The collision of two core American values — freedom of religion and freedom from discrimination — is prompting a showdown in legislatures and courts across the country.
For some conservatives, religious freedom means the right to act on their opposition to same-sex marriage and other practices that go against their beliefs. LGBT advocates and their allies, meanwhile, say no one in the United States should face discrimination because of their sexual orientation.
President Trump is said to be considering an executive order to bar the federal government from punishing people or institutions that support marriage exclusively as the union of one man and one woman. The language is similar to a bill expected to be reintroduced by Republican Sens. Ted Cruz of Texas and Mike Lee of Utah called the First Amendment Defense Act.
After a widely circulated draft order aroused considerable opposition from the LGBT community, no further action was taken. Asked recently whether such an order might still get signed, White House spokesman Sean Spicer said only that Trump “will continue to fulfill” commitments he had made. Advocates for executive action say they do not expect new developments until Trump’s nominee for the Supreme Court, Neil Gorsuch, has been confirmed.
The debate’s heart: What “exercising” one’s religion means
Under the First Amendment to the U.S. Constitution, Congress is barred from enacting “an establishment of religion,” but neither can it prohibit “the free exercise thereof.” The question under current debate is what it means to “exercise” one’s religion.
If a football coach is not allowed to lead his team in a public prayer, or a high school valedictorian is not given permission to read a Bible passage for her graduation speech, or the owner of a private chapel is told he cannot refuse to accommodate a same-sex wedding, they might claim their religious freedom has been infringed. Others might argue that such claims go against the principle of church-state separation, or that they undermine the rights of LGBT people to be free from discrimination.
Legislation either to uphold LGBT rights or to limit them in the name of protecting religious freedom has advanced in several states, and further court battles are likely.
One of the thorniest cases involves Catholic Charities, whose agencies long have provided adoption and foster care services to children in need, including orphans. Under Catholic doctrine, the sacrament of marriage is defined as the union of a man and a woman, and Catholic adoption agencies therefore have declined to place children with same-sex couples.
When Massachusetts (and other jurisdictions) redefined marriage to include same-sex couples, making it illegal to deny adoption to them., the Catholic agencies closed down their adoption services and argued that their religious freedom had been infringed.
“One of the major activities of the [Catholic] church, going way back, was to look after the orphans,” says Stanley Carlson-Thies, founder of the Institutional Religious Freedom Alliance. “For that to be illegal unless the religious people change their standard, seems to me … unfortunate.”
But to the LGBT community and its supporters, a refusal to place a child for adoption with a same-sex couple is unacceptable discrimination against people on the basis of their sexual orientation. Those who oppose anti-discrimination efforts are often portrayed as out of step with the growing public acceptance of same-sex unions.
“I can’t think of a single civil rights law that doesn’t have some people who are unhappy about it,” says Karen Narasaki, a member of the U.S. Commission on Civil Rights. “But once the country has said, ‘Well, we believe that people who are LGBT need to be protected from discrimination, then how do you make sure that happens?”
The commission’s report on the religious freedom vs. anti-discrimination debate, published last September, came down squarely on the anti-discrimination side. The commission recommended that “civil rights protections ensuring nondiscrimination” were of “preeminent” importance and that religious exemptions to such policies “must be weighed carefully and defined narrowly on a fact-specific basis.”
The commission chairman at the time, Martin R. Castro, went further with a statement of his own, saying, “The phrases ‘religious liberty’ and ‘religious freedom’ will stand for nothing except hypocrisy so long as they remain code words for discrimination, intolerance, racism, sexism, homophobia, Islamophobia, Christian supremacy or any form of intolerance.”
The commission report sparked a protest letter signed by 17 faith leaders, arguing that the report “stigmatizes tens of millions of religious Americans, their communities and their faith-based institutions, and threatens the religious freedom of all our citizens.”
One of the signers, Charles Haynes, director of the Religious Freedom Center at the Newseum Institute in Washington, says religious conservatives are entitled to make claims of conscience.
“We may not like the claim of conscience,” Haynes says, “but you know, we don’t judge claims of conscience on whether we like the content of the claim. We are trying to protect the right of people to do what they feel they must do according to their God. That is a very high value.”
Haynes himself says LGBT rights and same-sex marriage “are very important” but that supporters of those causes “cannot simply declare that one side wins all.”
“Nondiscrimination is a great American principle — it’s a core American principle — as is religious freedom,” Haynes says. “When you have two important American principles coming into tension, into conflict with one another, our goal as Americans is to sit down and try to see if we can uphold both.”
Exercising “freedom to worship” in life
Not all faith leaders are convinced, however, that the push for LGBT rights is jeopardizing the religious freedom of people who hold conservative beliefs about sexuality and marriage.
During a recent appearance before the Council on Foreign Relations, Bishop Michael Curry, leader of the Episcopal Church in the United States, said he has witnessed the persecution of Christians in other parts of the world and doesn’t see anything comparable in the United States.
“I’m not worried about my religious freedom,” Curry said. “I get up and go to church on Sunday morning, ain’t nobody stopping me. My freedom to worship is protected in this country, and that’s not going to get taken away. I have been in places where that’s been infringed. That’s not what we’re talking about.”
Curry’s reference only to “freedom to worship,” however, missed the point, according to some religious freedom advocates. They say they want the freedom to exercise their faith every day of the week, wherever they are — even if it means occasionally challenging the principle of absolute equality for all.
“We can’t use equality to just wipe out one of the [First Amendment] rights,” Carlson-Thies says, “or say you can have the right, as long as you just exercise it in church, but not out in life.”
Carlson-Thies is one of several conservatives who support a “Fairness For All” initiative to forge a compromise between advocates for LGBT rights and religious freedom, but the effort has had little success so far. The LGBT community and their allies have been cool to the notion of compromising their cause, while a group of more strident religious freedom advocates made clear their own opposition to the recognition of sexual orientation as a status worthy of civil rights protection.
Legal analysts are divided in their assessment of the debate. A federal judge, ruling on a Mississippi religious freedom law, concluded that by protecting specific beliefs, the bill “constitutes an official preference for certain religious tenets,” and may therefore be unconstitutional. Other laws and proposals, however, are written in support of beliefs held by several different religions and thus may not run afoul of the First Amendment’s bar on “an establishment of religion.”
John Inazu, a law professor at Washington University in St. Louis whose book Confident Pluralism lays out an approach that might help bridge differences between LGBT and religious freedom advocates, says efforts at reconciliation face long odds.
“There were efforts early on about some kind of compromise,” he tells NPR in a recent interview. “I think those are less and less plausible as time goes on and as sides get factionalized. It’s hard to see in some of these cases how there would be an outcome that is amenable to everyone, and so I think we’re seeing these cases with us for a long time.”