Ari Ezra Waldman | Gay Marriage | Law - Gay, LGBT | Religion

The Next Big Thing: Religious Exemptions to LGBT-Inclusive Equality Laws


ThumbnailJames-EsseksLast week, Andy reported on a disturbing development from Republicans in Congress who should be worrying about keeping the government running rather than discriminating against gays. Idaho Republican Representative Paul Labrador, a leading arch-conservative, introduced a bill that would "protect the freedom of conscience" for those who dislike the idea of two men marrying each other. The bill would, among other things, permit federal workers to refuse to serve married same-sex couples, or same-sex couples wishing to get married, based on their own personal religious beliefs.

It is a law that would undermine every marriage equality success we have achieved over the last few years.

James Esseks (right) raised this point at this year's Lavender Law conference. After winning an award for his long service to the LGBT community and great success as LGBT Project Director at the ACLU and as one of Edie Windsor's attorneys, James asked us to pay attention to something many in the audience had not yet imagined: the possibility that the freedom of religion could destroy all of our pro-LGBT equality success. He was worried about precisely the kind of law Rep. Labrador is proposing.

CrossI am referring to religious exemptions to LGBT protections.

Some of these exemptions are eminently reasonable: A Catholic Church should not be forced by the State to perform and recognize a same-sex marriage if its doctrine opposes it.

Others are miles north of tricky and dangerous: Certain "conscience clauses" allow a county clerk to refuse to issue a marriage license to a same-sex couple in a marriage equality state if the idea of same-sex marriage offends him or her personally. Or, a "religious exception" allows a high school student to harass a gay peer if his religion tells him to oppose homosexuality.

Every time we negotiate over language on a ballot initiative or over language in a bill before a legislature for legislation protecting LGBT Americans from discrimination, we have come to reflexively include an exemption for religious observance. A little of that is ok; a lot of that threatens to do violence to the underlying purposes of the legislation. I argue that if these exemptions -- even the narrow, legitimate ones -- become too rote, too common, too enshrined in the law, then it feeds the cultural narrative that religious liberty trumps equality and fairness.

So, how do we argue that religious liberty and equality are not in conflict and that, at times, equality wins out? We cannot simply say that "I have a right to marry whom I love" because it is just as easy for someone to respond, "I have the right to follow my religious beliefs."

In other words, this isn't a question of rights. This is a question of values. The way to avoid a conflict between two rights is to deny that we are on a rights battlefield. There are two ways to do that: (1) eliminate the battle by seeking equality through the courts, not the legislative process, and (2) argue for equality differently. The first option isn't always available, so we must understand that marriage equality, employment fairness, protection from identity harassment and a host of other LGBT legal issues are about human dignity and social goods: individuals, regardless of their sexual orientation, deserve to be treated with equal dignity and, even more important, society will be better off when they are.

AFTER THE JUMP, let's see how these options help solve the religious exemption problem.

There is an inherent injustice in having this debate about religious exemptions to equality laws when, of all things, LGBT equality is at stake. That is because we had this debate already, and equality won out. Every state has what are called "public accommodations" laws, which prevent institutions and businesses that open themselves to the public from discriminating. A mall, a store, a restaurant, for example, cannot deny service to black people simply because they're black. The fact that a case of LGBT equality requires a religious exemption from equal treatment runs afoul of the spirit and sometimes the letter of default public accommodations laws. That means that the moment we accept religious exemptions, we are accepting the fact that sexual orientation should be treated differently than other deeply held characteristics that distinguish individual from one another. 

LovingThat's dangerous. We have been arguing that there really is little difference between the equality principle embodied by Loving v. Virginia, the Supreme Court case that invalidated laws banning interracial marriage, and marriage equality. But if we accept that sexual orientation deserves different legal treatment than race in the religious exemption/public accommodation context, we erode that argument.

The mere fact that we include religious exemptions, even narrow ones, in our equality laws also feeds the narrative that religious freedom is the stronger right. It says that our equality subject to someone else's conception of his religious freedom. The moment we let that become part of our picture of equality is the moment we defeat equality from within.

What can be done?

You will notice, as Lambda Legal's Haley Gorenberg pointed out at Lavender Law, that the problem of religious exemptions only comes up when we earn our equality through politics or legislation. Legislation is the product of bartering, marketing campaigns with voters and persuasion; as such, we need to give in order to take. But when we win equality through the courts -- like when DOMA or Prop 8 were struck down -- we had no need to barter. A court of law said discrimination violated the Constitution; no give-and-take was necessary.

But litigation is not always available. Nor is it always preferable. You can imagine scenarios where we would much rather have public will on our side so as to prevent a backlash, for example.

When we have to engage in the political sphere, we have to tailor our argument to make religious exemptions less necessary and less powerful. If LGBT equality is about our right to the free exercise of our identity, then it is easy for a traditionalist to come back and challenge the idea that our equality merits the perceived subjugation of his right to freely exercise his religion.

We have to argue that he misses the point. Equality laws are not about rights. Nor, for that matter are rights to exercise your religion freely. Rather, they embody a national value of dignity and personhood and the idea that treating all people with equal dignity is actually a good thing for society. In this way, these two "rights" do not conflict. They join together to treat us as whole persons and when the exercise of one interferes with that ultimate goal, it takes a back seat to the greater purpose.

Our movement has already been doing something like this. During the 2012 election season, when marriage equality was on the ballot in 4 states, campaigns led by Freedom to Marry focused on human dignity, personhood, love and commitment. It barely, if ever, mentioned a "right" to marry. These are going to be the successful arguments when it comes to other LGBT equality laws, from employment protection to antiharassment legislation. Preventing someone from being fired simply because he or she is gay is not simply a right; it is also a manifestation of the dignity to which we are entitled as free persons in a democratic society.


Follow me on Twitter: @ariezrawaldman

Ari Ezra Waldman is the Associate Director of the Institute for Information Law and Policy and a professor at New York Law School and is concurrently getting his PhD at Columbia University in New York City. He is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. Ari writes weekly posts on law and various LGBT issues.

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  1. Whenever these types of laws are introduced, we need to amend them to include religious exemptions to the rights of women to vote, of the religious right to own slaves, etc. to show these laws for what they truly are, old, straight, white, power hungry men trying to maintain their control over everyone and anyone they can.

    Posted by: Matt | Sep 25, 2013 11:17:15 AM

  2. People have right to worship as the want in their churches. That's the end of the story. Once they are out in the real world, their so-called "rigths" end when they conflict with another person's rights.

    Posted by: Steve | Sep 25, 2013 11:21:34 AM

  3. For me, the litmus test is to replace gay with black or woman and see how that plays out.

    I don't really care if churches don't want to perform gay weddings. But when you get into the governmental employees disallowing us or teens in school openly harassing us, that is state-approved discrimination.

    It won't pass, it can't.

    But the fact that it's being drafted shows a very ugly underbelly that is scary. These types like to draft this kind of law, knowing full well that it won't pass, simply in order to passively attack us, over and over again, as if nobody understands how much they hate us.


    Posted by: johnny | Sep 25, 2013 11:38:51 AM

  4. In my country, the Netherlands, we have marriage equality since 2001. Only since this year our government has prohibited federal workers to discriminate against same-sex couples wishing to get married, based on their own personal religious beliefs. It makes you think about the influence of religious groups, especially when you take into account that almost 50% of the dutch population considers itself non-religious.

    Posted by: Eko | Sep 25, 2013 11:53:51 AM

  5. I just read the bill, and it is so broad in it's "protections" that it protects the "religious freedom" of atheists to discriminate against gays! This needs to be stopped now.

    Posted by: Howard | Sep 25, 2013 12:02:10 PM

  6. If this country starts writing in discrimination based on the fairy tale sky god, I am out of here. I will go live literally anywhere else.

    Posted by: Tigerama | Sep 25, 2013 12:26:22 PM

  7. well, i can only assume, that if there's a religious exemption for high school kids who want to harass their gay peers, then it's only appropriate, that there an additional exemption for the gay kid to be able to turn around and punch his/her harasser in the nose.

    now THAT would be equality.

    Posted by: alguien | Sep 25, 2013 12:51:05 PM

  8. It's unconstitutional. You can't discriminate against anyone based on their religious beliefs. A law like this presupposes that those being discriminated against have no religious beliefs; but clearly they do. The fact that one individual's religious beliefs clash with another's does not void the constitution. Both are equal. This is why the public sector is considered secular, to avoid the clash of beliefs. I, as an atheist, do not have the right to discriminate against religious people outside of my home (or place of worship if I had one.) This is a two way street - the religious do not have the right to discriminate outside of their homes or places of worship.

    Posted by: Marshall | Sep 25, 2013 12:51:18 PM

  9. My religion forbids me to put up with ignorance. From now on, I will refuse to serve anyone with a little fishy sticker. In fact, I'll bash them in the face with a cake with two little grooms on it. That's a sacrament in my belief system.

    Posted by: DW | Sep 25, 2013 1:11:58 PM

  10. Isn't this close to, if not identical with, the point that the late Ronald Dworkin kept making: legal equality is not equal treatment so much as treatment as an equal?

    Posted by: Joe the Cynic | Sep 25, 2013 1:15:57 PM

  11. Since not all religious congregations feel this way would not this law favor one religion over another? In my limited mind this favors one religion over another. I thought that was unconstitutional

    Posted by: Michael | Sep 25, 2013 1:23:32 PM

  12. I always felt it's part of religious freedom to be openly gay. 1st amendment protects all religious practices even the religious that are less popular such as devil worship/atheism.

    Posted by: Alexander | Sep 25, 2013 1:48:25 PM

  13. Well I remember Jesus thinking hypocrites are the worst so my religious interpretation is that I may kill them at will.

    Posted by: Nigel | Sep 25, 2013 1:55:08 PM

  14. Ari is such a dummy. There is an entire body of caselaw on this issue going back to 1963 and continuing up to this year, and he discusses none of it. It is small wonder that he labors in a 3rd-tier law school.

    BTW, Ari, maybe you saw the story last week of a psychopath who was arrested after exposing 300 men to HIV. Since you are a "values" man, please explain again why you think that should be legal.

    Posted by: Abel | Sep 25, 2013 2:33:48 PM

  15. "Some of these exemptions are eminently reasonable: A Catholic Church should not be forced by the State to perform and recognize a same-sex marriage if its doctrine opposes it."

    You know, it's been common to say that, but frankly we are simply being too timid.

    What's reasonable about letting churches discriminate in marriage? Marriage is a government institution. Religion should not be used to trump it. If religions want to be in the marriage business, they need to follow the rules.

    Religions can do what they want regarding origin fairy tales, and end times. But if they deal with real things, they should be made to follow real laws.

    Posted by: Randy | Sep 25, 2013 2:34:05 PM

  16. Love you, Ari! Thanks for not writing about that little "incident" from 3 years ago! It's better that everyone forget. Once again, you got my back, bro!

    Posted by: Dharun Ravi | Sep 25, 2013 2:42:19 PM

  17. He looks a bit like John Waters....without the "mustache"

    Posted by: Stephen | Sep 25, 2013 3:07:21 PM

  18. 'The mere fact that we include religious exemptions, even narrow ones, in our equality laws also feeds the narrative that religious freedom is the stronger right.'

    Don't agree with this line of thinking at all. Giving an exemption to religious beliefs shows that equality is the greater right. No single set of religious tenets were singled out showing that equality is the right that guarantees Christianity doesn't supersede Judaism. And that Scientology and Mormonism are treated as equally protected religions even though they have vastly different tenets.

    Equality is clearly the higher right in a democracy.

    'Equality laws are not about rights.'
    Again, I disagree. Equality LAWS are exactly about rights. 'Equality' as a social tenet is an entirely different matter than equality under law and social equality is a much harder struggle without legal standing.

    Posted by: SERIOUSLY | Sep 25, 2013 3:15:43 PM

  19. Can you imagine the outcry if someone were making the same efforts of "conscience" to deny services based on race or religion?

    Posted by: Gregory In Seattle | Sep 25, 2013 3:26:54 PM

  20. Ha, Labrador is a Mormon and appears to be angling for a whole planet upon his death with this legislation.

    Posted by: Rob | Sep 25, 2013 3:44:01 PM

  21. So the mailman won't have to deliver my mail due to his religious beliefs?

    Posted by: gb | Sep 25, 2013 4:40:52 PM

  22. ...and when a different mailman does deliver my mail, will the religious mailman sneak into my mailbox and destroy my mail because he doesn't believe I deserve mail?

    Posted by: GB's lil' bro | Sep 25, 2013 7:59:47 PM

  23. It's a prima facie farce and an affront to the US Constitution's 14th Amendment. The proposed legislation is equivalent to the German Nuremberg Laws for Jews and it cannot pass Constitutional scrutiny.

    Posted by: Michael Barber | Sep 26, 2013 9:34:37 AM

  24. When the California Supreme Court overturned Proposition 22 (the predecessor to Proposition 8), it stated that existing law or court decisions protected religious organizations from having to perform same-sex wedding ceremonies if that was against their religious doctrine. One can argue that this is all the protection that religions need, but regardless, the California Supreme Court addressed the issue in its decision overturning Proposition 22.

    For those not familiar with the situation in California, Prop 22 and Prop 8 had identical wordings, but Prop 8 put those words in the state constitution, which prevented the state supreme court from overturning it as it had with Proposition 22 (particularly since the cases given to the state supreme court were crafted to avoid any federal issues). After Proposition 22 was overturned by the courts, Proposition 8 passed, leaving a window of several months in which same-sex marriages were allowed. Only recently was Proposition 8 overturned by the federal courts.

    I don't see how you can maintain separation of church and state (which was meant to protect religious minorities) if state officials can deny services to people based on such beliefs. A clerk processing a marriage license is not there to express personal approval or disapproval but is merely handling some paperwork in exchange for a fee, so this should not even be an issue.

    Posted by: Bill | Sep 26, 2013 1:40:12 PM

  25. I find the entire notion of a religious "exemption" duplicitous. Civil law cannot command the performance of a religious ceremony. That firewall is absolute.

    Freedom of religion simply does not mean what Labrador and his friends think it does. Why should anyone's religious practice be protected as it pertains to the treatment of any third party? One is entitled to believe what one pleases. However, one of the bedrocks of civil service is that all members of the public with whom a civil servant interacts are to be treated with equal respect. Without exception. You don't have to like them, you don't have to "approve of their lifestyle," nor for that matter do you serve them or not depending upon how they are dressed or how they wear their hair. That is simply not your business. You're applying for a driver's license and you're turned down because the clerk at the counter thinks you're gay and doesn't "approve" of you? Why on earth should that be permitted? Would the clerk be permitted not to issue your license if you were a woman and he thinks women ought not to be allowed to drive? And if ONLY gay people are made the subject of a "religious exemption" then how on earth can that possibly pass Constitutional muster? In that case it is not the religious person doing the discriminating, it is THE LAW which is doing the discriminating elevating a particular religious viewpoint to the status of public policy. And that is completely and utterly unacceptable.

    Posted by: sfbob | Sep 26, 2013 2:05:14 PM

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