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Richard Davis: Gay rights, religious rights can share common ground

Tom Witt, executive director of Equality Kansas, the state's leading gay-rights group, at a Statehouse rally Tuesday, Feb. 25, 2014, in Topeka, Kan.
Tom Witt, executive director of Equality Kansas, the state's leading gay-rights group, at a Statehouse rally Tuesday, Feb. 25, 2014, in Topeka, Kan.
John Hanna, Associated Press

The decision by The Church of Jesus Christ of Latter-day Saints last week to support non-discrimination ordinances as long as they include religious exemptions raises the question of whether and how to accommodate gay rights and religious beliefs. The LDS Church is encouraging legislators to find ways to achieve that balance. Is it possible to do so?

First, it is essential to understand that there are two fundamental, conflicting rights at stake and not just one. The right of gays and lesbians to be treated with dignity and receive public services as anyone does is an important right to sustain. That right has been denied throughout history and only now is beginning to be accorded its proper place.

However, a similar, and equal, right is the ability of an individual to practice his or her religious beliefs, regardless of how unpopular they may be. This right is enshrined in the First Amendment, but still has had a checkered history in implementation. Catholics, Mormons, Jews and Jehovah’s Witnesses, to name a few, can testify to that. For religious people, religion defines an identity, not dissimilar to how a gay person would do so.

Religious freedoms are not new — they are as old as the republic itself. And religious exemptions are part of legislation legalizing same-sex marriage in states such as Maryland, New Hampshire and New York. Similarly, non-discrimination ordinances have offered religious exemptions.

However, some advocates of same-sex marriage and non-discrimination ordinances object to any such exemptions, fearing they will offer a cover for any kind of discrimination and weaken laws asserting gay rights. Those fears are not unfounded if gay-rights legislation is essentially unenforceable due to religious exemptions.

Nevertheless, here are three reasons the LGBT community should support religious exemptions:

One is freedom of religion is a tenuous right that benefits all. As I mentioned above, minority religions have been subject to officially sanctioned discrimination, much like gays and lesbians. Indeed, it was only a dozen years ago that the U.S. Supreme Court recognized the right of religious groups to go proselytizing door to door, a favorite tactic of minority religions. A failure to add religious exemptions undermines religious protections for all Americans, including gays and lesbians who are religious. All citizens are harmed by a weak First Amendment.

A second is the affinity gays and lesbians should feel with those who are told to keep their beliefs and practices outside the public square. Some LGBT advocates are arguing that religious persons can practice their anti-marriage equality beliefs at home. But that sounds very similar to society’s treatment of gays. Stay in the closet. Don’t go out in the public square. The answer to society’s exclusion of gays from the public square should not be a subsequent and parallel banishment of religious opponents of same-sex marriage. That is merely trading one type of exclusion for another. Instead, we need to recognize the public square is full of diverse people who will differ and sometimes even offend one another.

A third reason is simply an appeal to the practical. Religious exemptions build support for gay rights. Without such exemptions, a backlash will occur that will undo what the LGBT community has accomplished. The growing support for gay rights among Americans over the past decade easily can be erased. Some religious groups already are mobilizing to oppose implementation of court orders. One of the arguments these groups will use is that religious individuals will be compelled to violate their own religious beliefs in providing services to gay and lesbian couples. Including religious exemptions removes that argument.

Legislators across the nation need to find legislation that strikes a balance that does not preserve rights for some and denies them for others. Religious rights and gay rights can co-exist if society is willing to accept the fact that the public square is for all.

Richard Davis is a professor of political science at Brigham Young University. His opinions do not necessarily reflect those of BYU.