Balancing gay and lesbian rights with religious liberty protections is not as much about the give-and-take of compromise as it is about considering one another’s perspective. Most religious believers are not looking for a license to discriminate any more than most LGBT are seeking to overthrow the First Amendment.
To be clear, this debate is not about whether individuals should have religious “exemptions” to discriminate against LGBT. In fact, that’s contrary to religious teachings. Believing that “all are alike unto God” requires treating one another with equal dignity and respect. There’s no “exemption” from the commandment, “Thou shalt love thy neighbor as thyself.”
Religious teachings have been the most powerful “nondiscrimination” force in the history of the world. Religious belief in the brotherhood of mankind infused the Founder’s declaration that “all men are created equal,” the abolitionist motto “Am I not a man and a brother?” and the Civil Rights anthem “We Shall Overcome.” History teaches that religious liberty is the source, not the impediment, of nondiscrimination.
Some have described this debate as whether a waiter, hotel manager or nurse should be able to deny services to gay couples because of religious beliefs. But what religious doctrine teaches that you shouldn’t provide food, housing or medical care to someone because they’re gay?
Countless religious organizations regularly provide such basic necessities to anyone in need, regardless of sexual orientation. For Christians, those charitable acts are no doubt inspired by Jesus’ teaching: “For I was an hungered, and ye gave me meat … I was a stranger, and ye took me in … I was sick, and ye visited me.”
Simply put, not discriminating is consistent with religious teaching. But in some cases, nondiscrimination laws/policies are being misused to discriminate against religious believers. California state judges have been barred from Boy Scout membership, people have lost jobs for publicly supporting traditional marriage, and business owners have been sued for not promoting or participating in same-sex weddings.
Consider the controversy over wedding-related services. While a debate over cakes and flower arrangements may seem trivial, there’s no question that for those involved, it has profound significance. For same-sex couples, what day could matter more than their wedding? And for religious believers, what business could matter more than their conscience?
Barronelle Stutzman, a florist and great-grandmother, never thought her religious beliefs exempted her from employing or serving gays. As a florist for 40 years, she’s never refused her gay employees or customers. But when she was asked by a longtime customer to arrange the flowers for his same-sex wedding, her conscience objected to personally participating in the wedding. She would have sold him the flowers but felt she could not do the arrangements. As her attorneys put it, “Buying generic products and basic services is not the same thing as asking someone to create artistic works or expression to promote or celebrate an event.”
We should be sensitive to how same-sex couples would feel about someone declining to participate in their wedding. But when nondiscrimination laws are used to silence speech because it might offend someone, our First Amendment rights are imperiled. What if, in the alternative, a florist responds, “I will arrange the flowers for your wedding, but I feel you should know it is my religious belief that marriage is only between a man and woman.” If that response is just as likely to offend (if not more), and is protected First Amendment expression, why should politely declining to do the arrangements be punishable?
So here’s a possible starting point for amending nondiscrimination legislation to protect religious liberty: “Declining to promote a message or participate in an activity against one’s religious beliefs is not discrimination. Nor is expressing one’s own religious beliefs.”
Could this become the exception that swallows the rule? In theory, LGBT have a valid point that religious “exemptions” could eviscerate nondiscrimination laws. Many businesses, they fear, would deny services, citing religious opposition. But in practice, religious believers, like the Washington florist, are not seeking exemptions to deny services generally; they’re seeking protections for conscience — specifically, protections against being forced to promote messages or participate in activities against their religious beliefs. That’s a relatively rare set of circumstances.
Serving food, giving medical care or providing countless other services to LGBT does not force religious believers to promote messages or participate in activities against their beliefs. If anything, it manifests them. Similarly, offering employment or providing housing to LGBT does not conflict with religious teaching unless it’s a religious organization or university that has a right to require behavior consistent with its moral standards. Significantly, nondiscrimination laws typically do not apply to employers with fewer than 15 employees or landlords with fewer than five units. But other than these exceptions for close quarters, most employers and landlords owe their employees and tenants a measure of privacy.
LGBT should not fear reprisals for publicly acknowledging their legal relationships. But neither should the religious fear reprisals for acknowledging their beliefs and acting according to conscience. Fairness for all requires mutual understanding.
Michael Erickson is an attorney. Jenet Erickson is a family sciences researcher and a former assistant professor at Brigham Young University. They live in Salt Lake City.