The Real Question in the ‘Religious Liberty’ Debate

The Real Question in the 'Religious Liberty' Debate“Law is really ill-equipped for adjudicating between the claims of revelation and the claims of rationality.” – Katherine Franke, director of the Center for Gender and Sexuality Law at Columbia Law School.


At face value, ‘religious liberty’ is something no one objects to.  That makes the generations-old tension between ‘religious’ and ‘secular’ values, as they are often characterized, an impossible divide to gap.  Or so some would have you believe, and I like to call those people “wrong.”

The quote from Katherine Franke above comes from a Q&A with ProPublica over religious liberties vs. civil liberties arguments as they’ve played out over the past 70 years in public dialog compared with how they’re treated in legal and judicial circles.  What Franke means is that our nation of laws is indelicate in handling issues where something as personal as spiritual beliefs butt up against concepts of civil liberties and equal protection under the law.

By design.

Wrap the ‘religious liberty’ arguments in any clever phrasing you choose (in the ’90s it was “family values,” in 1956 it was the Southern Manifesto, today it’s “judicial tyranny”… or something), but undeniably the arguments still come down to one, simple, declaration of a perceived right to discriminate on religious grounds.  I’m not saying believing in such a right makes you a bad person; I’m saying lets stop pretending that’s not what you’re advocating.

From a failed bill in Kansas to preliminary discussions over a bill here in Utah, the argument is that a “deeply held religious belief” should be considered, by law, license to make discriminatory decisions regarding accommodations, services, privileges, benefits, etc.  Just last week, Rep. Anderegg, discussing his own bill proposal, even acknowledged this would include allowing government employees to deny an individual government services based solely on a religious objection to doing so.  His solution to this problem his bill would create?  Well, counties could just make sure to hire at least one person who didn’t object to providing services to a gay couple.  Because freedom.  Imagine how awkward that interview is going to be.  And the resume! “Skills: Not scared of Teh Gays.”  You’re hired!  Because freedom.

I digress.  The point here isn’t to disparage the religious liberties arguments of today and yesteryear, but to stop obfuscations as to what the that argument actually is: that a deeply held religious belief should trump equal protection under the law.  And most discussion doesn’t get to the only question that really exists.

In the ’50s and ’60s, private schools lost their tax exempt status for refusing to desegregate.  In the Nixon era, tax exempt status was withdrawn for institutions not in compliance with anti-segregation law.  In the early 1980s, Bob Jones lost their tax exempt status for policies against interracial dating.  In both instances, the importance of ‘deeply held religious beliefs’ as license to discriminate arguments were employed, and in both instances the law responded with a big, fat no.

Even in Burwell v. Hobby Lobby, the most recent case touching on religious liberties, the US Supreme Court was very clear in their ruling in favor of Hobby Lobby’s right as a privately owned corporation to make discriminatory decisions regarding health care and religious beliefs that the ruling applied only to Obamacare and the narrow question before the court.  Alito himself insisted that corporations do not “have free reign to impose ‘disadvantages […] on others.’

The precedent for equal protection trumping religious beliefs has been set.  Again, and again.  Stop acting as if that is new and original to the steady leaps toward legalizing same-sex marriage.  Further, it dates back far enough, through so many iterations of SCOTUS, federal and district courts, administrations, and eclectic congressional makeup, that it’s enshrined.  One simply cannot make the argument that this hierarchy of consideration for equal protection doesn’t exist or that it’s new.  We’ve gone there.  Many times.  Same result.  Indelicate, but consistent in the realm of law.  So, why does the debate seem to get renewed legitimacy in the courts every 10 years?

Because this precedent still exists primarily in issues involving race.  Race, we’ve clearly decided as a nation, is special.  And it’s been resolved that in cases involving race, equal protection wins.   So why are we about to reconsider arguments that are rhetorically similar to those Strom Thurmond used to battle desegregation?  (Sorry, folks, it’s just a fact).  We’re dealing with matters of sexual equality, reproductive rights, and sexual orientation.

The real question raised isn’t whether your religious beliefs insulate you from other equally important parts of the Constitution.  They don’t.  The real question isn’t whether equal protection can outweigh religious beliefs.  The question is: does that only apply to matters of racial discrimination?  And that’s a question we’ve been asking since the Civil Rights Act, so this might take a while still.

All this is to say, calm down.  All of you.  This isn’t judicial tyranny. This is a long, slow, indelicate legal process by design weighing and applying precedent in either expanded or contracted jurisdiction and scope.  I predict the scope of equal protection will be expanded beyond just race.  To further borrow from Franke, the courts, deciding issues from as varied as housing, adoption and banking laws have shown an increased awareness of dignity as a legal concept.  Rightfully so.

As it happens, I will gloat, but only because so many of you kept using that ridiculous “Pavillion” example that never was an example to justify your panic.  Please stop it.

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