How the push for gay rights is reshaping religious liberty in America
As gay rights rapidly expand, some religious conservatives worry that their ability to live their public lives according to their faith is being swept away. Part 1 of seven.
Rogelio V. Solis/AP
One year after the United States Supreme Court’s landmark same-sex marriage decision, the clash between gay rights advocates and religious conservatives is reshaping religious liberty in America.
Proponents of full and equal rights for gay men and lesbians are pushing to expand the marriage equality they won at the high court into broader, society-wide freedoms.
Religious conservatives are pushing back, worried that traditional religious values and protections they see as integral to the nation’s identity are being attacked as never before.
At stake are sharply divergent visions of the future of American society and the role of religious faith in that future.
Both sides feel they are victims. Both sides feel under threat.
For members of the gay community, their continuing vulnerability was brutally laid bare in June when a gunman inspired by the so-called Islamic State carried out the deadliest mass shooting in US history at a gay nightclub in Orlando, Fla.
In addition, gay rights activists charge that a series of religious protection laws considered by Republican lawmakers nationwide are little more than a license to discriminate against members of the lesbian, gay, bisexual, and transgender (LGBT) community.
Religious conservatives, meanwhile, look at the rapid expansion of gay rights during the past decade and wonder if their desire to continue living their lives in accord with long-held concepts of marriage and sexual morality are being inexorably swept away.
In court decision after court decision, they are being compelled to support behaviors that their faith condemns as immoral, they say.
The clash is about more than whether wedding vendors can refuse to serve same-sex couples or whether transgender Americans can choose which public toilet or shower room they wish to use, they say.
“Right now we are in a national debate about what sort of society we are going to have, and whether we are going to be able to live with one another,” says Russell Moore, president of the Ethics and Religious Liberty Commission of the Southern Baptist Convention.
“The real question here is going to be whether or not the sexual revolution will tolerate any dissent in the public sphere at all,” he says.
Even at a time when much more remains to be done to end discrimination and fully embrace the LGBT community, there is evidence that the worries of religious conservatives are not unfounded.
Religious colleges and nonprofits, for example, face new challenges to moral codes now seen in some states as discriminatory. Religious conservatives say that what was once considered a national virtue is now routinely belittled and denounced.
Evidence of erosion of religious protections extends well beyond the context of gay rights, analysts say.
- In implementing President Obama’s health care mandate, administration officials initially brushed aside the religious implications of requiring an organization of Catholic nuns, the Little Sisters of the Poor, to sanction insurance coverage of certain contraceptive methods that their church considers a form of abortion. (The case went to the US Supreme Court where the government, under pressure, conceded that it can grant a religious accommodation.)
- The state of California re-interpreted a regulation in a way that now requires churches in that state to pay for abortions for their employees. Traditionally, houses of worship have been exempt from such requirements. Several churches have filed suit complaining that requiring them to include cost-free abortions in their group health care plans violates their fundamental belief about the sanctity of life. State officials insist the requirement poses no significant burden on an objecting church’s religious exercise.
- Former Atlanta fire chief Kelvin Cochran wrote a Bible-study book in his free time that reflected his faith’s teaching about homosexuality. City officials decided the booklet was offensive and intolerant. They fired him.
- In a case in Olympia, Wash., a family-owned pharmacy objected on religious grounds to selling Plan B, an emergency contraceptive that they consider a form of abortion. State officials, working with Planned Parenthood, enacted a regulation requiring all pharmacists to distribute Plan B regardless of any religious objections. An appeals court upheld the regulation, and in June the Supreme Court declined to hear the case.
Commenting on the Supreme Court’s unwillingness to take up the pharmacy case, Justice Samuel Alito wrote: “If this is a sign of how religious liberty claims will be treated in the years ahead, those who value religious freedom have cause for great concern.”
He was joined in his dissent by Chief Justice John Roberts and Justice Clarence Thomas.
Justice Anthony Kennedy currently wields the fifth and deciding vote in cases involving gay rights, contraception, and abortion.
When the Supreme Court handed down its marriage equality decision last year, Justice Kennedy acknowledged that the landmark ruling would provoke a broader clash between LGBT activists and religious conservatives.
“It must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned,” Kennedy wrote in his majority opinion.
“The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths,” he added.
Some analysts viewed those comments as an attempt by Kennedy to reassure religious conservatives that the Supreme Court was not throwing them under the bus.
Chief Justice Roberts, however, did not find Kennedy’s words reassuring – and noted a key omission.
“The majority graciously suggests that religious believers may continue to ‘advocate’ and ‘teach’ their views of marriage,” he wrote in a dissenting opinion.
“The First Amendment guarantees, however, the freedom to exercise religion,” he said. “Ominously, that is not a word the majority uses.”
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Some 55 percent of Americans support same-sex marriage and 37 percent are opposed, according to a March poll by the Pew Research Center.
But sharp differences emerge among religious denominations. For example, 64 percent of white mainline Protestants support same-sex marriage, as do 58 percent of Catholics.
But only 27 percent of white evangelical Protestants and 39 percent of black Protestants support gay marriage.
In their campaign for equal rights in America, gay men and lesbians have argued persuasively that they are being targeted simply because of who they are – and who they love.
Many religious conservatives are now making a similar appeal. They argue that their faith is an essential part of their being, and that attempts to belittle their faith or confine it to the four walls of a church is to consign them to second-class citizenship.
“Just as it was unsympathetic to gay and lesbian couples to say, ‘Keep your relationship totally private,’ it is also highly unsympathetic to the religious believer to say, ‘You have a legal right to follow your belief in church but no right in any other realm of life, like charitable organizations or the workplace,’ ” says Thomas Berg, a professor at the University of St. Thomas School of Law in Minneapolis.
“There are some similarities in the kind of sympathy that gay and lesbian couples have increasingly and rightly received,” he says. “A form of that sympathy should also extend to the religious believer.”
The confrontation potentially embraces a wide range of faith-based nonprofit groups – including religious colleges, universities, hospitals, and social service organizations.
During last year’s oral argument at the Supreme Court over same-sex marriage, Solicitor General Donald Verrilli was asked whether a conservative religious college might lose its tax-exempt status if it refused to recognize same-sex marriages.
“It’s certainly going to be an issue,” the solicitor general told the justices. “I don’t deny that.”
The comment traveled like a rifle-shot across the country, serving notice that a high court decision establishing a constitutional right to same-sex marriage would lead to significantly larger challenges down the road for religious groups and people of faith.
Loss of the ability of donors to claim a tax exemption, for example, would make it more difficult for religious groups to raise money, forcing many to scale back faith-based operations or shut them down completely, analysts say.
“We are talking about tens of thousands of organizations and millions of people,” says John Inazu, a professor at Washington University Law School, and author of a new book, “Confident Pluralism.”
“The infrastructure for social services and charitable ministries in this country is enormously undergirded by religious institutions that have been contributing billions of dollars to our infrastructure,” Professor Inazu says, “and it is just not plausible that if you shut those down it is going to be replaced by something else out there in society.”
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By all accounts, LGBT rights are advancing in the most simple and direct way – by gay men and lesbians standing up and claiming their place in society.
In openly acknowledging their sexual orientation, they are forming new interpersonal relationships with a broader circle of people who no longer think of “gay” or “lesbian” as threatening or significantly different. They are fathers and mothers, brothers and sisters, sons and daughters, friends, neighbors, shop keepers, professionals, and colleagues at work.
“Knowing someone who is LGBT is the No. 1 predictor of how you feel about rights for LGBT people,” says Sarah Warbelow, legal director of the gay rights group Human Rights Campaign.
“Coming out is such a powerful process,” she says. “We are truly, equally distributed throughout society. We are of every race or religion, every socio-economic class. You find same-sex couples in rural Mississippi, and you find them in San Francisco.”
Just as this campaign has led to greater understanding and acceptance of LGBT people, some analysts say there is a corresponding lack of understanding and acceptance of religious conservatives.
“There is an assumption among many secular progressives that if religious conservatives are just given enough of a nudge through cultural pressure or coercive state action that religious conservatives will simply fold on their views on marriage and sexuality. That’s not going to happen,” says Mr. Moore of the Southern Baptist Convention.
“These views on marriage and sexuality aren’t ancillary to the faith. They are very clear in our sacred texts,” he says. “And they come with 2,000 years of continuous teaching. So religious people aren’t going to just ‘get with the spirit of the age’ on these issues.”
Although there has been progress on some fronts, it remains unclear how the confrontation between conservative religious beliefs and equal rights for the LGBT community will ultimately be resolved.
Professor Berg has spent years researching how to bring both sides in the dispute together.
At one point, there was a promising opening to negotiate compromise agreements: The LGBT community would get antidiscrimination laws to protect them in exchange for a limited set of exemptions that would also protect religious conservatives.
For example, one proposal would have offered religious exemptions for small businesses, provided they employed five or fewer people and there were alternative sources in the community for their product or service.
But that was before the Supreme Court’s marriage decision delivered a major victory – and momentum – to LGBT advocates.
“The Supreme Court decision took away whatever bargaining power the religious conservatives had on marriage-related exemptions,” Berg says.
Gay rights advocates are no longer willing to make such concessions, and religious conservatives are digging in their heels as well, he says.
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That kind of intransigence was on full display this past spring when legislative debates over LGBT rights and religious protections took place in more than half of the 50 states.
“This year we had nearly 200 bills aimed at allowing some degree of discrimination against the LGBT community and ultimately only a tiny fraction of those have passed and been signed into law,” says Ms. Warbelow of HRC.
Most states ended up taking no action. Three bills passed by lawmakers in Georgia, Virginia, and South Dakota were vetoed by the governors in those states.
North Carolina and Mississippi were the exceptions. Laws were passed and signed by the states’ governors. Both laws are under attack in the courts, and the Mississippi law has been blocked by a judge pending further litigation.
Lawmakers supporting greater protection for religious conservatives reject accusations that their legislation is designed to facilitate discrimination. From their perspective such bills are a shield to allow religious traditionalists space to live in accord with their deeply held beliefs about marriage without facing litigation or punishment from the government.
On the other side, LGBT rights advocates reject the shield analogy. Instead, they view these measures as a sword that can be used to disadvantage and discriminate against the LGBT community.
The standoff stems from a cruel irony.
Although marriage equality is now constitutionally mandated in all 50 states, only 22 states have enacted laws that bar discrimination based on sexual orientation. And only 18 of those states outlaw discrimination based on gender identity.
That means that in more than half the country a recently married same-sex couple could nonetheless be fired from their job or evicted from their apartment without any legal recourse because of their sexual orientation.
On the other side, conservative legislators are concerned that constituents’ traditional stance on marriage could make them vulnerable to the kind of looming showdown suggested in the solicitor general’s comment at the Supreme Court.
That was the experience of Catholic Charities of Boston. The group ran the largest adoption service in Massachusetts. In accord with a policy of the Catholic Church, the organization refused to place children with same-sex couples.
That policy violated a 1989 Massachusetts law that bars discrimination based on sexual orientation. Catholic Charities asked for a religious exemption.
The group wasn’t asking that all adoption agencies in Massachusetts follow a Catholic approach, only that Catholic Charities be allowed to operate its adoption agency in accord with its own religious precepts.
The request was rejected.
Rather than alter its religion-based policy, Catholic Charities closed its doors. The group said the decision to cease operations was a “deeply-felt issue of conscience,” a recognition that the Catholic agency was ultimately answerable to a higher authority.
Another example involves Gordon College, a conservative Christian school north of Boston. The school requires its 1,700 students and 600 faculty and staff members to agree to a code of behavioral standards that prohibits sexual relations outside marriage and any homosexual practice.
Critics of the college’s religious standards accused the school of discrimination based on sexual orientation.
As a result of that accusation, the city of Salem cancelled a contract that allowed the college to help maintain the city’s Old Town Hall. The Peabody-Essex Museum in Salem also severed ties with the school, and the New England Association of Schools and Colleges – which reviews college accreditation – expressed concern about the school’s ban on homosexual practice.
After a year-long review, the school did not lose its accreditation and the behavior code remains intact. But some analysts believe the issue will resurface and pressure will intensify for the college to change its religious stance to conform with the state’s anti-discrimination mandate.
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Not all bills passed by a state legislature this year to protect religious freedom actually made it into state law.
The Georgia legislature passed a law designed to preemptively shield religious leaders, faith-based institutions, and private businesses from state punishment should they refuse for religious reasons to solemnize or serve a same-sex wedding.
Georgia has no antidiscrimination law covering sexual orientation, meaning there would be no grounds for the state to take action against a religious group or force the clergy to perform a same-sex wedding.
Republican Gov. Nathan Deal, under heavy pressure of threatened corporate boycotts, vetoed the law.
He said that since Georgia has no antidiscrimination law, the extra legal protections for religious conservatives were not needed.
“While most people would agree that government should not force such actions [by religious adherents], there has not been a single instance of such taking place in Georgia,” the governor said in announcing his veto.
Others disagree with the veto, saying such laws are needed. Religious conservatives in Georgia and elsewhere see such legislation in the broader context of a nationwide struggle by people of faith to defend their place in America.
“A lot of us are sort of coming to the conclusion that we are losing,” says Denny Burk, professor of biblical studies at the Southern Baptist Theological Seminary in Louisville, Ky.
“We know that a lot of us are going to have to suffer for trying to be faithful,” he says. “Some people are going to have to go out of business and some people are going to have to pay fines, and that’s just going to be the new reality going forward,” Professor Burk says.
David Parker, pastor of the Central United Protestant Church in Richland, Wash., says he is also concerned about what he sees as intense challenges to faith and the faithful.
“We have seen our nation becoming more polarized politically, racially, theologically,” he says. “We are at this unsettling fray right now and it seems to be getting worse not better.”
But the Rev. Parker says it is nothing mankind hasn’t faced before. “The long-shot of history – and biblical history – showcases the cycles of humanity and culture,” he says. “We are just in another one of those cycles where you go into low places and then people wake up and say, ‘What were we thinking?’ ”
He adds: “These cycles happen in hundreds of years and through the millennia, so this is not new to planet earth.”
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Part 1: How the push for gay rights is reshaping religious liberty in America
Part 2: A florist caught between faith and financial ruin
Part 3: Behind legal fight over religious liberty, a question of conscience
Part 4: In Mississippi gay rights battle, both sides feel they are losing
Part 5: Is wedding photography art? A wrinkle in religious liberty debate.
Part 6: For those on front lines of religious liberty battle, a very human cost
Part 7: A push to help gay couples find wedding joy – without rejection