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.
That'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.
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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.