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Gay Rights & Religious Freedom: Can We Find Common Ground?

Symposium July 2014

With: Abba Cohen, Douglas Laycock, Jay Michaelson, Jonathan Rauch, Marc D. Stern, Robin Fretwell Wilson

Interviews by Rachel E. Gross

When President Barack Obama announced in June that he would issue an executive order barring federal contractors from discriminating against employees based on sexual orientation or gender identity, LGBT rights proponents were ready to rejoice. Yet before they did, they had one request: Don’t undermine the order’s power by allowing exemptions for religious liberties.

As laws protecting LGBT rights gain momentum, religious groups have rushed to secure protections that would excuse them from anti-discrimination legislation on religious grounds. This has raised difficult questions about how to balance some of our nation’s most fundamental rights. For instance, can a baker be forced to sell a gay couple their wedding cake if doing so conflicts with his or her religious beliefs (an actual case in Colorado)?

“A great deal is at stake,” says Charles Haynes, director of the Religious Freedom Center of the Newseum Institute in Washington, DC. “Two of the most important principles in our democracy—equality and religious liberty—are colliding in our society.” 

When it comes to navigating the political minefield, history provides some guidance. The religious liberty exemption question dates back to 1993, when Bill Clinton signed into law the federal Religious Freedom Restoration Act (RFRA). The Act, which was meant to protect minority religious groups like Native American tribes who took part in peyote rituals, stated that, “Government shall not substantially burden a person’s exercise of religion…without compelling justification.”

In 1997, RFRA was deemed unconstitutional as it applied to the states by the Supreme Court (the federal law is still in play, as seen in Monday’s Hobby Lobby ruling, which allowed religious exemptions to Obamacare for for-profit companies). Today, RFRA is seeing an unlikely reincarnation, as states from Arizona to Mississippi propose their own versions of RFRA in response to the spread of same-sex legislation.

Moment asks six preeminent scholars: Can we find common ground between gay rights and religious freedom?

DOUGLAS LAYCOCK

We teach our children that America is the land of “liberty and justice for all.” “For all” means liberty for both sides in the culture wars—liberty to live their own lives by their own values. It means marriage equality and strong gay rights legislation, and it means strong religious exemptions for religious organizations and religious individuals. 

“Live and let live” is the characteristically American solution to deep moral or religious disagreements. Religious exemptions from laws that would require violation of conscience have been part of the American experience of religious liberty since the 17th century. Colonial Americans exempted Quakers from serving in the military and swearing oaths; they exempted religious minorities of all sorts from paying the church tax in colonies (and later states) that assessed a church tax. 

Religious exemptions are still the right solution today, and many are entirely uncontroversial. We exempt Seder wine (and Communion wine) from laws about alcohol and children. Sabbath observers are entitled to reasonable accommodation in their workplace, and if no accommodation can be worked out and they quit their job, they are entitled to unemployment compensation. Some exemptions arouse more controversy but work to protect both sides. We provide abortions for women who need them, at least in blue states, but we exempt individual doctors and nurses from participating in them, even in blue states. A study 20 years ago counted more than 2,000 religious exemptions in state and federal statutes.

Sexual morality has been a central part of religious teaching for millennia; the teachings at issue in the controversy over same-sex marriage are not something made up in response to the gay rights movement. Certainly religious organizations should be allowed to practice their religious teachings in their own operations. Individuals asked to violate their conscience in the workplace are already protected by the civil rights laws, although judicial enforcement has been anemic. We should also protect individuals who perform personal services in very smallbusinesses. I would draw the line there. In larger businesses, the government’s interest in regulating is greater, and the owner can assign a religiously forbidden task to an employee who does not share the religious objection.

Of course same-sex couples have a right to marry, and to as grand a wedding as they desire. But they do not have to force religious believers in traditional marriage to host the wedding or cater the reception. 

Douglas Laycock is the Robert E. Scott Distinguished Professor of Law at the University of Virginia School of Law and co-editor of  Same-Sex Marriage and Religious Liberty: Emerging Conflicts.

JONATHAN RAUCH

The First Amendment is our founding freedom and religious conscience is the founding principle of the American republic. What we’re seeing now are situations not limited to gay marriage—we also see it in contraception—in which there is a tension between civil liberty and other rights. In the case of gay marriage, primarily what we see is a conflict between anti-discrimination law which says you serve all your customers, you deal with everybody and you don’t discriminate, and religious liberty which says, wait a minute, I don’t want to be a party to something that I regard as deeply offensive to my religion. My view on that has always been that the answer is reasonable religious accommodation. The way to work that out is primarily at the state and local level. There’s no reason that Massachusetts and Texas need to do the same thing. Not everyone should agree on everything and not every state should look alike. 

What recent religious protection laws do is not an accommodation. It’s not a two-sided deal. It’s one side coming in and saying, “We want all the marbles. We will do absolutely nothing for gay and lesbian people in this state. Not only can they not get married, but there are no civil unions, no domestic partnerships, and they can be fired for being gay. But we will have robust protections for religious folks who don’t want to deal with them.” This is radically unbalanced. And the problem with being radically unbalanced is when one side says, “What we really want is to take all the marbles and go home,” the other side will do the same. This will poison the well for the kind of negotiations we need to have going forward. 

A lot of religious folks have decided to push back very hard against what they perceive as any encroachment. That’s a pretty aggressive posture. When someone tells you, whether they win or lose in the end, I want to be able to throw you out of my store because I don’t approve of your moral behavior, what they’re saying is that the first priority of religious people is to be able to discriminate. That is terrible messaging. You can expect all kinds of things to happen as a result of that, and they’re not going to be in the direction of smooth integration with society and getting along well with others. It’s a battle I don’t think they’re going to win. I think they’re going to alienate mainstream America, and it will be significantly harder to reach an accommodation. 

Jonathan Rauch is a senior fellow at the Brookings Institution and the author of Kindly Inquisitors: The New Attacks on Free Thought and Gay Marriage: Why It Is Good for Gays, Good for Straights, and Good for America.

ABBA COHEN

Religion today is increasingly under attack. We are seeing for the first time that some Americans are questioning the very principle of free exercise, which has resulted in numerous conflicts. It has reached the point where those who believe our religious liberties should be protected even within the context of gay rights are referred to as bigots, haters and liars. This rhetoric has created a tremendous tension. In the past, we were assured that, “We don’t want to change your religious beliefs, you are entitled to believe what you believe, we just want what is due to us.” But that’s not the case anymore. The rhetoric has changed to the point where they see hate in the religious teachings themselves, and they refer to it as such. They seek to change our religious values. That’s very threatening.  

 If the argument were limited to “discrimination” and how Congress or the courts should address it, then we should focus on the issue within that context. But the fight against gay discrimination is used not to just gain fairness and equal rights. It is used in a much broader, more powerful way. It is used to gain universal acceptance in society of homosexuality and the homosexual lifestyle.  This “moral legitimacy” runs against our sincere religious beliefs. The stakes are much higher. This adds to the tension. We’re no longer talking about a specific issue or a specific problem. We’re talking about radical change in the way many people think and in the very values of society. For the religious community, this is very significant. 

 Religious freedom is our First Freedom. That means something; it’s not just rhetoric. Religious liberty has a special place in our law, and deserves strong protection. When other interests are in conflict with it, our law provides ways to deal with it. Sometimes a legislative exemption is appropriate. Sometimes we have to look to the Constitution or RFRA, where the question is: Is this a competing interest or a compelling interest? To justify infringing on religious freedom, you have to show the state has a compelling interest. There is a balancing test. There is consideration of both sides of the issue. The test for religious freedom must be applied across the board. No exceptions; no carve-outs. It shouldn’t be applied one way in one case and another way in another case. 

The growing assumption that gay rights automatically trump religious rights is frightening. We don’t believe that religious rights should be sacrificed on the altar of gay rights.

Rabbi Abba Cohen is Agudath Israel of America’s Vice President for Federal Affairs and Washington Director.

JAY MICHAELSON

With the increasing polarization of American political discourse, there is a sense of embattlement on the right and of losing the culture war. That isn’t entirely inaccurate. These kinds of efforts to carve out exemptions to laws of general application are part of that, and are certainly likely to continue. It’s a replay of what we saw in the 1960s and 1970s on race. The pattern has been: Lose the battle and then try to carve out an exemption. 

Race is not the same as sexual orientation. But the same principle holds: That a third party shouldn’t be harmed by somebody’s religion. It’s just not the American way to put up a sign on your hotel saying no Jews allowed or no gays allowed or no blacks allowed. As Jesus enunciated in the New Testament: “Render unto God what is God’s, and render unto Caesar what is Caesar’s.” When you’re operating in the marketplace as a public accommodation, you obey Caesar’s rules, the rules of the marketplace. And those rules include, in many cases, nondiscrimination and providing health insurance to your employees. That is a secular duty which anyone choosing to go into business has to obey, just as they have to obey fair labor standards, even when they conflict with one’s own, private conscience. And of course there are many exemptions for small businesses, so let’s not think that these large corporations are the same as individuals with a religious objection.

The political process is a way in which those competing interests can be resolved. But it also has to work itself out in religious and social circles. Let’s use the wedding cake case: If I’m baking a cake for a same-sex wedding, is it really the case that I’m making a statement in support of gay marriage? That’s not a legal question. That’s not something the courts can settle. It’s philosophical, religious, ethical. We should be having a moral conversation to address some of these claims.

Jay Michaelson is the author of the 2013 report Redefining Religious Liberty: The Covert Campaign against Civil Rights and God vs. Gay? The Religious Case for Equality.

ROBIN FRETWELL WILSON

The debate over religious protections in Arizona is very different from the primary context in which religious liberty exemptions have emerged, in the context of same-sex marriage legislation. The bill vetoed in Arizona would have clarified the scope of protections under the state’s religious freedom restoration act. RFRAs were designed to respond to contexts far removed from gay rights. But commentators, the media and the public took that arcane legal question about “who qualifies” to mean that businesses can turn away lesbians and gays for any reason or none at all, and that those businesses would always win, because of the RFRA. For instance, the Arizona bill vetoed by Governor Brewer would have amended the state’s RFRA to definitively speak to a question which has split the courts: whether commercial businesses being sued by another citizen even qualify for RFRA protection. 

That fundamental misunderstanding ironically was propelled by some religious liberty advocates themselves who said that they needed the amendment in order to “stave off gay rights.” To be clear, there were no gay rights in Arizona—at least in Arizona state law—to stave off. (No same-sex marriage, no same-sex civil unions and no protection against sexual orientation discrimination in housing, hiring or public accommodations.) So the project of bolstering religious freedom went off the rails in Arizona precisely because religious liberty advocates had only themselves in mind. I think something more constructive could have been done. The legislators could—and should—have granted the LGBT community the same protections that the rest of us have in the same piece of legislation that was supposed to clarify this technical point about who has the ability to bring a RFRA claim.

 As the great Southern historian Shelby Foote said, “Americans like to think of themselves as uncompromising. But our true genius is compromise.” I don’t think that has been as true anywhere as in the case of same-sex marriage. You can’t have people on either side trying to take all the gains for themselves and pretending as if there’s nothing at stake for the other party. Both sides have to take something off the table. Where both sides basically have their interests acknowledged and protected at the same moment in the same piece of legislation, then things go forward. The compromises struck in a given state may not be perfect. It may be that neither side is completely happy with the equilibrium that gets reached by individual states. But the idea that the interests of each side are completely at loggerheads, and one side has to take everything and the other side has to lose everything, is a complete fallacy. There needs to be, especially in a time of great social transition, some way of allowing people to live together in peace.

Robin Fretwell Wilson is the Roger and Stephany Joslin Professor of Law and Director of the Family Law and Policy Program at the University of Illinois College of Law and co-editor of Same-Sex Marriage and Religious Liberty: Emerging Conflicts.

MARC D. STERN

RFRA was not conceived as a minority rights statute. It was focused on religious liberty in general. In those days, the clash between liberty and equality wasn’t quite as front-and-center as it is today. In the mid 1990s, people began to focus on the civil rights issue because gay rights had become much more salient. There were also efforts to allow private charities to get government money while keeping their religious protections, including the right to hire whom they wished, which meant hiring only Christians or Jews or Buddhists. But the big change was that the emergence of gay rights writ large, and the beginning of the discussion of legalizing gay marriage, began to focus attention on this clash. And that’s why we now have sharply different views.

In cases in which the claim is made that government regulation interferes with religious liberty, you need to look at each claim and the circumstances around it, because sometimes the particular application of a very good general rule doesn’t make sense. That is true of speech, religion and other interests. The fight is over whether equality is so important that it deserves no exceptions and therefore categorically any claim for a religious liberty exemption loses. If both sides are taken seriously, you shouldn’t get hypotheticals thrown around as a means of deciding cases. I think a case-by-case approach works better than sweeping generalities because both sides get to present their arguments in each case.

Marc D. Stern is general counsel of the American Jewish Congress and a contributor to Same-Sex Marriage and Religious Liberty: Emerging Conflicts.

3 comments

  1. STEVEFROMPOTOMACMD

    Mr. Rauch should have a heart to heart talk with Mr. Stern. Marc Stern concludes with the idea that on a case by case basis in a society like the USA we surely can work things out. Jonathan Rauch seems to prefer painting with a broad brush – one size fits all.

    Rauch seems to castigate religious people “for wanting all the marbles” – his words. Mr. Rauch is being disingenuous on the verge of being deflammatory & libelous. He indites religious folks for being “unbalanced” – too “aggressive” – “pushing back on encroachment” in their belief system. Only in the last statement re “encroachment” might Mr. Roach be accurate. For indeed given the unprecedented speed with which the gay movement has practically usurped media coverage and free thought and speech – are we indeed seeing encroachment on the privacy and freedom of thought and speech of those who are neutral to or not receptive to gay life styles.

    The vast majorityy of religous folks take a live and let live appraoch. They do not want anyone else’s marbles. SCOTUS sided with Hobby Lobby. What did Hobby Lobby want? The women’s movement lies and says that Hobby Lobby is against contreception as well as against abortion – that Hobby Lobby is warring on women. Hillary CLinton seems to agree.

    What did Hobby Lobby ask for? – To be permitted to offer 12 out of 16 means of contreception covered by the U.S. Department of Health & Human Services mandated insurance coverage. Hobby Lobby claimed that four of the 16 procedures were in effect post fertilization in impact and therefore abortions. That ran counter to the Hobby Lobby owner’s beliefs.

    Hobby Lobby owners are not reckless “want all the marbles” religious fanatics along the lines that Mr. Rauch draws. The H-L owners are like the vast majority of Americans wanting to live and let live.

    How does this apply to gay rights. The gay rights movement wants all the marbles. The vast majority of gays surveyed merely wanted the right to civil unions with their loved ones in order to be able to realize the same protections that the law provides married couples. Was this enough for the Movemnet’s leaders? NO! By turning this simple need for civil unions into a debate over what is and isn’t marriage the gay movement dragged the Country into a place we need not have ventured and thereby encroached on USA citizens who happen to take the millennia old understanding of marriage very seriously.

    I have no doubt that the vast majority of Americans would have supported an apporach that encouraged all States to enact civil union laws available to couples regardless of gender. Instead what do we have – we are on a path which defines marriage state by state as being open to everyone. What will the Gay Movement say the first time that poligamy practicers apply for marriage certificates? How about those practicing beatialty? The last 100 years of so-called “progressive” political action has endowed the Country with mountains of ashes and worse as a result of the unanticipated consequences of most “progressives” one-size-fits-all legislation – or as Jonathan Roach might say demand all of the marbles – mine, yours, theirs – legislation.

    The Founders were not idiots. They weren’t turf protectors when they created the idea of Federalism and mutually exclusive areas of authority (derived from the consent of the Govered) to the States and to the Federal government. And what would the FOunders think of the fourth branch of government – independent agencies appinted by the Presendent and monolithic leviathans of Executive agencies under the President’s direct supervision – created and/or greatly expanded in the 20th century – to usurp Congresses legislative powers?

  2. This artilce is very misleading in that it failed to provide much counter balance to a very narrow conception of “religious liberty” – that of the religious right and other religious reactionaries. Three members of your panel – Laycock, Wilson, and Stern – represent a very small yet extremely vocal segment of the legal academy who have favor maximalist religious exemptions at the expense of third parties, such as women and gays. The Rabbi sounds like Pat Robertson, which is odd since the vast majority of jewish americans align with Jay Michaleson – they are very liberal, especially on minority rights, and most of the official jewish “denominations” (Reform, Conservative, and Reconstructionist) fully accept LGBT people (ordination and marriage). Only amongst a small section of the Orthodox do you ever encounter the sort of hysteria that the Rabbi exhibits here.

  3. In reaction to reading Rabbi Abba Cohen’s response to Gay Rights and Religious Freedom, I wonder if he thinks homosexuality is a choice or biological. The beginning of any moral legitimacy is empathy. Without empathy and understanding of people who are born with no sexual desire for the opposite sex, I can understand why it’s hard for him to imagine how gay people encounter the world.
    If it’s simply a choice then it’s easy to say, gays are making bad choices. But since it is biological, how should gay people live? Should they not engage in the community, should they restrict their friendships and family relations, should they deny themselves love?
    While Rabbi Cohen sees the status quo as good and that making any changes is being anti-religious, people fighting for whole personhood are not attacking religion. They are working to change religious dogma that denies their fundamental personhood.
    For Orthodox Jews who are gay, how can they fit into a community that denies their very existence? If these Jews want to observe the commandments they will feel unwelcome due to attitudes such as Rabbi Cohen’s. There is a lot in the Torah that is now considered immoral, slavery being the most obvious.
    To say that changes happen in Judaism is not to attack it, but to point out the historical facts. If LGBT people are sent away from the community, it is easy for people like Rabbi Cohen to think they do not exist or not understand them. He should educate himself. If he wants to live in a closed-off world he is entitled to, but civil law should be for all citizens.

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