What “religious liberty” bills have in common with voter ID laws

Georgia legislators are considering a slate of bills aimed to bridge the contrived divide between religious freedom and LGBT equality.

There’s a pastor protection bill that would provide the same protections that pastors already enjoy under the First Amendment. There’s another that would force the government to provide a compelling interest when religious citizens feel that their ability to practice their beliefs is being infringed by the State, although that bill’s sponsors have specifically said that it would not protect a business who wanted to refuse service to a same-sex couple. That’s covered by a third bill, which would allow businesses to refuse service for “matrimonial ceremonies” that involve same-sex couples if they have religious objections to those ceremonies taking place.

Guess which one conservatives in Georgia are rallying behind? In the name of compromise, no less?

Writing in the Atlanta Journal-Constitution, conservative columnist Kyle Wingfield argued today that there is room for both sides of this religious freedom/LGBT equality debate to get something that they want and accommodate each other:

What the LGBT side needs is freedom from discrimination. What the religious-liberty side needs is freedom of conscience for those who do not wish to be personally involved in same-sex marriages. The overlap of these interests is narrower than the rhetoric might indicate. It calls for a very narrow, specific and nuanced solution.

There are a few problems here. First, the “freedom of conscience” Wingfield is describing is the freedom to discriminate against LGBT couples. His “middle ground” explicitly rules out full equality for LGBT couples, which makes said middle ground a non-starter. But more importantly, it exposes a major problem in the logic of supposedly narrow compromises between conservative Christians and the LGBT people whom they wish to discriminate against: “narrow, specific and nuanced” is another way of saying “explicitly discriminatory.”

I touched on this in an earlier post on Georgia’s “matrimonial ceremonies” bill. When bills are written to protect “religious freedom” in a general sense, you can at least pretend that they are based on a legitimate concern for the protection of everyone’s religious beliefs (or lack thereof):

Religion and LGBT equality, via Wikimedia Commons

Religion and LGBT equality, via Wikimedia Commons

Religious freedom bills that just so happen to allow businesses to refuse service to same-sex couples at least carry the stated purpose of protecting, well, religious freedom. Anti-gay florists, bakers and photographers’ right to discriminate against same-sex couples is clearly the motivating factor behind these bills, but at least they theoretically apply to other situations in which religious citizens’ interests have “reasonable” conflicts with secular government regulations.

We’ve heard this argument before, coming from conservatives defending voter ID laws and other ballot access restrictions in court. We are told that such laws pass legal scrutiny because they don’t explicitly discriminate on the basis of race, gender, religion or other protected class of citizen. Even if these laws just so happen to have discriminatory effects, unless you can prove discriminatory intent they’re perfectly legal (though that may change soon). Much in the same way, even if the upshot of the federal First Amendment Defense Act or state-level Religious Freedom Restoration Acts would mostly be confined to legally-protected discrimination against LGBT couples and employees, these laws don’t explicitly say that it’s their stated goal. They could theoretically apply to other forms of religious conscience conflicting with government interests. In this respect, they are “gay-neutral” the same way that voter ID laws are “race-neutral.”

But as soon as you pare down your “compromise” legislation to the point at which it no longer applies to general religious conscience, and instead only applies to one specific religious objection, you can no longer claim that your bill is “gay-neutral.” At that point, you aren’t fighting for generalized religious freedom; you’re just fighting for a specific privilege to discriminate. In this sense, limiting protections for religious conscience to businesses that want to refuse service to same-sex couples is like passing a photo ID law and then closing the drivers license bureaus in majority-minority counties. Or like passing a literacy test for voting and then only giving it to black citizens. It takes what started as value-neutral cover for a policy that carries discriminatory effects and makes the discriminatory intent explicit.

Why would anyone agree to a “compromise” like that?


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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