Do religious freedom laws protect liberty or bigotry?

  • By Joel Mathis and Ben Boychuk Tribune News Service
  • Friday, April 8, 2016 3:49pm
  • OpinionCommentary

The debate over religious liberty versus gay rights has flared up again. North Carolina recently passed a bill telling cities they can’t pass non-discrimination ordinances protecting gay and lesbian residents, while Georgia Gov. Nathan Deal vetoed a bill that let faith-based organizations deny services and jobs to LGBT individuals. Mississippi passed a similar bill Tuesday. Missouri’s Legislature is debating legislation and other states may soon be considering them as well.

Do such bills protect religious folks from acting against their beliefs? Or do they permit discrimination against gays and lesbians? Joel Mathis and Ben Boychuk debate the issue.

Religious freedom is not the right to be right

The funny thing about the Georgia bill? How completely unnecessary it was.

One prime aim of the bill: To make sure that government could never, ever tell Catholic priests — or clergy of any other religion — to perform a gay wedding.

Guess what? That was never, ever going to happen. America’s long history of religious liberty would never allow it, even if politicians were suicidal enough to pass such a law: It would never be enforced by a Supreme Court that just recently said that Hobby Lobby’s owners don’t have to pay for birth control because of their religious objections.

In America, religious freedom often trumps everything else.

So why all the fire and angst to pass the Georgia bill? Our best clue comes from North Carolina, where a separate bill — different in substance, if the same in discriminatory intent — passed last week.

First: The bill was introduced, passed and signed into law in less than 12 hours. That’s extraordinary speed, and it was evidently meant to allow the law’s passage without allowing the public time to scrutinize or muster any meaningful opposition. The process was simply, and deliberately, undemocratic.

Second: The North Carolina bill declares that municipalities — such as Charlotte — cannot pass their own antidiscrimination ordinances. So even if local communities wish to protect gays and lesbians in their midst, they won’t be allowed to do so.

All of this suggests that current religious liberty efforts are nothing more than a political power play.

See: There are many Americans who legitimately believe their religion calls them to oppose gay marriage. But many folks are mostly angry that American culture no longer shares their views. The religious freedom they seek is the right to be, well, right — to be vindicated by law and society, to be in the majority, to not have to worry that one’s opinions are seen by others as bigotry.

But no American has a right to such vindication.

Some legitimate religious liberty concerns might arise as gay rights take root. That wasn’t the case in North Carolina or Georgia. The battle for LGBT freedom still isn’t over.

— Joel Mathis

Protections for religious liberty are not secure

Critics of Georgia’s religious liberty bill seem to want to have it both ways. The bill is totally unnecessary. The bill would give state sanction to bigotry and discrimination. Well, which is it?

The answer, of course, is neither claim is true. The Georgia bill was a necessary, if modest corrective, to a very bad trend. It was, in fact, an anti-bigotry and antidiscrimination measure.

The bill would have protected clergy and churches from secular coercion. Nobody would have been prevented from getting married. It would have protected religious organizations’ property rights, as well as their right to hire and fire people whose views are consistent with their mission and beliefs. Simple really.

Gov. Deal might have said as much, if he had the courage and the wit. Instead, he tied himself into knots trying to explain why knuckling under to big business and left-wing propagandists was really a victory for social tolerance and small government.

Deal claimed the controversy over whether or not the bill would encourage discrimination really just showed why the question was “best left to the broad protections of the First Amendment” — and, presumably, to the wisdom of the courts.

But as University of Notre Dame law professor Gerard V. Bradley points out, those “protections” are “neither broad nor deep, especially when they run up against the demands of the LGBT community.”

Fact is, America’s long history of religious freedom has depended greatly on favorable public opinion and the outlook of judges.

If enough elected officials feel enough public pressure, the laws that provide churches and religious institutions with certain protections and benefits — tax-exempt status, for instance — will go away. So will the First Amendment, if that’s what the people want.

But what’s to prevent some future government bureaucracy from ordering a church or a minister to marry a same-sex couple or face fines and imprisonment? A judge may find a “compelling state interest” to do so. And a Supreme Court with more justices inclined to think like Elena Kagan or Ruth Bader Ginsburg rather than Antonin Scalia or Clarence Thomas may very well agree.

So never say “never.” The question is far from settled. In truth, it may be the most important question facing the country right now.

­— Ben Boychuk

Ben Boychuk is associate editor of the Manhattan Institute’s City Journal. Joel Mathis is associate editor for Philadelphia Magazine.

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