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POV: Religion Cannot Excuse Discrimination

Antigay laws in Arizona, elsewhere will flunk history’s scrutiny

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In recent weeks, the Arizona legislature passed a bill that would allow businesses to discriminate against sexual minorities based on the business owner’s religious beliefs. Ostensibly designed to protect an individual’s religious beliefs, the law would protect a bakery, for example, that refused to bake a cake for a same-sex wedding ceremony. While Arizona’s governor, Jan Brewer, vetoed the bill, a similar measure has been proposed in Missouri and other states. As quoted in USA Today, the sponsor of the Missouri bill, State Senator Wayne Wallingford, said, “There’s discrimination kind of on both sides. I certainly don’t want any discrimination in the workforce….But I’m also concerned about discrimination going the other direction.”

Wallingford expressed concern about “discrimination kind of on both sides,” but in fact, neither Missouri nor Arizona protects the rights of their LGBT citizens—lesbian, gay, bisexual, and transgendered. Right now, in those states, as well as 27 others, LGBT citizens have no protections against discrimination. An employer in these 29 states, including Arizona and Missouri, can fire an individual simply because she is a lesbian. A restaurant or bar in these states already can refuse to serve a customer because he is gay, and as of now, a baker need not bake a cake for a same-sex wedding. So why the perceived need for these laws?

Perhaps these legislators are making a statement, indicating that in their states, religious beliefs trump the rights of LGBT citizens. Perhaps the legislators are pandering to the antigay sentiments of their constituents. Regardless of motive, while these laws will have no practical effect in these states, they will send out a powerful message, namely, that discriminating against LGBT citizens, if religiously motivated, is protected by state law.

In fact, religious beliefs have formed the basis for much of the antigay sentiment in the United States and elsewhere. The Church of Jesus Christ of Latter Day Saints (Mormon) was the largest backer of Proposition 8 in California, the referendum that (temporarily) banned same-sex marriage. More ominously, evangelical groups are behind the antigay legislation just signed into law by Uganda’s president. The Uganda law punishes certain homosexual acts with life in prison.

Those who rely on religious beliefs to argue against equal rights for LGBT citizens are the latest in a long line of folks who have relied on religion to justify discrimination. The Southern Baptist Church found biblical support for slavery and segregation. Based on its own reading of the Bible, the Mormon Church did not grant its black members the right to fully participate in the church until 1978. The Dutch Reformed Church did not renounce its biblically based support for apartheid until 1998. The lesson here is that religious support for discrimination does not justify the discrimination nor immunize it from attack.

Today, in the United States, a business owner who refused to serve an African American customer based on religious beliefs would receive little public support. Likewise, no public outcry would arise in favor of the baker who refused to bake a cake for an interracial wedding. That sort of discrimination is universally condemned, yet discrimination against LGBT Americans is justified by relying on religion.

Supporters of the bills in Arizona and Missouri worry about the religious rights of their constituents, yet no antidiscrimination law could force a Catholic priest to perform a same-sex marriage or require a Southern Baptist church to accept a lesbian minister. The First Amendment’s protection of the free exercise of religion would protect these organizations from compromising their religious beliefs. Moreover, those states that have passed laws banning discrimination based on sexual orientation have included exemptions for religious organizations. The situations targeted by the Arizona law and the Missouri bill are different, however. These laws seek to countenance discrimination by a business that is already subject to numerous state and federal laws that restrict the business’ ability to discriminate in other contexts.

Then why pass these laws, laws that will have no practical effect? In many parts of the country, equal rights for LGBT Americans is not yet a majority viewpoint. I say “not yet” because, as with discrimination against African Americans, discrimination against LGBT Americans will, in time, be universally condemned. Those who propose laws that protect the right to discriminate will be relegated to the by-now overflowing dustbin of history. They will fall on the wrong side of a battle for equal rights that has been fought in America since its founding.

Robert Volk (LAW’78), a School of Law associate professor and director of LAW’s Legal Writing and Appellate Advocacy Program, can be reached at rvolk@bu.edu.

“POV” is an opinion page that provides timely commentaries from students, faculty, and staff on a variety of issues: on-campus, local, state, national, or international. Anyone interested in submitting a piece, which should be about 700 words long, should contact Rich Barlow at barlowr@bu.edu.

19 Comments

19 Comments on POV: Religion Cannot Excuse Discrimination

  • BU MBA on 03.04.2014 at 6:50 am

    Interesting how all of your examples cite Christian affiliated churches and denominations. As if Islam and Judaism are the models of inclusivity and acceptance.

    • XYZ on 03.04.2014 at 9:06 am

      I can tell you first hand that those affiliated with Islam and Judaism are not the ones pushing these bills, not the ones complaining, and not the ones with the gigantic ego that makes them think their religious views need to be codified in law. That’s why there are not examples cited.

      • Really? on 03.04.2014 at 9:35 am

        Please tell of this first hand knowledge.

        Also, please explain what specific religious views would be codified in law?

  • Really? on 03.04.2014 at 9:23 am

    It is interesting how our first right, freedom of religion, is diminished in this article to only apply to “organizations” in a very restricted context. However, our First Amendment rights are individual rights and religion is not and cannot be relegated to clergy in the context of a house of worship only.

    This was never an antigay bill it was a media twist. In places like New Mexico, individual business owners are having their constitutional rights violated by being forced to participate in same-sex ceremonies even if it violates their religious beliefs. This bill certainly would have helped protect the freedom of religion without ever harming gays. No one should be forced to bake a cake or photograph a gay wedding or any other ceremony that does not comport with their beliefs. There will always be plenty of others who are willing.

    If the tables were turned would it be okay for a gay business owner to be forced to cater an antigay event hosted by Fred Phelps and his “church” of hate?

    Make no mistake there are those in the gay marriage movement who are more than happy to deny people their constitutional rights, ironically, in the name of non-discrimination.

    • Dan Cusher on 03.04.2014 at 11:04 am

      “In places like New Mexico, individual business owners are having their constitutional rights violated by being forced to participate in same-sex ceremonies even if it violates their religious beliefs.”

      Can you cite some specific examples of this?

        • Dan Cusher on 03.05.2014 at 12:34 pm

          All three of those links are opinion articles from very right-wing biased websites and don’t contain very many details about what actually happened. Can you cite any detailed accounts of the incidents, preferably from sources that don’t display severe bias?

          • Really? on 03.06.2014 at 9:13 am

            The details of the case and the legal decisions are all there and easily searchable (I just gave you the first 30 seconds of a google search). If it was from a liberal outlet I am sure you would not have a problem.

            Is it really that hard to read?

            But here is a biased on from USAToday for you: http://www.usatoday.com/story/news/nation/2014/02/27/arizona-religion-gays-lesbians-supreme-court/5872879/

            Here is some refreshingly rational balance from a supporter for gay rights:

            http://www.forbes.com/sites/ilyashapiro/2014/03/02/9-reasons-why-i-support-both-marriage-equality-and-arizonas-religious-liberty-bill/

            And here is the NYT on the New Mexico case:

            http://www.nytimes.com/2013/11/19/us/weighing-free-speech-in-refusal-to-photograph-ceremony.html?_r=2&

          • Dan Cusher on 03.06.2014 at 3:47 pm

            Those are a little better, thanks. The Forbes article was more opinion, but it linked to the text of the law, which was very short really helpful in understanding what’s going on here (http://www.azleg.gov/legtext/51leg/2r/bills/sb1062p.pdf).

            I just don’t see any pressing need for this law, just a desire from a small handful of businesses to deny services to gays. The text of law is very broad and doesn’t mention gays or same-sex marriage, but the real issue is clearly ONLY about people wanting to deny services to gays (ALL of the articles you provided were about same-sex weddings). This is just thinly-veiled discrimination based on sexual orientation. Counterexamples have been given about Jews being forced to provide services to Nazis, or your example about gays and Fred Phelps, but these things are simply not happening and there is no reason to believe that they ever would. Why are we making laws about things we don’t ever expect to happen? This law is ONLY about a small handful of businesses who want to deny services to gays.

            And, anyway, how does it violate the baker’s religious beliefs to bake a cake for a same-sex wedding? Where in the Bible does it say, “Thou shalt not provide cakes to a man who lieth with mankind”? I’m just saying, if he’s a “True Christian,” he should also deny his services to weddings where the bride is wearing a dress of mixed fiber (Deuteronomy 22:11), weddings that serve pork (Leviticus 11:8) or shellfish (Leviticus 11:10), weddings where at least one member of the couple is divorced (Mark 10:9), weddings where anyone in attendance has had a testicle removed (Deuteronomy 23:1), or weddings where the bride actually wears a wedding dress or jewelry at all, or gets her hair done (Timothy 2:9). There is at least just as much biblical precedence for these cases as for the same-sex wedding case.

            There’s really nothing religious about it. It’s just so overwhelmingly about hating gays.

          • Really? on 03.07.2014 at 9:09 am

            Hi Dan,

            The issue here is perception. There is this idea that people want to deny service to gays or anyone else. But the real issue is that, whether you agree with it or not, Religious Freedom is a Constitutional Right and gay marriage is a very new, non-constitutional right that is based on redefining an institution that is primarily religious with a civil recognition. So what the concern is, and it is a legitimate concern, is not denying gays anything, but forcing business owners, against their deeply held beliefs to go against those beliefs because a new right has been created. There should be conscience protections. That is not unreasonable.

            If a particular business owner was trying to prevent a gay ceremony from happening your position would be correct. Where you are wrong, or misunderstanding the problem is about whose rights are being violated. All these people want is to not be forced to participate in something, something that has never existed in human history before, that would violate their beliefs.

            So should someone who simply has a business be forced to participate in a ceremony that would violate their conscience simply because they have a business?

            To put a finer point on it. Should a devout Catholic OB/GYN be forced to perform an abortion on someone who requests it simply because he is qualified and his facility is licensed to perform such a procedure? Or should be free to limit the scope of his services to comply with his own person freedom? I am sure you would the latter.

            So how is this any different? At what point will a licensed JP be forced to perform marriages that she disagrees with? Give it 5 years and I guarantee you Churches, Synagogues and Mosques will have their tax exempt status threatened because they refuse to perform a gay ceremony for one of their congregants.

            Simply put, when a knew right is created you cannot bully and walk all over someone else’s rights in the name of tolerance and then (not you personally) scream discrimination and draw unjust comparisons to Jim Crow laws etc.

    • Visitor on 09.18.2014 at 7:16 pm

      Having little patience with “reverse intolerance” I’m disappointed in the spin of the media who wishes to extend rights for some, and savagely curtailing them for another. If your beliefs regarding gay rights restrict or inhibit another’s religious rights, then you’re a hypocrite who are accusing “them” of exactly what you are doing. Stings, doesn’t it? Look in the mirror.

  • Rubes on 03.04.2014 at 11:21 am

    I am a Christian but I don’t agree with this law because it could too easily be abused. Nor do I agree with so called “Christians” or others who think that they are somehow doing God a favor by being less than kind to any people of any sort. Jesus Christ’s example was to be a kind and loving servant to everybody, no matter who they were or what they had done. Except for maybe the Pharisees and the religious establishment, whom He called “hypocrites.”

  • Terrier16 on 03.04.2014 at 11:36 am

    It’s the Christian organizations who fund these bills and politicians. I’m from California, and the whole prop 8 propaganda was pushed by the Mormon Church in Utah. It wasn’t well enough to keep Utah anti-gay, they had to expand their ideologies into CA politics. Which verse in the Bible was it that prohibits Christians from doing business with gays again? I couldn’t find it. In fact, I couldn’t find any mention of gays by Jesus anywhere. Maybe because he only hung out with prostitutes and criminals. Who knows. They realize that as a business owner, you don’t actually have to become gay to sell a cake to a gay person, right? You can still be a straight Christian and do business.

    • Really? on 03.04.2014 at 11:54 am

      There was widespread support of Prop 8 and it passed overwhelmingly. It was not just Mormons. And it was the people of CA in CA who voted for it. It was an activist gay judge who (through an act of judicial activism) that overturned the will of the people.

  • Kevin Shoe on 03.04.2014 at 11:52 am

    Consider two parties: a one pro-gay and one non-pro-gay. Each party has their own set of beliefs, religious or not. It would make sense to say under America’s “first right” that each party’s belief system should be just as legal as the other, but these belief systems cannot really be equally legal, because they are conflicting. The government will eventually have to pick a side.

    Now, I would argue that the party that is advocating for acceptance of an act that would not harm anyone else and bring happiness to many people (the pro-gay one) is the obvious one to pick. The other party is advocating for discrimination against people who are trying to pursue a basic human happiness and not harming others while they do it.

  • Aldris Torvalds on 03.04.2014 at 4:54 pm

    I can’t wrap my head around this. If they start saying that you can discriminate against people so long as it’s against your religious beliefs, why would it stop at LGBT individuals and couples? That’s just the people they want to refuse service to at the moment… it could just as easily be blacks, non-Christians, foreigners… how can we have anti-discrimination laws if we’re undermining their basis by making religious liberty an excuse for businesses to refuse service? This seems like a real mess to me.

  • Zachary W Bos on 03.05.2014 at 9:18 am

    “Those who propose laws that protect the right to discriminate will be relegated to the by-now overflowing dustbin of history. They will fall on the wrong side of a battle for equal rights that has been fought in America since its founding.”

    Hear, hear! Well put, Prof. Volk.

    • Dan Cusher on 03.05.2014 at 12:52 pm

      Amen! A short but powerful quote.

  • Kyle on 03.10.2014 at 6:44 pm

    I don’t feel there should be a law for or against the choices of businesses. However, in the passing of this law, I feel that businesses should be allowed to choose who they serve to. However, with that comes repercussions, such as people not going to those places because of their views. You won’t see national chains do this because they will lose their franchise tag because places like McDonalds won’t attach their name to a discriminatory place. This law only will go in effect to Arizona only companies.

    These places will most likely close. There was a place in central Mass (in Oxford) who refused to serve a veteran because he didn’t allow dogs into his restaurant even though it was a service dog. The media attention caused this guy to lose (or come extremely close to losing) his restaurant. If people don’t eat at places that discriminate (maybe make these places post their denial of service)then they will not make money and either adapt or close. It is as simple as that.

    No one forces people to live anywhere either. If people don’t like the circumstances there, they can always move. If people move out of Arizona because they feel oppressed to that point, it will drive their economy down anyway causing change to occur.

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