By ARI EZRA WALDMAN
Last 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.
I 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.