Religion: The Elephant in the Room Behind Anti-Gay Discrimination’

The Founding Fathers had a very limited concept of freedom of religion.  It meant (i) being able to worship in the religion or denomination of one's choice, and (ii) not being forced to financially support an established church - - e.g., in colonial Virginia, all citizens paid taxes to support the Church of England churches whether they were members or not.  Religious belief did not exempt one from compliance with the the civil laws applicable to all citizens nor did it entitle religious institution to tax-exempt status.  

Beto O'Rourke is being pummeled for stating that  anti-gay churches should lose their tax exempt status, yet their tax -exempt status comes not from their religious nature but instead from the generally false assumption that they engage in charitable work and, because this status as a charity, deserve indirect public support via an exemption from paying taxes. If one looks at where the money of many religious institutions - churches in particular - often little or nothing goes to charitable works. Instead, moneys go to support facilities that are akin to a private club (often euphemistically called "fellowship halls") and activities that are in no wise involved in actual worship).  To the extent many of these churches engage in "education" it is actually indoctrination aimed at engendering hatred toward those who are not members of their "club" and/or who do not subscribe to their ignorance based beliefs.   

Turning back to the cases now before the U.S. Supreme Court that will decide whether or not the Title VII of the Civil Rights Act of 1964, the real issue - despite the supposed focus on the wording of that statute - ultimately comes down to evangelical Christians wanting to be above the law and entitled to use their real or feigned religious belief as a weapon against those they hate.  A piece in Religion Dispatches looks at this elephant in the room that opponents to LGBT rights are trying to make invisible.  Here are article highlights (note the disingenuous question by Chief Justice Roberts which ignores the reality that having gay or transgender employees in no way impinges on one's right to worship in the church or temple of their choice): 

“I think this whole category is the elephant in the room.”

That’s what Justice Stephen Breyer said, referring to religion and religious exemptions from laws that ban discrimination against LGBTQ people, during arguments Tuesday at the Supreme Court.

Breyer’s exchange with Solicitor General Noel Francisco came as battle between religious exemptions and LGBT rights returned to the Court in the form of three cases involving employees fired for being gay or transgender.

These disputes, . . . . turn on the interpretation of a provision of Title VII of the Civil Rights Act of 1964. The law provides that employers may not discriminate “because of” an employee’s or prospective employee’s “race, color, religion, sex, or national origin.” The fired employees are arguing that courts should interpret the word “sex” to include sexual orientation and gender identity, . . .

Both sides marshalled their favorite methods of statutory interpretation, disagreeing sharply on how courts might determine whether an employer had discriminated within the meaning of Title VII.

There’s much to say about these arguments, including the question of whether the employers were saying, in effect, that it is acceptable to discriminate against LGBTQ people so long as they discriminate against all LGBTQ people. But for those interested in the intersection of law and religion, one of the most curious features of Tuesday’s arguments was the way in which religion was rarely mentioned, yet somehow never quite out of the picture.

Chief Justice John Roberts raised the question of religious liberty in the first set of arguments the Court heard, concerning the gay employees who were fired on account of their sexual orientation. . . . How can the Court protect religious liberty in a nuanced way if its only choice is whether or not to read Title VII to encompass discrimination on the basis of sexual orientation?

Justice Breyer introduced hypotheticals about religion into both sets of arguments. Suppose that an employer objects neither to Catholics nor to Jews per se, he imagined, but is deeply opposed to interreligious marriage. If that employer fires a Catholic employee for marrying a Jew, how is that not discrimination on the basis of religion if the employer would not have fired the employee for marrying a Catholic? The same logic, Breyer suggested, applies here.

As Justice Breyer rightly observed, religion was lurking just under the surface of Tuesday’s arguments. Many disputes in recent years have involved claims that employers who hold certain religious beliefs deserve exemptions from generally applicable laws, including nondiscrimination laws designed to protect LGBTQ people.

But despite purporting not to be about religion, Tuesday’s cases attracted input from religious groups across the ideological spectrum. National evangelical associations and the U.S. Conference of Catholic Bishops filed amicus briefs on behalf of the employers, while progressive Muslim groups, Jewish groups, and liberal Protestant churches did so for the employees. As they did in Cakeshop and cases like it, the former trotted out visions of the coercion that they believe religious entities would be subject to if the Court were to read sexual orientation and gender identity into Title VII. The latter affirmed that their faith mandates that they recognize the inherent dignity of all people and seek to prohibit discrimination in a pluralistic public square.

Sometime in the first half of 2020, amidst a campaign that has already featured the country’s first out candidate for the presidency, the Court will hand down rulings that may well decline to expand LGBTQ rights in the context of private-sector employment.

It’s likely that the opinions will have little to say about religion, and Tuesday’s arguments only gingerly touched on a topic that evokes passion and pain on all sides. But whichever way the Court rules, it will not resolve the deep conflicts between conservative religious activism and LGBTQ rights that have divided the nation.

What we are seeing is an effort to far expand the freedom of religion envisioned by the Founders and turn it into a special right for certain religious groups that puts them above the law.  Sadly, it is more of the same horrible legacy that religion has visited on mankind through the centuries be it religious wars in the ancient world, the Spanish (and later American) massacres of Native Americans who were labeled "heathens", the Catholic massacres of Protestants in France during the 1600's, the 30's Years War in Europe, massacres between Hindus and Muslims, the religious wars in England and more recently in Northern Ireland, or the Buddhist massacres of Rohingya Muslims in Myanmar (formerly Burma)

.  Religion is too often a divider and a justification for visiting horrors on those of a different faith or no faith.