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No, Private Discrimination Against Gays Does Not Count as “Religious Liberty”

As nationwide same-sex marriage becomes increasingly inevitable, anti-gay activists are turning to the next frontier of the gay rights movement: private discrimination. Today, the Huffington Post tracks a few seemingly thorny cases that pit individual religious liberty—that is to say, the liberty to discriminate—against anti-discrimination laws. All these cases follow the same pattern: A private business refuses to render services to a gay couple or group, then finds itself slapped with a lawsuit. The business pleads religious liberty. The Christian right is outraged.

As the Huffington Post article suggests, ending private discrimination against gays isn’t as much of a clear-cut, slam-dunk issue as marriage equality. When a state allows gay people to get married, nobody really loses (unless they’re truly crazy). But when a state bans private discrimination against gay people, there’s always a losing side—the homophobes. And even if these homophobes’ cause is bigoted, their seemingly principled stand in the name of religious liberty can evoke more sympathy than NOM’s shrill shrieks.

Still, it’s important to remember a fundamental point about the purported clash between the right to discriminate and the right to be free from discrimination: In the private sector, neither is mandated by the Constitution. The Fifth and 14th Amendments’ guarantee of equal liberty is only binding on the state and state employees; anyone else is, constitutionally speaking, entirely free to discriminate. Conversely, the First Amendment’s commitment to free exercise of religion cannot be invoked by a private business to skirt compliance with an otherwise valid state law. (Expressly religious institutions like churches have heightened protections, of course.)

The trouble arises, then, only when legislatures enter the mix. In recent years, 21 states and the District of Columbia have enacted laws proscribing private discrimination against gay people. These laws are fairly simple, generally mirroring those that ban discrimination against racial minorities and carving out exceptions for religious groups and institutions. But if the letter of anti-discrimination laws is straightforward, its application is anything but. Consider a recent case in New Mexico, where a Christian photographer refused to take photographs at a gay wedding, citing her personal distaste for same-sex marriage. Although 85 percent of Americans support her right to refuse, the New Mexico Supreme Court held unanimously that, as a private employer, the photographer must photograph both gay and straight weddings under the state’s Human Rights Act.

Legally, this ruling was correct; the photographer offered her skills solely as a business service, not as a form of personal expression. It’s the equivalent of a taxi refusing to pick up a gay couple, or a restaurant refusing to serve a gay family. Yet it’s easy to sympathize with conservatives who argue that the photographer’s religious liberty and free speech rights were violated. Isn’t the basis of liberty the freedom to value one’s own beliefs over those endorsed by the state? And isn’t it quintessentially American for private businesses to choose their own customers?

Actually, it’s not: Imagine if the photographer had refused to photograph an interracial wedding rather than a gay one. Her behavior would be so clearly reprehensible that it’s hard to imagine any American defending it. It wasn’t always that way. For centuries, racists cited the exact same argument, religious freedom, to discriminate against black people, since the Bible arguably condones slavery and thus can be read to cast racial minorities in an inferior light. Today that argument sounds like nonsense, and it was rendered legally void with the passage of the 1964 Civil Rights Act. The Christian argument for anti-gay discrimination will sound similarly ludicrous in just a few decades.

(more at link)

by Anonymousreply 1812/23/2013

R1, how do you not agree with the article in the OP? I'm curious, since you typed that, and then went on to agree with it...

by Anonymousreply 209/09/2013

Ollie's BBQ.

by Anonymousreply 709/10/2013

ENDA Endangers the Rights of Religious Employers Forcing people to employ members of the LGBT community could create more problems than it solves

By Trevor Burrus Lesbian, gay, bisexual and transgender rights have made incredible progress in a short time. One significant step came in June, when the U.S. Supreme Court ruled that Section 3 of the Defense of Marriage Act, which defined marriage as between a man and a woman for the purposes of federal law, violated the equal protection component of the Fifth Amendment.

The Cato Institute supported the DOMA decision, and filed briefs on behalf of Edith Windsor, the named plaintiff. In fact, the libertarians at Cato have supported gay marriage longer than nearly any institution in Washington.

But the Employment Non-Discrimination Act is different. Eighty-eight percent of Fortune 500 companies already voluntarily prohibit sexual orientation discrimination, so ENDA would, at best, be tacked on to a social movement that has done more to advance the LGBT community than any law could have. At worst, ENDA would open the door to litigation pitting the rights of religious employers and employees against LGBT rights. It makes little sense to expand some rights by curtailing others.

[Read the Human Rights Campaign's Allison Herwitt on why the Employment Non-Discrination Act should be passed.]

Free markets have already gone a long way in helping eliminate discrimination. If business owners discriminate, then they will find it difficult to compete against those who don’t. Imagine two job candidates, one gay and one straight. The gay candidate is the most qualified, but the employer’s distaste for homosexuality means he hires the straight candidate. His more gay-friendly competitor hires the gay candidate, and his business does better. Public outcry is another way free markets have helped eliminate discrimination. Take, for example, the public response against Chick-fil-A for opposing gay marriage: Boycotts were encouraged, and some businesses even severed ties with the company.

This was an acceptable free-market response, but forcing people to employ members of the LGBT community could create more problems than it solves. Unlike discrimination based on race, LGBT discrimination is closely tied to religious belief. While we can condemn those who don’t want to associate with the LGBT community, we have no right to make them act against their deeply held religious convictions. The Constitution protects encroachment on all religious beliefs, not just progressive ones.

[See a collection of political cartoons on the economy.]

If courts interpret ENDA like other employment discrimination laws, it will be read to prohibit a "hostile workplace," which usually comes in the form of statements overheard between employees. For instance, if an LGBT employee overhears co-workers discussing how they believe homosexuality is a sin, then it could be considered an ENDA violation for which the employer is liable. A probable result of this would be employer-instituted policies prohibiting all discussion that could possibly offend anyone; thus making the federal government a censor by proxy.

ENDA does include religious exceptions, but they just allow the government to decide which employers are "actually" religious, such as churches and Sunday schools, and which are not. ENDA also makes the question "who is a religious employee?" a legal issue. Under ENDA, a church can discriminate based on sexual orientation in jobs that are purely religious, such as a minister, but not, say, for a janitor. But what about parochial school teachers? Are they religious employees?

These are the kinds of problems that will come out of ENDA. No wonder people of faith feel increasingly embattled. I am not religious, but, as the saying goes, I will defend to the death the right to religious conscience.

by Anonymousreply 1112/23/2013

It would be nice if those who pretend that their religious convictions prevent them from providing any kind of support for gay rights were forced to justify it.

Jesus - the deity they profess to follow - would never have been fine with sacking a perfectly decent employee purely because he or she was gay.

Religion has been used constantly to justify very human prejudices.

by Anonymousreply 1212/23/2013

[quote]Unlike discrimination based on race, LGBT discrimination is closely tied to religious belief.

It once was, not so long ago.

by Anonymousreply 1312/23/2013

Ding, ding, ding, r12. If you confront these people with that truth, they get violently angry.

by Anonymousreply 1412/23/2013

Trevor is a clear idiot. It is still routine in much of the country for people to be fired for being gay.

by Anonymousreply 1512/23/2013

Trevor obviously known no black people, who could school him on the fact that white fear of lawsuits and defensiveness around "racism" has not been a negative thing for them.

by Anonymousreply 1612/23/2013

Nor has there been a single recorded case of a company moving its headquarters out of an area that offers equal rights for gays to one that doesn't because of hysterical fear of lawsuits.

by Anonymousreply 1712/23/2013

The US Supreme Court seems to be poised to decide just how expansive religious liberty is. It will have implications on the enforcement of all general applicability laws, including anti-discrimination statutes. There is some indication that the Court could say that corporations and businesses should be exempt from laws that contradict their religious beliefs in many circumstances.

by Anonymousreply 1812/23/2013
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