The argument that gay rights infringe on religious liberty assumes a fundamental antagonism between religion and homosexuality. This is not true. This myth also misunderstands what religious liberty— also called religious freedom—requires in practice. Religious liberty in the United States means that citizens can hold and express differing beliefs. It also means that they have the freedom to practice those beliefs. Because religious liberty creates room for many diverse moral or ethical perspectives, it would be a fantasy to think that as a nation we could reconcile all of our often-contradictory political differences around religion and sexuality on issues such as the moral status of homosexuality. Such a fantasy gives us an inaccurate picture of what democracy and religious freedom would be. The purpose of democracy is to allow, even foster, disagreement.
Religious freedom—enshrined in the First Amendment to the Constitution—is one of the most important principles of American democracy. Religious freedom in the United States has two components: disestablishment, also called church-state separation, and free exercise. Separation of church and state means that no religious belief can be written into the law. This is the necessary precondition for free exercise, which is also called the freedom to practice. In theory, free exercise gives citizens the right to practice any form of religion, as well as the right not to be religious at all.
In real life, things are more complicated. Christianity is the dominant religion in the United States, and over the centuries religious freedom has most often meant the freedom to be Christian in a particular way. When people argue that gay rights infringe on religious liberty, they invariably mean that civil rights for LGBT people infringe on the free exercise rights of conservative religious opponents of gay rights.
This myth addresses the relationship—at the crux of national and legal arguments—between religious liberty and something called “gay rights.” (So far, conservative religious groups have not paid a lot of attention to transgender issues; they no doubt eventually will.) “Gay rights” is a misleading term; it suggests that LGB people are asking for “special rights” or “special protections” rather than equality under the law. This is not true, but it is an argument with deep emotional appeal that feels true to many opponents of LGB equality. Falsely naming equal rights for LGB people “special rights” also helps turn the Christian majority into a persecuted minority (see myth 19, “Antidiscrimination Laws in the United States Protect LGBT People”).
The United States Conference of Catholic Bishops echoed this sentiment of a persecuted Christian minority in their 2012 “Fortnight for Freedom” campaign. The bishops were concerned that some laws and public policies—same-sex marriage, adoption rights for gay and lesbian couples, abortion, and contraceptive coverage—infringe on Catholics’ rights of conscience. Conservative think tanks, such as the Heritage Foundation and the Becket Fund for Religious Liberty, have also stated that antidiscrimination laws and same-sex marriage pose threats to religious liberty. Religious conservatives and even liberal legal scholars have been cataloguing legal collisions between “gay rights” and “religious liberty.” These cases will increase as same-sex marriage gains legal recognition in more states.1 These conflicts do not affect houses of worship, which are constitutionally protected by church-state separation, but are becoming more common in private businesses (wedding photographers, banquet halls, medical offices), religiously affiliated colleges and universities, and agencies such as private adoption services contracted by the state.
Recently Illinois, Massachusetts, and the District of Columbia ruled that Catholic Charities—in order to comply with antidiscrimination laws—had to give equal consideration to same-sex couples applying to be adoptive or foster parents. This was a major challenge; Catholic Charities of Boston had been offering adoption services for 103 years. Catholic leaders, faced with a choice between violating what they saw as Church teachings about homosexuality and abandoning their religious mission to care for needy children, ceased facilitating any adoptions. This regrettable outcome affected children and the dedicated caseworkers who worked for Catholic Charities (many of whom disagreed with the decision). Do state regulations barring discrimination against qualified lesbian and gay male applicants violate Catholic religious liberty? This very complicated issue presents an example of how social and legal commitments to civil rights can result in painful conflict.2
Catholic leaders, opponents of homosexuality, and even some legal scholars argue that Catholic Charities was being unfairly coerced by the state to suspend its religious principles. This would be a clear infringement of free exercise. Framing the issue this way, however, reduces the scope of religious liberty to free exercise only. It ignores the other vitally important component of religious freedom: separation of church and state.
It is important to distinguish between acts carried out by individuals and groups functioning as agents for the secular state, and those acts carried out by private religious or secular organizations. Catholic Charities is a private organization that was licensed by the state—and given public monies—to provide foster care and adoption services. As an agent of the state, it was subject to applicable antidiscrimination ordinances. In Massachusetts, state law bars adoption agencies from discriminating on the basis of “race, religion, cultural heritage, political beliefs, national origin, marital status, sexual orientation or disability.”3
Catholic Church leaders are free to believe that same-sex couples should not be allowed to adopt. They are free to argue that homosexuality is morally wrong. And they are completely free to engage in their religious mission of serving society’s neediest. However, a different picture emerges when we examine both aspects of religious freedom. Once Catholic Charities accepts licensure by the state and receives public monies to carry out the secular service of adoption and foster care placements, it is not permitted to enforce its sectarian viewpoint. That would violate the principle of disestablishment, because the state would be subsidizing a religious viewpoint.
Many conservatives view disestablishment as punitive to religion. They see it as forbidding religion to enter the public sphere. Ironically, the reality is that this separation of church and state profoundly provides the public context within which individuals and organizations can enact religious freedom. This context—the shared space of democratic social life—makes possible the flowering of diverse religious and nonreligious moral perspectives. In a society with multiple religions, one group’s religious practice may rub up against another’s. It is equally possible that religious freedom may come into conflict with other deeply held societal values, such as equality of treatment under the law. These conflicts may not have easy resolutions. If they end up in court, where one side wins and the other loses, the complexity of justice and fair treatment will be lost in the zero-sum battle of winner takes all.
Some legal scholars and policy experts have identified a “competition in rights” between LGB people seeking equality under the law and religious opponents of homosexual behavior. They believe that basic fairness requires some sort of legal “trade-off” or compromise—commonly called conscience clauses or religious exemptions—that would balance competing rights. Catholic Charities did seek a religious exemption before closing its adoption agencies. But—and this is important—it asked for this only where sexual orientation was concerned. In each instance, the state said no.
Despite these setbacks, proponents of religious exemptions have in fact been successful in shaping both public debates and public policies over “at-risk” religious liberty. As a result, there is currently great momentum for building a wide range of religious exemptions into same-sex marriage laws and LGBT civil rights laws. These debates and policy “solutions” are not new. A similar legal trade-off has been argued for—and actively endorsed by state legislatures, Congress, and federal agencies—to “balance” a woman’s constitutionally protected right to abortion against a health-care worker’s right to refuse to provide medical services that violate their conscience. Framing this quest for fairness as a matter of intractable divides and required trade-offs poses religious freedom and sexual freedom as intractable antagonists. This is a problem for social equality. It is also not true (see myth 10, “All Religions Condemn Homosexuality”).
Conscience clauses are fairly recent. The first federal conscience clause, the Church Amendment of 1973, was passed the same year that Roe v. Wade legalized abortions nationwide, and specifically focused on sterilization and abortion. By 1978, virtually every state had adopted some version of a conscience clause for health-care providers who objected to offering certain services on religious or moral grounds.
In debates over LGBT civil rights, religious exemptions have been written into state antidiscrimination statutes. They also are present in the yet-to-be passed, federal Employment Non-Discrimination Act. As written, the bill would prohibit employment discrimination on the basis of sexual orientation or gender identity, but includes an exemption for religious corporations, associations, educational institutions, or societies (see myth 19, “Antidiscrimination Laws in the United States Protect LGBT People”).
There are both narrower and broader versions of religious exemptions. The versions in force in the antidiscrimination laws in Massachusetts, Illinois, and Washington, DC, apply to religious organizations, but not to religiously affiliated organizations, privately owned businesses, or individuals. Conservative policy organizations are actively composing a much broader wish list of religious exemptions. They claim these are necessary to avoid the inevitable burdens antidiscrimination laws and same-sex marriage allegedly will impose on the religious freedom of groups and individuals who oppose homosexual behavior and “gay rights.” In 2012, when the Maryland legislature was debating a same-sex-marriage bill, a group of conservative legal scholars urged “exemptions that would have permitted individuals and small businesses, as well as religious organizations, to refuse to provide goods, services or benefits to facilitate or perpetuate any marriage if doing so would ‘violate their sincerely held religious beliefs.’”4 The Maryland General Assembly declined their advice. However, other state legislatures, such as New Hampshire’s, New York’s, and Connecticut’s, have enacted various forms of conscience clauses.
There are many problems with placing broad religious exemptions into LGBT antidiscrimination laws. Lawsuits are inevitable. These will place courts in the complicated position of distinguishing between a sincerely held religious belief, and an unreflective squeamishness or casual prejudice.5 Religious belief and social prejudice are not the same. They do, however, often reinforce each other. In addition, these broad religious exemptions from applicable civil rights laws may not be constitutional. Many legal scholars argue that privileging religious motives over other reasons for acting in particular ways constitutes a tacit endorsement of religion, in violation of the principle of disestablishment. Finally, these exemptions are not only unfair, they essentially do an end run around the thorny but necessary business of living side by side with people whose moral views and life practices are different from our own.
No religious group should be required to bless or sanctify a same-sex marriage if homosexuality is contrary to its values. This is a simple matter of religious liberty. The state should not, and constitutionally cannot, impose its own sexual orthodoxy on a religious community. However, this is very different from whether a religious organization should be permitted to discriminate against LGBT employees in providing secular benefits, such as health care or equal access to residential housing, benefits that often come through employment or through enrollment in a university.
There are parallels here with an earlier US history of racial discrimination, particularly when biblical justifications were offered for slavery and, later, for a complex legal framework of racial discrimination. Some organizations have even argued for religious exemptions for racial discrimination. The most famous example involved Bob Jones University, a private fundamentalist Christian school that, beginning in the 1950s, banned interracial dating and threatened students who disobeyed with expulsion. The university’s policy eventually came into conflict with both changing social norms about racial equality and with new state and federal laws banning racial discrimination. Nonetheless, Bob Jones refused to change its interracial dating ban on the grounds that it was a religious tenet. After the IRS removed the university’s tax-exempt status, the school sued. The controversy reached the Supreme Court in the 1983 case Bob Jones v. US. An 8–1 majority upheld the removal of tax-exempt status, arguing that the government’s interest in “eradicating racial discrimination in education . . . substantially outweighs whatever burden denial of tax benefits places on [the University’s] exercise of their religious beliefs.”6 The court concluded that religious beliefs are not a blank check for racially discriminatory treatment.
Yet, state and federal courts, as well as legislatures, continue to exempt religious bodies from laws that deal with gender- and sexuality-based discrimination. Legal scholar Martha Minow observes, “The struggles over exemptions from civil rights laws [around race] for religious groups reflect historic political battles, inspired but not dictated by ideals and hammered out through shifts in power from popular mobilization and changes of heart.”7 The Bob Jones decision thus reflected a much longer history of social and legal activism. This activism so profoundly transformed public attitudes about racial discrimination that religious objectors to racial equality were granted almost no credence.
Minow believes that social transformations outside the courts will influence courts to find that religious exemptions in cases of gender-based or sexuality rights are as constitutionally impermissible as racial discrimination. We are not there yet. Legal commentators from across the political spectrum suggest that religious accommodations are required, in the meantime, to guard against backlash. It is clear that we do need arguments and activism outside the narrow parameters of the law. Nevertheless, legal and policy arguments over the need to “balance” religious liberty and LGBT equality ignore that LGBT rights are a matter of religious freedom, too. This is all the more reason vigorously and expansively to debate these issues.
Religious freedom, far from being the opposite of “gay rights,” forms a necessary ground for LGBT equality and freedom. How people arrange their intimate relations and their gender identities involves important moral decision-making. This is quite different from a moral consensus, where a mythical “we” have to agree on the acceptable ways very personal sexual and gender choices get lived. As a society, we should be expanding possibilities for religious liberty. We can do this by broadening the scope of what counts as the good life and who counts as worthy of flourishing. In doing this, a context may emerge for changes of heart about what it means to live in a democracy and bump up against people different from ourselves.