This is the first of what I think will be three diaries that directly resulted from my experience at NN 14. Religious exemptions was identified as one of the five major post-marriage issues for the LGBT community at the LGBT Caucus, and it seemed to be the one on which I could do the most good. My mission for the foreseeable future is going to be finding every law that contains an exemption that goes beyond the one preserved by Executive Order 11478, the Bush formula
that allows religiously affiliated contractors to favor employees of a certain religion in making hiring decisions.The history of that exemption, and of the effort to navigate a passage between the shoals of the First and the Fourteenth Amendments, as a necessary background for this effort, follows.
Why focus on religious exemptions? they have become the way that the so-called religious right protests marriage equality. As Adam Serwer wrote in February,
The Supreme Court’s ruling striking down the Defense of Marriage Act last summer set off a chain reaction of federal judges ruling state bans on same-sex marriage bans as unconstitutional. But at the same time that same-sex marriage rights appear to be advancing, conservative legislators in more than a dozen states have been pushing for exceptions that would allow discrimination against gays and lesbians in the name of religious freedom.It's the next frontier, and a clear indication that even if the state bans of same-sex marriage are eliminated at the end of the next Supreme Court session, the opposition won't go away, it will just use different language. That language has already been developed in the form of a First Amendment rights claim, most recently accepted in the Hobby Lobby case.
Why? This section will be deeply indebted to a relatively new book by Michael Bronski, Ann Pellegrini and Michael Amico, "You Can tell Just By Looking" and 20 Other Myths about LGBT Life and People (2013), which has a chapter called "Myth 11. Gay Rights Infringe on Religious Liberty." That's the underlying basis for religious exemptions, after all, perhaps even an update of the "ick" factor by grounding it in a religious context to explain it. As the writers note, it's a misunderstanding of what "religious liberty" means in practice:
Religious liberty in the United States means that citizens can hold and express differing beliefs. It also means they have the freedom to practice those beliefs. [The idea that we're expected to reconcile our political differences on issues] like the moral status of homosexuality . . . gives us an inaccurate picture of what democracy and religious freedom would be [because] the purpose of democracy is to allow, even foster, disagreement.Yes, this is about the idea that one version of [Christian] belief should (remember the Puritans?) take precedence over all other opinions. And it's not just fundamental Protestants, because the Catholic Church was involved in a challenge to the adoption of children by same-sex couples.
The adoption case raises an important issue in all this: Catholic Charities is licensed by states to provide adoption services using public money to fund this effort, and three states (Illinois, Massachusetts and the District of Columbia) bar government contractors from discrimination on the basis of sexual orientation. If catholic Charities was allowed to discriminate in this manner by ignoring the law, these states would be subsidizing a religious viewpoint, and that falls afoul of the First Amendment by establishing a religion in exactly the way a state-written school prayer would.
Unfortunately, this camel already has its nose under the government tent, because the first conscience clause -- and almost every state has one -- was written in the wake of Roe v Wade in 1973. According to the Hastings Center, a nonpartisan research institute concentrating on bioethics, these conscience clauses are used by health care providers and by parents who oppose immunization, but that this practice is troubling:
Because physicians and other health care providers recognize a duty not to abandon patients, conscientious objection policies may specify that a professional who has invoked the right to refuse to provide a service must not interfere with the patient’s ability to obtain it elsewhere. This specification recognizes that it is professionally inappropriate for health care providers who step away from services to then step between a patient and another health care provider, whether by refusing to cooperate with the transfer of a patient’s care, refusing to make a referral, or making a patient feel uncomfortable or ashamed about seeking health care.This is also true given the "special vulnerabilty" of children, which the Hastings center says is no different from any other refusal despite the "special" status a beliefs claim gives it.
State laws? Bronski, Pellegrini and Amato:
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 principles of disestablishment . . . [T]hese 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, the state cannot and SHOULD not force any religious organization to sanctify a marriage that runs counter to its beliefs but that's why we have civil marriage. They also note that religious exemptions have also been used, famously by Bob Jones University, to justify racial discrimination, and that the Supreme Court (William Rehnquist dissenting) concluded religious beliefs couldn't be used as a blank check for discrimination.
Most importantly, Bronski, Pellegrini and Amato argue that LGBT rights are a matter of religious freedom as well, given the beliefs of liberal religious organizations like the Unitarian-Universalist Church. I'd also point out that the Fourteenth Amendment claim of equal protection, written to make sure that the new freedmen has a club to use against attempts to force them back into slavery after the Civil War, is another guarantee of LGBT rights, and it has been used as such in many of the post-Windsor opinions that support the idea of marriage equality. As Judge Henry Floyd wrote for the Fourth Circuit in overturning Virginia's ban on same-sex marriages,
The choice of whether and whom to marry is an intensely personal decision that alters the course of an individual’s life. Denying same-sex couples this choice prohibits them from participating fully in our society, which is precisely the type of segregation that the Fourteenth Amendment cannot countenance.All this is why we have to be extremely vigilant in the face of the attempts of various states to pass laws that would allow discrimination against the LGBT community in the name of religious freedom. At this point, Mississippi has a fairly weak law, and conservative groups in Oregon are trying to get such a measure on the November ballot. As far as I know, the Mississippi law hasn't been challenged in court yet, but business owners and LGBT rights advocates are fighting it on the grassroots level.