‘Religious Liberty’ Does Not Give People a License to Discriminate
Earlier this week lawmakers in nine state legislatures launched “religious freedom” caucuses aimed at helping “legislators set state-specific agendas for strengthening religious liberties.”
Religious liberty should be protected. It should be safeguarded. And it should be valued. But if this past year is any indication of what these caucuses’ real policy goals are, their efforts will not be about protecting, safeguarding, and valuing religious liberty. Instead, they will be about promoting an agenda that rolls back women’s health and rights and curtails equality for gay Americans, all behind the guise of “religious liberty.”
Two organizations in particular—the Family Research Council and the Liberty Institute—have been at the forefront of promoting this agenda. In a report released earlier this summer, titled “The Survey of Religious Hostility in America,” these organizations highlight hundreds of examples of what they consider to be threats to religious freedom in the United States today.
But many of these cases are not at all about religious freedom. They are instead about people trying to use religion to discriminate against gay individuals, even when doing so is illegal under state law—unfortunately it is not illegal in a majority of states or under federal law—and has nothing to do with the actual practice of religion. Just because a restaurant owner is religiously opposed to same-sex relationships, for example, does not give that owner a legal right to deny a lesbian couple service in his or her establishment.
Still, organizations such as the Family Research Council and the Liberty Institute insist that the First Amendment gives people a license to use religion to discriminate against others. By this logic, people also have a right to discriminate against someone because they are Jewish, because they are African American, or because they are a woman, as long as there is a “religious freedom” rationale behind doing so.
Let us examine three ways in which these organizations claim “hostility” to religious freedoms, when in reality they are instead attempting to legitimize using religion to discriminate against gay Americans.
Religious liberty does not allow businesses to discriminate against gay customers
Opponents of gay equality—including the Family Research Council and the Liberty Institute—believe business owners should have a legal right to discriminate against gay customers, all in the name of “religious liberty.”
Included in these organizations’ report, for example, is Cervelli v. Aloha Bed & Breakfast. In this case, Diane Cervelli and Taeko Bufford, a lesbian couple, were turned away by Aloha Bed & Breakfast in Hawaii during a trip to visit their close friend and her newborn baby. The owner of the bed and breakfast explicitly stated that same-sex relationships were “detestable,” and that they “defile our land.” For this reason, the owner denied the couple accommodations at her hotel, which stands in clear violation of Hawaii’s public accommodation law prohibiting any hotel or “other establishment that provides lodging to transient guests” from discriminating based on race, sex, sexual orientation, gender identity, religion, ancestry, or disability. As a result, Cervelli and Bufford, represented by Lambda Legal, have filed a sexual orientation discrimination suit against the bed and breakfast.
The Cervelli suit is ongoing. But if the ruling in Elane Photography, LLC v. Willock—also included in the Family Research Council and Liberty Institute report—is any indication, however, the courts will rule in Cervelli and Bufford’s favor, since this is clearly a case of sexual orientation discrimination. In the Elane case, a professional photographer in New Mexico refused to take pictures of a same-sex couple’s commitment ceremony, arguing that doing so was a violation of her religious freedoms. As expected, the New Mexico Court of Appeals found that doing so did not harm the photographer’s religious liberties but instead that her refusal constituted a clear violation of the state’s Human Rights Act, which prohibits discriminating in areas of public accommodation on the basis of sexual orientation.
Most of us recognize discrimination when we see it. These are two clear-cut examples of discrimination on the basis of sexual orientation. If an interracial couple were denied lodging at a bed and breakfast or denied service by a photographer, we would similarly recognize that as discrimination, plain and simple. Any arguments using religion as a way to discriminate against interracial couples would be absurd, just as they are when people try to use religion to discriminate against same-sex couples.
Religious liberty does not allow mental health professionals to deny services to gay clients
According to the American Counseling Association’s code of ethics, counselors are prohibited from condoning or engaging in discrimination based on sexual orientation and gender identity, among other categories. It continues to say that counselors cannot “discriminate against clients, students … in a manner that has a negative impact on these persons.” So when Julea Ward, a graduate student at Eastern Michigan State University studying counseling, refused to work with a client in a same-sex relationship, Ward was dismissed because of her failure to comply with the American Counseling Association code of ethics.
All counselors have a right to practice their religion freely. They do not, however, have the right to deny mental health services to clients based on those beliefs. Doing so would set a dangerous precedent. Just as Ward, a would-be high school counselor, would not be able to deny services to a Muslim student based on her religious objections, she certainly should not be allowed to deny services to gay students based on those objections. Given the high rates of bullying and harassment that gay students face at school, her refusal to serve gay clients clearly has a “negative impact” on those clients and stands in clear violation of the American Counseling Association code of ethics.
After a lower court upheld Ward’s dismissal, the 6th Circuit Court of Appeals remanded the case to the Eastern District of Michigan to determine whether Ward was indeed dismissed because she failed to comply with the code of ethics.
Religious liberty does not allow adoption agencies to deny a child a loving home
If their report is any indication, the Family Research Council and the Liberty Institute also believe adoption providers should have a legal right to keep children in the adoption and foster-care system rather than place them with responsible, caring, and loving same-sex couples.
In their report, these two organizations include last year’s legal battle in Illinois between Catholic-affiliated charities and the Illinois Department of Children and Family Services. Following the passage of a civil unions bill earlier that year, Catholic Charities in Illinois said it would refuse to let same-sex couples adopt children and would instead refer them elsewhere. (For what it’s worth, 6 in 10 Catholics favor allowing same-sex couples to adopt children). For its part, the state of Illinois told Catholic Charities that doing so violated the state’s civil unions bill and the state’s nondiscrimination law prohibiting discrimination on the basis of sexual orientation.
Catholic Charities provides a vital social service in many states by running adoption and foster care programs. By receiving public funds to provide those services, however, they have a responsibility to both place children in loving and stable homes and comply with state laws. If service providers are unwilling to comply with the law, then the state should not award taxpayer dollars to them. And that’s exactly what happened in Illinois: Rather than place these children in homes irrespective of parent’s sexual orientation, Catholic Charities instead dropped its lawsuit and ended its historic relationship with the state. Thereafter it began to refer children to other adoption service providers that were willing to comply with Illinois’s nondiscrimination laws instead of following the nondiscrimination laws itself.
This is not a case of religious “hostility.” This is about ensuring that all of the 17,080 children in foster care in Illinois today can find a loving and stable home. Study after study confirms that same-sex parents are just as capable of raising mentally and physically healthy children as different-sex parents. Denying or delaying a child a home with parents—gay or straight—when receiving taxpayer dollars is both wrong and discriminatory.
Religious liberty and fairness for gay Americans are not mutually exclusive
Opponents of gay rights have historically undermined equality and fairness for gay Americans by directly attacking gay people themselves. But as the public has become more accepting of gay individuals, this tactic has become less and less successful. For this reason, opponents of equality are hiding behind the guise of “religious liberty” to perpetuate a discriminatory and unequal legal environment for gay people.
The First Amendment to the U.S. Constitution guarantees the ability to practice one’s religion free from government interference. It allows Americans to worship freely and bring their faith into the public square. But the cases noted above are not about religious liberty in the slightest. They are about people using religion to discriminate, and that should not be allowed to stand.
Crosby Burns is a Research Associate for the LGBT Research and Communications Project at the Center for American Progress.
 In this column, the term “gay” is an umbrella term that describes people that are gay, lesbian, or bisexual.
 While the Family Research Council and Liberty Institute report does not refer to transgender individuals, many organizations have opposed laws prohibiting, for example, discrimination based on gender identity using religious rationales similar to those highlighted in this column.