The Religious Freedom To Discriminate
An overbroad, unnecessary conception of religious freedom threatens our civil rights laws
One of the most amazing aspects of the Civil Rights movement of the 1950’s and 1960’s is something that DIDN’T occur. Many of the whites who supported racial segregation held religious beliefs that God mandated it. The white Southern Baptists, one of the largest denominations in the American South and a group that had roots in antebellum slavery, took that position. The Mormons taught it too. And various smaller white religious groups espoused the position as well.
And yet, while freedom of association arguments (such as those made by the law professor Herb Wechsler and the presidential candidate Barry Goldwater) were made against integration, for the most part, religious freedom arguments gained little traction. Nobody seemed to believe that, e.g., forcing a shopkeeper to sell a product to a Black person or forcing an innkeeper to rent to an interracial couple violated anyone’s right to practice their religion. Not even libertarians argued that.
And as a result, there really weren’t many significant challenges to laws prohibiting race discrimination on the grounds of religious freedom. Indeed, what actually happened is that religions changed their positions- for instance, both the Southern Baptists and the LDS church repudiated their prior positions and espoused integration and formal racial equality. Religious freedom is protected because some small sect that still believes that God mandates segregation can segregate its pews or refuse to perform interracial marriages, but the larger acceptance of the value of integration has not infringed on anyone’s religious beliefs.
Contrast this with what has happened since the rise of the gay rights movement. From the outset, religious claims have been paramount. Gay marriage, we were told, threatens the beliefs of religious Americans that marriage is a sacrament handed down from God and reserved for opposite sex couples, as well as their beliefs that homosexual conduct is sinful. Hate crimes laws could supposedly make it illegal to believe that homosexuality is immoral (this isn’t, in fact, true, but that argument is pitched against inclusion of gays and lesbians in hate crimes laws all the time). Allowing gay people equal adoption rights threatens Catholic and Christian adoption agencies who believe as a matter of conscience that they should only place children with couples whom God would approve of. And, of course, you have the wedding cake bakeries, and the florists, and the photographers, and everyone else who is now claiming they are formally cooperating with evil if they are required to serve all comers.
On one level, part of this is obvious. In the early 2000’s, lost in the mists of time, I once published a piece called “Why is Racism Bad But Sexism OK?”, about the fact that many forms of discrimination that were (correctly) verboten when directed against racial minorities were considered matters of conscience when directed against women. But with respect to LGBT people, the point is even more acute. There’s a reason why we call prejudice against gays “homophobia”. Many conservative straight people, especially straight men, are extremely fearful of gays and lesbians. They wish they did not exist, or at least that they were closeted like they were in the “good old days”. Whereas even the most racist white Southerner could understand that Black people were going to exist and were going to be visible, even if he did not want to interact with them as equals, homophobic religious conservatives harbor the fantasy that gays and lesbians might not exist at all or at least not exist in any sort of polite society.
This was why, for instance, conservatives hung on to sodomy laws for so long, even if they were never enforced. They wanted them on the books, putting the fear of God into gay people who might want to go public. Major conservative organizations all lined up with the state in Lawrence v. Texas. The point wasn’t to throw all the gays in prison, but it was definitely to leave prison out there hanging like a Sword of Damocles over the existence of gay men.
And religion, specifically, is a time-honored mechanism used by conservatives to attempt to control and suppress homosexuality. “Conversion therapy” abounds, where preachers promise to “pray away the gay”. The Catholic Church has certainly rarely discouraged closeted gay men from entering the priesthood and living a celibate life. Just the role of conservative churches in promoting early marriage and childbearing is in part about this- can you imagine one of the Duggar clan coming out as a gay teenager?
Put this all together and you have an assault on gay rights on the basis of religion, an assault that never really happened with respect to Black civil rights. Now, to be sure, some accommodations are possible. I dislike the bakers who turn gay couples away, but it’s also true that in most places, it should be possible to allow someone to run a conservative Christian bakery that doesn’t require them to apply their art to the baking of cakes for same-sex weddings. That would be a lesser world, a world which labels gay couples as unequal and inconveniences them for little reason, but it would also be a potentially manageable compromise if it stopped there and with similar businesses.
But of course it won’t stop. Right now, Fulton v. City of Philadelphia, involving a Catholic adoption agency’s religious freedom claim for an exemption from discrimination rules, is before the Supreme Court. And there the stakes are much higher- the agency is asking for the right to deny a child a loving two parent home because the parents were assigned the same sex at birth. Kids’ lives will actually be seriously harmed by a broad ruling in favor of the church.
And from there, where does it stop? Why can’t a hotel refuse to rent rooms to same-sex couples? After all, providing such couples with a bed in which they can break God’s law surely formally cooperates with evil under some religious teachings. Why can’t a mattress store refuse to sell a mattress to such a couple for the same reason?
And don’t think racists aren’t waiting in the wings. Religious challenges to anti-discrimination laws were hopeless way back when, but perhaps they may not be in this new environment. Why won’t the conservative white Christian owner of hotel in the South provide a test case, refusing to rent to interracial couples? Or perhaps even a Black hotel owner opposed to such relationship might do it (there’s still significant opposition to interracial relationships in that community), making the case even more attractive to conservative judges who want to whittle away at our civil rights laws.
The bottom line is this is a ticking time bomb waiting to go off. We made the right decision in the 1960’s- people have every right to segregate and wall off their churches and believe in discriminatory doctrines, but when you operate businesses or perform important functions such as adopting out children, you can be required to serve all comers. If we lose sight of that principle, we could not only empower homophobes and transphobes but even let Jim Crow in the back door.