Religious Freedom Laws

Since the recent U.S. Supreme Court decision in Obergefell v. Hodges earlier this year, legal same-sex marriage is the law of the land.

Many people are still unhappy about the decision and some fear that in complying with the law they will be forced to violate their sincere religious beliefs. You've no doubt heard of cases in which courts have held that refusing to bake a wedding cake for a same-sex couple is unconstitutional discrimination. Look here for just one example of many.

In one highly-publicized case from 2013, a photographer was held to have discriminated because she refused to photograph a same-sex commitment ceremony. In this case, the New Mexico Supreme Court held that the photographer had discriminated, in violation of state law, and the U.S. Supreme Court declined to review the decision.

Since the Obergefell decision there have been well-publicized cases in which government officials who issue marriage licenses have cited religious reasons for not granting licenses to same-sex couples. Here is one example. Or here.

A fact that many have missed about the bakery or photography cases is that these cases are not about federal law, and are in fact unrelated to the question of whether same-sex marriage is or is not legal. These cases are based on state laws adopted by state legislatures that establish sexual orientation as a protected class. So in those states it's illegal to discriminate against same-sex couples just as it's illegal to discriminate against African-Americans or women or disabled persons. In Texas it's not illegal to discriminate against same-sex couples because sexual orientation has not been added to the list of those protected from discrimination. So a Texas bakery can refuse service to a same-sex couple with impunity.

Texas also is challenging government-subsidized benefits for married same-sex couples. Texas's argument is that the Obergefell decision mandated that the state perform same-sex marriages but did not explicitly mandate that states offer the same benefits to married same-sex couples that are offered to married opposite-sex couples. Texas officials (the governor, lt. governor and attorney general) believe that discriminating -- treating same-sex couples differently from opposite-sex couples -- should be the state's choice.

Federal legislation has been introduced that, if passed, would among other things expand the Civil Rights Act of 1964 to include sexual orientation among federally-protected classes. Here is a description (from the "liberal" web site thinkprogress.org) of what this legislation would do. No one realistically expects it to pass, though

The basic anti-discrimination principle in the Civil Rights Act is that "public accommodations" (such as restaurants, theaters, hotels, etc.) cannot discriminate against members of protected classes of people. A restaurant, for example, cannot refuse to serve African-Americans or women, even if they have a sincerely held belief that African-Americans or women are undesirable. Some people's sincerely held religious beliefs long included the belief that African-Americans were cursed by God (the biblical "mark of Cain") and thus discrimination against them is ordained, or at least approved of, by God. That belief was an important element of the supreme court case Newman v. Piggie Park (1968).

Anti-discrimination laws generally have exemptions for religious institutions. So churches may refuse to host gay weddings if they choose. For-profit wedding chapels are not similarly protected (here's one story from a conservative perspective and a liberal perspective) as they are generally considered to be public accommodations.

Some have asserted that the logic of forcing a baker who objects on religious grounds to baking a wedding cake for a gay marriage is the same as forcing an African-American baker to bake a cake for a KKK wedding or a Jew to bake a cake for a Nazi wedding. That's not actually an accurate analogy. The KKK is not a protected class. Neither is the Nazi party. Any baker, black or white, can therefore refuse to bake a cake for a KKK wedding, or any Jew for a Nazi wedding, without being accused of legal discrimination.

So, what do you think? Should any business owner, or even any government official, be empowered to deny service to same-sex couples on the basis of their sincerely-held religious beliefs?

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