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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  • markwaynestone

    You mean muslims…

  • just_jim

    “Discrimination” is the tool to criminalize Bigots

    FIFY

  • Gigi

    Thank you for pointing that out as it’s a very important point. The Kleins, while on their Persecution Tour, have been making out that they were the only ones who received death threats. They’re not. Had they not doxxed the lesbian couple, printing their names and address on their facebook page, this story wouldn’t have gotten the amount of press that it did.

  • Gigi

    I worked as a wedding photographer while I was at uni. I wasn’t “participating in” or “approving of” the marriages (truth: I didn’t even like some of them), I was doing a job.

  • Gigi

    Good point.

  • wmforr

    I think the Catholic church got over in big time, once they realized that they could be making billions in interest with all their holdings–and that’s much more profitable than feeding the poor.

  • wmforr

    Again… “Christianists” and I’d say “would usher (if they could)”. Don’t forget, there is a majority of sane people in the country. For now.

  • wmforr

    And what about that Jesus character, who ate with Publicans and sinners. He’s going straight to Hell.

  • wmforr

    “The freedoms they are talking about are about reasserting special privileges and deference for [their particular brand of] Christians.”

    There, I fixed it. Before the Supreme Court ruling, I didn’t see many of them saying the government should respect the freedom of religion of ministers who did perform sames-sex marriages by recognizing those marriages.

    No, the First Amendment means only that their own dogma should rule the land.

  • NWaff

    “Discrimination” is the tool to criminalize Christians

  • NWaff

    Love how ““injurious to others” always goes only one way.

  • Hue-Man

    Along the same vein, when should religious doctrine be protected when religion takes over a secular function? The First Church of Burger Scientology opens a hamburger restaurant (“Holy Hamburgers”) and requires that all employees be virgins and that they sign a pledge to follow every minute detail of the church’s doctrine. Should Holy Hamburgers be entitled to discriminate on the same basis as its founding church?

    If your answer is no, then why should christianists be allowed to discriminate against large segments of the population when it comes to their private schools? Here’s a link to the covenant that ALL Trinity Western University (“Liberty University North”) students and staff must sign and follow with the threat of expulsion or job termination. https://twu.ca/studenthandbook/university-policies/community-covenant-agreement.html

    Specifically: “In keeping with biblical and TWU ideals, community members voluntarily abstain from the following actions:
    .
    sexual intimacy that violates the sacredness of marriage between a man and a woman”

    The proposed TWU Law School lost its case in the Ontario courts and Law Societies in various provinces but TWU continues to be allowed to write whatever discriminatory nonsense it wants into its Covenant. How is this different from Holy Hamburgers?

  • 2karmanot

    Palm to head Oyi

  • 2karmanot

    Excellent

  • 2karmanot

    Well done Jon!

  • JaneE

    They were basically forced to by the medieval Christian governments by being barred from just about any other means of supporting themselves. There were ( and still are in Muslim finance) ways to get around the prohibition on interest, but it is really difficult if you are not allowed to buy and sell, or own land, or be a member of a trade, or profession, or leave a specific area, etc.

  • 2patricius2

    Excellent critique, Jon.

  • therling

    Team Jesus already has an answer to why there’s no mention of “concerns of any religious group other than conservative Christians.” It’s because they believe they being singled out for “persecution,” and somehow that it has something to do with attacking the belief that our country is a “Christian nation.” If you point out that there has, say, never been a non-Christian president, they’ll tell you how Obama is a “Muslin.”

  • emjayay

    Oh, kind of like what I just posted above 14 hours later! But how did Jews decide to dump the restriction first? Really, I don’t know.

  • emjayay

    Seems to me they are about the same as Catholics believed a thousand years ago. Hence Jewish bankers. Eventually obviously Catholics got over it. Muslims get around it with various sorts of shell games, just like Orthodox Jews get to cook on the Sabbath by keeping the slow cooker and hot plate on all day and about a hundred other ways to adhere to the letter of the law while violating the intent, like elevators that stop at every floor without anyone pushing any buttons.

  • ComradeRutherford

    You mean, this:

  • ComradeRutherford

    “special privileges and deference for Christians.”

    And not even ALL Christians. Just a few, extremist-far-right sects.

  • kuvasz

    “Green warns that LGBT rights could infringe on religious adoption agencies’ ability to refuse adoption services to same-sex couples.”

    However:

    “A recent ruling from the Supreme Court may suggest otherwise. In Walker v. Texas Division, Sons of Confederate Veterans, the Court found that Texas was not required to issue a license plate that incorporated the Confederate battle flag. Though the government cannot restrict an individual’s speech, it can decide what it wants to say in its own voice.”

    http://thinkprogress.org/lgbt/2015/07/27/3684645/juvenile-minister-homosexuality-sinful/

    Since the government cannot discriminate neither can those organizations that do government delegated duties, and those agencies are almost entirely government funded, per child.

  • Another one of Jesus’ loving followers?

  • Diaris

    Fck you, queen. You’ll die of AIDS probably.

  • Gerald Moore

    Christians/Republicans use the term “religious freedom.” They should always put it in quotes because when they refer to it, they are referring to religious privilege and the power to discriminate, to exorcise their bigotry. They are not talking about actual religious freedom for all.

    The freedoms they are talking about are about reasserting special privileges and deference for Christians. They want their religious preferences to count for more than the religious freedom and equality of minorities. They insist that their beliefs should be accorded a privileged status by government. They have no respect for the Constitution’s first amendment because it was written to protect from the tyranny of the majority. They are the majority and desire to be tyrannical as possible.

  • JaneE

    Originally all the Abrahamic religions did, but the Muslims are the only ones who still try to structure their financial dealings to avoid it. Not that they don’t accomplish the same thing anyway – making money from money.

  • smendler

    Sometimes I suspect that the anti-usury provisions of Islam are what all the fuss is REALLY about.

  • smendler

    Religious freedom is freedom to BELIEVE what you want to BELIEVE. It is not the freedom to DO whatever you want to DO.

  • nicho

    I was a clerk in Family Law at the local court. I filled out and filed paperwork for divorces, domestic abuse cases, child custody. That didn’t mean that I “approved” of any of that or that I was a “participant.” I was just filling out paperwork. These clerks who think they are a “participant” in a wedding they issue a license for are idiots (as well as bigots). If you buy their fatally flawed line of reasoning, then a clerk who issues a firearms permit is a “participant” in whatever the gun owner does with the weapon, even murder.

  • nicho

    Actually, Jews and so-called bible-believing Christians are forbidden to charge interest also.

  • Mike_in_the_Tundra

    This is where I differentiate betweens Christians and Christianists. The Bible (New Testament wise) warns against judging others. Christianists are very judgmental, although they think they are not.

  • For Evangelical Christians, religious freedom must include the ability to suppress the rights of anyone who disagrees with them. This is why they fight against multicultural curriculum. They will not tolerate other religious views or those with no religion at all being their equals. It’s not enough for them to be free to worship as they choose. They must also be able to deny rights to people they don’t like because Jesus.

  • Mike_in_the_Tundra

    You need to follow your own link. The damages were awarded for distress caused by refusing to bake the cake. Their was a specific statement that it was just for the cake mess. I think the two women have a good case for a civil suit, when you consider they had to move.

  • Max_1

    Christians in America will usher in Sharia styled laws…

  • Indigo

    The freedom to practice a religion does not include the freedom to impose that religion on others. the shoe on the foot and see how the religionists squeal. It’s high time protecting religious freedom had some laws to enforce that point. Attempting to impose a religion on someone else should be a felony.

  • jodi.donne

    ====

  • PattyJM

    Jon Green, you have made one mistake here when you said that Sweet Cakes By Melissa was fined $135,000 when it refused to bake a cake for a lesbian couple. The fine was because they published the lesbian couple’s names and address on their website. That endangered the physical and emotional safety of the couple.

    The fine was compensation for the damages they caused to the two women.

  • ‘Team Jesus’ is a good distinction to make, because really the only ‘religious freedom’ being promoted by the conservative Christian fundamentalists is their desire to discriminate at will and often hypocritically and inconsistently. The county clerks who don’t want to issue a marriage license to gay or lesbian couples apparently never had any problem issuing them to people who’d been divorced previously, else we’d have heard about it.

    Moreover, there was nary a peep from the conservative Christianists when other mainstream religions were performing solemnization ceremonies for their gay and lesbian congregants — the Unitarians, the United Church of Christ, conservative and reformed Jews, Presbyterians and so on — but those unions were not accorded secular legal recognition.

    There’s also been a distortion with respect to the whole ‘conscientious objector’ angle. The idea there was the government was going to draft you into service, whether you wanted to or not. You had the right to say, “Okay, but I don’t want to carry a gun because killing is against my beliefs.” Well, you didn’t get to go through Basic, join a squad, and go on missions with them sans rifle. They gave you an entirely different job. And you got the different job only because service was compulsory.

    There’s nothing compulsory about being a county clerk or designated secular government officiant. That’s your job, but if there are duties involved with that job you don’t feel like doing, whatever your reasons, you need to get another job.

    To take your list up there, Jon and expand upon it: No one would call it religious discrimination if you were fired for refusing to issue a marriage license to an interracial couple. Or because the applicants are atheists. Or even if you believed the divorced should not remarry, which happens to be a core Catholic teaching by the way.

    Quite frankly, I never thought the wall between Church and State should have been so porous as to allow federal and state funding of religious schools or adoption agencies or hospitals.

  • BigHobbit

    You have the right to practice your religion. You do NOT have the right to practice your religion on others.

    The only religious “freedom” that is lost is the religious freedom to have gays and lesbians be treated as unworthy of equality. Not a religious right that anyone really ever had.

  • Bill_Perdue

    Religious cults like the roman cult, protestant cults, islamist and judaist cults do not have the right to promote discrimination, harassment and violence against LGBT folks. They do not have the right to torture and sexually abuse children, a common complaint, whether in clt schools, rectories or in ‘reeducation’ camps.

    When they commit these crimes all of the assets of the cult should be confiscated to compensate their victims and to help educate people about HIV. Those individuals who commit these crimes should be prosecuted and jailed, and in the case of foreign born priests, deported.

    They should be taxed just like Disney and other producers of fantasies.

    When the pope visits the US he should be arrested and charged with crimes against humanity for his support for the murder campaigns against leftists and youth in Argentina in the 1970’s. But the government that is illegally murdering Arab american citizens in racist drone attacks probably won’t arrest the pope for his crimes abetting the same kind of murders.

    Religion is the enemy.

  • JaneE

    Let’s staff all the banks with Muslims, and eliminate loans with interest.

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