My Civil Rights Trump Your ‘Religious Liberty’
By Ashley Yang, Opinion Editor
Friday morning, five members of the Supreme Court ruled that the Fourteenth Amendment of the Constitution guarantees same-sex couples the right to marriage.
People cried in joy. They hugged their loved ones. They popped fireworks and flooded the streets of West Hollywood to mark this historic occasion.
But not everyone was happy. At the Family Research Council and the newsroom at Fox, old white men sat in huddles, fuming as they brainstormed ways to get America back onto the “righteous” path.
“What about the sincerely held religious beliefs of your friendly super-Christian neighborhood baker? Who’s going to protect his First Amendment right when he gets sued for refusing to bake a wedding cake for a gay couple?” asked the voice of Rick Perry with a Texas twang.
Indeed, the “gay wedding cake” example makes a regular appearance in anxious conservative discourse about same-sex marriage, and by extension equal treatment of openly non-heterosexual people in other contexts ranging from employment to accommodation to receiving services. Should Hobby Lobby, a “closely held corporation” be allowed to fire a gay employee? Is a religious innkeeper legally allowed to refuse to rent a room to a lesbian couple? Can a Christian college expel a queer student if his sexual orientation is found out?
Questions concerning government protection of religious exercise most often find legal backing in the Free Exercise Clause of the First Amendment as well as the federal Religious Freedom Restoration Act. The RFRA applies strict scrutiny, the highest standard to any federal law that burdens religious exercise, meaning that the law must further a “compelling” government interest and that there not be another way to further that interest that does not create a burden against religion. It formed the basis of the controversial decision in Burwell v. Hobby Lobby, in which the Court ruled that Hobby Lobby was entitled to a religious exemption to the Affordable Care Act’s contraception coverage mandate.
The first sentence of the First Amendment states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…”
A general consensus is in place that though the government cannot interfere with religious beliefs and opinions, it can regulate religious practices. Dissenting Justices Roberts, Alito, Thomas, and Scalia focused their concerns on three particular issues that fall under religious practice: gay adoption, the tax-exempt status of religious organizations that discriminate on the basis of sexual orientation; and the obligation of private churches and individuals to recognize and perform same-sex marriages.
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The third is decidedly the least ambiguous, from both a legal and a common sense standpoint. It is the worst-case scenario suggested by those who view any state intervention on behalf of the LGBT community as a direct assault upon the nation’s moral fortitude. Wallowing in their malaise, however, they fail to see that places of worship are not businesses or accommodations which serve the public, subject to the Civil Rights Act. A religious establishment is tantamount to a private membership club, whose activities are protected by the First Amendment freedom of association. Just like the government couldn’t force the Augusta National Golf Club to admit black people, it can’t require churches to accept gay parishioners, let alone marry them. Even the Family Research Council admits that the First Amendment “solidly protects” clergy members from government interference with their religious duties. Justice Anthony M. Kennedy’s majority opinion affirms these protections.
The government can, however, put pressure on religious organizations to align themselves with its social interests. One way it goes about doing that is the provision of tax-exempt status. The courts have ruled that religious institutions that discriminate based on race cannot remain tax-exempt, but this rule seems to stop short at discrimination against women and gay people. Remaining solidly in the gray area, however, are sectarian universities that receive federal funds but ban homosexuality in their student conduct codes.
Title IX actually permits this — it “explicitly provides an exemption for schools controlled by religious organizations to the extent that the institution asserts that Title IX’s application would not be consistent with the organization’s religious tenets.” Meaning that as long as the college can prove that its anti-LGBT stance is a “religious tenet,” it can legally discriminate with the blessing of taxpayer dollars.
This should no longer be so.
Bob Jones University v. United States already sent the right message. By ruling that a sectarian university cannot retain tax-exempt status as long as it banned interracial relationships, the Supreme Court established the government’s right to prioritize public order above the right to unfettered religious practice. If ending racial discrimination is a “compelling government interest,” then the majority decision in Obergefell v. Hodges certainly marks a new era in which eradicating discrimination based on sexual orientation and gender identity is just as compelling.
Religiously affiliated universities that continue to institutionalize homophobia must no longer receive tax exemptions, direct federal funding, or federal financial aid. These benefits directly enable the instruction of values contrary to our current understanding of equality and tolerance, putting “the imprimatur of the State itself on an exclusion that soon demeans or stigmatizes those whose own liberty is then denied.”
People who believe that homosexuality is wrong are entitled to their beliefs. They have the right to assert it publicly, to discuss it among their peers, to teach it to their children and to voice it from the pulpit. The First Amendment protects this right, but neither it nor federal laws obligate the government, financially or otherwise, to support the belief put forth when exercising it.
Furthermore, the Civil Rights Act of 1964 is due for a much-needed update. Its current text does not include sexual orientation or gender identity as protected classes, meaning the scenario of the gay couple who gets married in the morning and gets a pink slip from an anti-marriage equality employer in the afternoon could soon be a reality. If this level of Republican backlash against the Court’s decision is any indication, the narrative of discrimination against LGBTQ Americans will only escalate.
Neither the cake baker nor the innkeeper should be allowed to legally refuse service to a gay couple, no matter how “sincerely held” their anti-gay beliefs may be. The Hobby Lobby decision muddles what would otherwise be a straightforward principle — businesses which provide a service to the general public cannot selectively deny that service to people whose identity or personal choices they disagree with.
“Closely held corporations” like Hobby Lobby should not be able to discriminate in hiring practices either. The religiosity of its owners does not mean that Hobby Lobby is itself a religious organization. It is also a business, operating in a secular capacity and answerable to the government’s interest in perpetuating equality.
In a frenzy to shout “religious freedom” at the top of their lungs, conservative Americans have forgotten that public order is just as important as personal liberty. When their understanding of liberty threatens the civil rights of a million others, the state must correct the balance.
Reach Opinion Editor Ashley Yang here, or follow her on Twitter.
