State statues against gays are just homophobia masquerading as religious liberty

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Late in one of the most remarkable of American lives, Thomas Jefferson wrote this to one of his many correspondents: “I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should ‘make no law respecting an establishment of religion, or prohibiting the free exercise thereof,’ thus building a wall of separation between Church & State. Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore to man all his natural rights, convinced he has no natural right in opposition to his social duties.” 

Jefferson, of course, was musing on an issue that long had engaged his attention—not simply liberty of religious conscience, but also how a conscience formed by individual religious choices might responsibly operate in civil society. In 1777, he wrote on behalf of his home state’s assembly, the now famous “Virginia Statute for Religious Freedom.”

Apart from disestablishing the Anglican Church and removing religious tests of office, that visionary document contains two brief, usually overlooked, digressions that speak to this current American moment with a renewed urgency.

One is this stunning profession: “Our civil rights have no dependence on our religious opinions any more than our opinions in physics or geometry.”

The other is a tragically prophetic admission that, in a democratic republic, freedom’s victories always would be in some sense provisional: “And though we well know that this Assembly elected by the people for the ordinary purposes of Legislation only, have no power to restrain the acts of succeeding Assemblies constituted with powers equal to our own, and that therefore to declare this act irrevocable would be of no effect in law; yet we are free to declare, and do declare that the rights hereby asserted, are of the natural rights of mankind, and that if any act shall be hereafter passed to repeal the present or to narrow its operation, such act will be an infringement of natural right.”

Both these thoughts are more than relevant to the current legislative counterrevolution being waged in the southern and border states against equal rights for gay, lesbian and trans-gender Americans, particularly marriage equality. Since the U.S. Supreme Court’s landmark 2015 ruling in Obergefell v Hodges that the 14th Amendment protects the right of same-sex couples to marry, five Republican dominated states have passed and two others are considering so-called “religious freedom” acts. These statutes, which parody the federal Religious Freedom Restoration Act (RIFRA), allow merchants and, in some cases, local government officials to discriminate against same-sex couples, even to the extent of denying them the marriage licenses to which the high court says they are constitutionally entitled. In some cases, as in North Carolina, these laws include preemption language precluding local governments from barring discrimination against gays, lesbians and trans-gender people.

Whatever their titles, these laws have nothing to do with genuine religious freedom and everything to do with preserving homophobia in law.

Their legislative antecedents are the 19th and early 20th century Jim Crowe statutes that made the 14th Amendment’s guarantees of equality to African Americans a hallow sham until that great provision’s promise was revived by the passage of new civil rights legislation in the 1960’s. Even then, it took federal judges, marshals and, sometimes, troops to vindicate the self-evident natural rights of black Americans.

In American life, it seems, eradicable bigotry is the perverse mirror image of the stubborn insistence on equal rights.

A variety of states that flirted with these so-called religious freedom statutes have modified or backed away from them under intense pressure from big business, which understands what the Republican Party refuses to, that discrimination is a losing proposition. In some instances, where state officials struggle to save face, the results have been worse than farcical.

In North Carolina, for example, the governor would like people to believe that the whole controversy comes down to an attempt to compel trans-gender people to continue to use the bathroom into which they were born. (Here’s a thought: Why not do what so many Europeans have done and make all public facilities gender neutral?) Can there really be so many trans-gender North Carolinians clamoring to get into public restrooms that it’s worth this sort of wrenching crisis? Somehow, one suspects what’s being protected are not the delicate sensibilities of the Tar Heel State’s young women, but the ingrained homophobic prejudices of its knuckle-dragging lawmakers.

Do we really want to say that ‘liberty of conscience’ entitles such people to deny marriage licenses to a black woman and white man who wish to marry? Do we really believe that a florist who finds marriage between a Christian and a Jew distasteful should be entitled to refuse to sell them a flower arrangement?

We’re likely to hear a great more about this as the GOP presidential race advances toward the Cleveland convention. Ted Cruz was an early supporter of Indiana’s ultra-hardline statute—since modified under intense economic pressure. At the time, he alleged that Democrats who support marriage equality—as both Hillary Clinton and Bernie Sanders do—“want to persecute anyone that has a good-faith religious belief that marriage is a holy sacrament between the union of one man and one woman and ordained as a covenant by God.”

In some ways the most perverse aspect of this neo-Jim Crowe movement is its appropriation of the federal RFRA. That landmark statute was written by the late Massachusetts Sen. Ted Kennedy and introduced in the House by then-congressman, now New York Sen. Charles Schumer. The New York Senator has been quick to deny any comparison between the federal law and most of those now being adopted by the states.

“First, the federal RFRA was written narrowly to protect individuals’ religious freedom from government interference unless the government or state had a compelling interest,” Schumer has written. “If ever there was a compelling state interest, it is to prevent discrimination … in the name of religious freedom or anything else.”

There’s another, more basic problem with the application of RFRA-style state marriages to religiously-based objections to marriage equality. I happen to be a religious believer — Roman Catholic — who supports same-sex unions because I also believe that the ability to marry the person you love is a fundamental human right. It is categorically unjust to deny gays or lesbians the material and emotional benefits of an affectionate civil union and the stable household and family it can create.

I certainly do not question the right of my church or any other for that matter to set the bounds of sacramental marriage. I think it also is true that sincerely religious people more traditionally inclined than I am can have fundamental reservations about marriage equality that do not involve homophobia. For that reason it is absolutely necessary that the right to conduct sacramental marriage according to the dictates of their faith be left to the clergy and protected from any government intervention. Even having to argue this carries a strong whiff of red herring, since no one is talking about intruding into sacramental marriage. The issue here is civil marriage and its parameters—like the laws of contract, securities fraud and traffic regulation—are set by human and not divine lawgivers.

No one to my knowledge ever has suggested that a priest, rabbi or minister could or should be compelled to perform a religious ceremony of any kind in violation of their creed’s tenants. Civil society, on the other hand, operates by different standards and is not dependent, as Jefferson pointed out on religious opinion. After all, we still have with us various denominations that forbid interracial or interdenominational matrimony. Do we really want to say that “liberty of conscience” entitles such people to deny marriage licenses to a black woman and white man who wish to marry? Do we really believe that a florist who finds marriage between a Christian and a Jew distasteful should be entitled to refuse to sell them a flower arrangement?

Moreover, when it comes to cake bakers or florists or photographer, the notion that doing business with gay or lesbian couples amounts to “participation” in same-sex marriage is nonsensical. Baking a cake or sticking flowers in vases does not make one a “participant” in the wedding any more than the guy who changes your motor oil becomes a “participant” in your driving. These people simply are commercial vendors, and there is a compelling governmental interest in assuring that commerce is carried out in a non-discriminatory way.

As Jefferson’s writing demonstrates, the Founders and Framers envisioned just this sort of conflict between civil rights and religious opinion. James Madison, Jefferson’s great friend and the father of the Bill of Rights, noted that “[T]here remains [in some parts of the country] a strong bias towards the old error, that without some sort of alliance or coalition between Govt. & Religion neither can be duly supported. Such indeed is the tendency to such a coalition, and such its corrupting influence on both parties, that the danger cannot be too carefully guarded against.”

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