religion to the extent that its actions were “injurious to others.” Discrimination is, by definition, injurious to others, quite literally picking our pockets and less literally breaking our legs. The government can, should and will intrude to curtail its influence to the extent that it affects the public sphere.

Stained glass church religion

Jesus, via Shutterstock

Green begins with hiring discrimination, wondering aloud whether “private employers who claim to have a religious objection to having gay employees” are allowed to exclude them from the workplace before quoting a law professor, who shoots down the entire premise. Judges, the professor notes, are going to be highly skeptical that barring gay people from the workplace is a legitimate religious belief. Nowhere in the Bible does it say that gay people can’t work for you; given how the Bible treats sinners of all stripes, a believer would probably be on safe ground taking a gay person as a slave. In any case, the ability to hire and fire solely on the basis of sexual orientation isn’t a freedom any more than the ability to hire and fire solely on the basis of gender is a freedom, which is why the Equal Employment Opportunity Commission ruled recently that both kinds of hiring discrimination are illegal for the same reason.

Green then turns to spousal benefits, which she cites as a “trickier” issue than housing discrimination because of the Hobby Lobby decision, which she chides the ACLU for using as a “symbolic political” reason to pull their support from Religious Freedom Restoration Acts. As Green notes, the same argument made in Hobby Lobby — that a sincerely held religious belief can exempt a business from federal benefit requirements they disagree with — can be extended to legislation such as the Family Medical Leave Act to refuse the extension of employer benefits to same-sex spouses.

This, of course, accepts the premise that Hobby Lobby was correctly decided. It wasn’t. The legal arguments as to why are broken down here, but more generally the idea that religious employers are endorsing sin when they engage in the secular acts of buying a certain health insurance plan or providing a set of benefits to certain employees is a stretch at best. To mandate that religious employers provide the same secular benefits as all other employers isn’t discrimination; again, it’s the elimination of privilege.

After outlining LGBT rights’ incompatibility with religious employer privilege, Green then gives a nod to the dreaded bakers/florists/photographers caucus. Since we haven’t heard enough about cakes. Green trots out the plight of the religious shopkeeper, highlighting the infamous and widely distorted plight of Sweet Cakes bakery in Oregon, which was fined $135,000 when it refused to bake a cake for a lesbian couple. But to frame the Sweet Cakes case as a juxtaposition of LGBT rights and religious liberty, as Green does, says as much about Green’s beliefs as it does those of the religious shopkeeper. It assumes that beliefs concerning LGBT people are somehow different from beliefs concerning women, or racial or religious minorities; she certainly wouldn’t frame a religious shop’s decision to refuse service to a woman, racial minority or member of another religion in the same way, even though those objections arguably carry far greater theological justification.

Next, Green warns that LGBT rights could infringe on religious adoption agencies’ ability to refuse adoption services to same-sex couples. As if that would be a bad thing. The question at hand, as she correctly notes, is not the sexual orientation of the couples in question, but rather their status as, well, a married couple. If the state recognizes that two people are married, a religious organization doesn’t get to arbitrarily decide that they are less-married than another couple. And again, to argue that a same-sex couple is unfit to adopt by dint of their same-sex relationship would make as much sense as arguing that an interracial couple is unfit to adopt by dint of their multi-racial relationship.

But let’s say Green grants that none of the above concerns are valid, what about conscientious objectors in government agencies, who don’t want to issue marriage licenses to same-sex couples because it amounts to participation in sin? That’s the next question Green takes up, recounting the ordeal Rowan County, Kentucky Clerk Kim Davis is currently going through due to her refusal to issue a marriage license to a same-sex couple, citing religious objections.

The answer, of course, is simple: quit. Pack up your office and quit. If you work for the government, and the government engages in secular activities that cut against what you would otherwise practice in private, and you really can’t handle having to leave your religion at home, then quit. No one would call it “discrimination” if a government worker got fired over a refusal to properly administer a local property tax, even if their religion called for an alternate form of taxation. Government officials refusing to execute the laws of the government is the definition of violating the Separation of Church and State. To legitimize the practice in an article about so-called discrimination against religious people is to set up a ridiculous premise in which the government can — nay, is obligated to — let religious employees act as theocrats instead of bureaucrats.

Finally, Green outlines concerns that religious organizations — particularly schools and universities — have in light of these newly established rights and protections for LGBT people:

Some leaders at Christian schools, including many that identify as evangelical,fear they may be stripped of their tax-exempt status, lose their access to federal funding, or face other problems because of their policies on homosexuality.

As well they should! The case for religious organizations having tax-exempt status to begin with is astonishingly weak. It is only weakened further by their insistence on refusing to adhere to public standards concerning education, hiring and morality more generally.

This isn’t to say that religious people and organizations don’t have a right to hate gay people. They do. But this is to say that that right is limited to the private sphere. In places of public accommodation, or when public funds are at stake, or when secular benefits are in question, God’s law doesn’t matter one bit.

Or, in tweet form:

At the end of the day, religious concerns over religious freedom in the wake of advances in LGBT rights have nothing to do with small-r religion. They are invariably Christian concerns over the weakening of their hegemonic grip on American private and public life. That’s the opposite of religious liberty, and it’s high time it stopped being framed as such.


Jon Green graduated from Kenyon College with a B.A. in Political Science and high honors in Political Cognition. He worked as a field organizer for Congressman Tom Perriello in 2010 and a Regional Field Director for President Obama's re-election campaign in 2012. Jon writes on a number of topics, but pays especially close attention to elections, religion and political cognition. Follow him on Twitter at @_Jon_Green, and on Google+. .

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