We’ve Already Balanced Equal Protection and Religious Freedom

It’s a bit frustrating that anyone feels like we’re in uncharted territory, or like we have some tough task ahead to balance religious freedom with equal protection rights for LGBT people. While there are some distinctions between the gay rights movement and the racial civil rights movement, those are, for the purposes of equal protection, distinctions without a difference.

They don’t need to complicate our legal framework or the balance we’ve struck in the past between religious freedom and equal protection. As it relates to racial equal protection, the compromise we’ve struck, in broad terms, is that racists, regardless of their rationale, can be just as racist as they want to be except in government, things financed by government, or in public accommodations.

This leaves a wide area of life in which racists can do their ignorant thing unmolested by the strictures of law. For example, churches can (and some do!) refuse to marry interracial couples. Private groups can discriminate in their memberships. People can discriminate in who they invite into their homes. But, bakers can’t refuse to sell baked goods to members of races they don’t like, nor can hoteliers refuse to rent rooms, nor can public wedding chapels refuse to host mixed-race weddings, etc.

Many people try say that LGBT rights are different because there’s a strong religious objection to them. It’s true that there’s a strong religious objection, but that’s not unique. Google “religious justifications for racism” and you’ll see that 50 years ago many people earnestly believed that their religion required them to be racists. Some still do. There are strong religious objections to educating women, to men not wearing hats, and to any number of other things. It’s not unique or special at all that there is a strong religious objection to LGBT rights.

We struck a balance between religious freedom and equal protection in the past by putting some pretty reasonable time/place/manner restrictions on religious freedom to discriminate so that there could be a reasonable time/place/manner protection for the equal rights of racial minorities to not be discriminated against. From my perspective, if you’re going to say that the balance should be struck differently as it relates to LGBT people, the burden is on you to provide some good reason why our previous balance is insufficient to protect religious freedom now.

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