Without LGBT rights, religious freedom fails
April 14, 2016
By Charles C. Haynes
Inside the First Amendment
This week Gov. Pat McCrory of North Carolina scrambled to contain the damage caused by passage of a state law limiting bathroom access for transgender people and eliminating local anti-discrimination ordinances based on sexual orientation.
Under mounting pressure from civil liberties advocates and business interests, McCrory made what critics called cosmetic changes, notably issuing an executive order expanding the state's employment policy for state workers to cover sexual orientation and gender identity.
Opponents of the law say McCrory's actions are too little, too late. Absent repeal of the legislation, North Carolina will likely face more boycotts, protests and pushback from businesses threatening to cancel investments in the state.
The North Carolina legislation does not explicitly address religious freedom, but the media bundle it with the rash of religious freedom and anti-LGBT bills being introduced in state legislatures throughout the nation — more than 200 this year alone, according to the Human Rights Campaign Fund.
Although different in content and approach, these laws are all part of a national effort by religious conservatives to contain the advance of LGBT rights in the wake of the U.S. Supreme Court's decision affirming the constitutionality of same-sex marriage.
Last month, Mississippi's governor signed into law the most draconian of all the religious freedom bills, allowing religious objectors, including private business owners, to refuse a wide range of products and services to LGBT people. Mississippi now faces a growing backlash from the state's largest employers, spelling big trouble for the already troubled Mississippi economy. Georgia recently avoided this fate when Gov. Nathan Deal vetoed a religious freedom bill passed by the state legislature earlier this year.
North Carolina, Mississippi, Georgia and other states with bitter, divisive and destructive battles over LGBT and religious freedom legislation are all states with no statewide civil rights laws that include sexual orientation and gender identity.
In other words, majorities of state legislators in these states want religious freedom for themselves, but are unwilling to ensure equality for LGBT people. A same-sex couple in Mississippi or North Carolina can get married today but get fired or evicted tomorrow.
This lack of reciprocity makes reasonable and balanced deliberations about bathroom privacy, religious accommodations for religiously affiliated groups or narrowly tailored opt-outs for county clerks virtually impossible in states where LGBT people have no rights — and thus no real place at the bargaining table.
Last year, Indiana learned the hard way that without first protecting LGBT people, religious freedom laws backfire. After the governor signed a religious freedom law, the nationwide backlash was swift and overwhelming. This year, faced with the loss of conferences, business investment, sports events and more, the legislature is considering a nondiscrimination bill protecting LGBT people and providing some religious exemptions.
Religious conservatives in Utah took a very different approach by joining with people from all sides to find common ground. Last March, after months of negotiation, Utah Gov. Gary Herbert signed into law compromise legislation protecting LGBT people from discrimination in housing and employment while also providing exemptions for religious institutions and protections for religious speech.
Although Utah's law can't be replicated everywhere since laws and conditions vary widely from state to state, Utah's spirit of compromise — the willingness to seek a balance between LGBT rights and religious accommodations — is a model for how every state can find a shared solution if there is political will to do so.
Despite the harm opposition to LGBT protections does to the cause of religious freedom in states like North Carolina and Mississippi, many religious conservatives continue to adamantly oppose nondiscrimination laws for LGBT people. Out of religious conviction, they remain convinced that such laws would signal societal acceptance of what they consider a "lifestyle choice" that is sinful, wrong and dangerous.
But it escapes me why people of faith would countenance discrimination against any person, however much they disagree with who they are or who they love.
In a pluralistic democracy, people can and should debate differences about religion, sexual orientation and gender identity. But our common goal must be public policies that uphold both religious freedom and equality — two constitutional principles grounded in the inviolable dignity of every human being.
Charles C. Haynes is vice president of the Newseum Institute and founding director of the Religious Freedom Center. E-mail: firstname.lastname@example.orgWeb: www.religiousfreedomcenter.org Twitter: @hayneschaynes.