That is the title of a column at RealClearReligion about the passage of a law recognizing same-sex marriage in Illinois. It’s written by Robert Gilligan, executive director of the Catholic Conference of Illinois. And it makes the familiar complaint that anti-discrimination laws violate religious freedom — but only when they disapprove of the target of that discrimination.
During floor debate, lawmakers threw out words such as “equality” and “fairness.” But one important term was glossed over — religious freedom.
It’s in the title of the bill, lawmakers said, the “Religious Freedom and Marriage Fairness Act.” They further noted that no church or clergy will be forced to solemnize any same-sex marriage or rent their parish or fellowship halls for any type of same-sex wedding recognition.
It’s all good, lawmakers assured faith groups and religious organizations. Your religious freedom is secure…
Senate Bill 10 offers no specific protection regarding employment practices. If a current church employee chooses to “marry” a same-sex partner, the legislation offers no specific protection regarding the church being forced to pay — from funds collected every Sunday from faithful church-goers in the pews — for benefits for the “spouse.”
Actually, that is already covered by the ministerial exception and both federal and state law. Churches are exempted from all anti-discrimination laws. But that isn’t what this is about. Churches are already exempt. What Gilligan wants, what the Christian right has been demanding all over the country and not just in relation to same-sex marriage, is that all religious individuals and businesses owned by them be exempted from the anti-discrimination laws — but only when it applies to gay people, as we will see shortly.
The legislation offers no conscience protections to health-care facilities, educational facilities, or social service agencies. So, faith-based hospitals, colleges, and universities that own and operate venues for rent are not protected.
Individuals and independent business owners whose religious beliefs do not condone same-sex marriage are also left in the dust. There are the stories about the photographers, bakers, florists, and bed-and-breakfast owners who have come under fire for refusing to serve same-sex weddings.
This is absolutely true, though it should be noted that this was already true in Illinois. It has been illegal to discriminate in housing, employment and public accommodation against on the basis of sexual orientation in Illinois since 2005. A for-profit business already cannot refuse to host a gay wedding party even if that marriage was not legally recognized by the state. It isn’t the recognition of gay marriage that is the problem here, it’s anti-discrimination law in general (which is a very important point that I will return to in a moment).
What about the county judge asked to perform a same-sex wedding, or a public school teacher forced to teach about a family with two moms, two dads, or some other permutation?
What about them? A judge can no more refuse to perform a same-sex wedding than they could refuse to perform an interracial or inter-religious wedding. And a public school teacher has to teach the curriculum whether it agrees with their religious beliefs or not. A teacher cannot legally decide that they won’t teach evolution or heliocentricity because it conflicts with their religious beliefs. And the recognition of same-sex marriages does nothing to change that.
A couple weeks ago a group of five eminent constitutional law scholars released an open letter on this subject, explaining why such a broad religious exemption should not be granted. They make this very important point:
These examples, invoked by the proponents of the “marriage conscience protection,” do not illustrate a unique threat posed by marriage. Instead, they underscore the fact that antidiscrimination law has, for many years, addressed conflicts that arise between same-sex couples and religious objectors, regardless of whether same-sex couples can get married.
Here is the bottom line: Tens of thousands of same-sex couples have been married, civilly unionized, or domestically partnered over the past decade. They have had ceremonies, selected caterers, rented halls, ordered flowers and invitations, been fitted for dresses and tuxedos, chosen professional photographers, hired clergy and non-clergy alike to officiate, obtained licenses from state bureaus, rented apartments together, adopted children, enrolled their kids in public and private schools, sought employment to support their families, claimed health benefits for their spouses,
trudged through relationship counseling, and done all the other things married people do.
The opportunity has certainly been there for massive legal conflict, which the religious liberty scholars have been predicting for years now.16 Yet the legal conflicts between same-sex couples and religious objectors—all under pre-existing antidiscrimination laws—have been very few. More broadly, we can find no case in which the state’s formal legal recognition of the same-sex couple determined the outcome, no case in which the existence of a same-sex marriage defeated an otherwise meritorious religious-freedom claim, and no case in which the absence of a samesex marriage relieved the religious objector of a nondiscrimination obligation.
But here’s an equally important point, one that I have been making for many years. When it comes to the demand for religious exemptions from anti-discrimination laws, there is nothing unique about sexual orientation. Religious belief can and has been to justify discrimination on all of the other forbidden bases for discrimination as well. The argument being made applies just as logically to laws that prevent discrimination on the basis of race, religion or gender.
If it violates one’s religious liberty to be prevented from refusing to hire a gay person, why does it not violate one’s religious liberty to be forced to hire a woman, a black person, an atheist or a Muslim (or for that matter, a Christian)? Lots and lots of fundamentalist Christians, Muslims and Jews believe that women should not work but should stay in the home. Can a business owner refuse to hire a woman on the basis of that religious belief? The answer is obviously no. The same is true of race and religion.
If we are to take seriously the argument that laws banning LGBT discrimination are a violation of religious liberty, if it is true at all, then it is equally true of all anti-discrimination laws and we must now turn back the clock to 1963 and do away with the Civil Rights Act. But almost none of the people making the noise about the terrible tyranny being imposed on Christians by same-sex marriage and the Employment Non-Discrimination Act are following their argument to its obvious and logical conclusion (only the most dogmatic of libertarians do so).
There is no reason why we should carve out an exemption just for discrimination against gay people. If it is a violation of religious liberty to forbid discrimination, then it a violation in all cases. Or it’s a violation in none. The fact is, this country opted most than two generations ago to forbid such discrimination and the overwhelming majority of Americans support that. Even a majority of Republicans don’t think you should be allowed to fire or refuse to hire a gay person. We grant exemptions to churches in order to prevent the government from meddling in church affairs and doctrines, as we should, but if you run a business that is open to the public then it must be open to the public and you cannot discriminate in your hiring. And that is as it should be.
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