Religious Freedom Still Isn’t License to Discriminate

by Alexandra DeSanctis

Last week, in response to a piece at Salon, I wrote a short post about the reality of religious-freedom legislation in America, which, I argued, is narrowly tailored to protect the consciences of those who believe that marriage is rightly understood as being between one man and one woman. My broad point was that no example of this legislation licenses discrimination against LGBT individuals on the basis of their sexual orientation.

Rushing to the defense of the author of the Salon piece — a former colleague of hers — writer Sunnivie Brydum has published a response to me. In this response, Brydum makes a number of errors, the most salient of which she shares with the piece that kicked off the debate: the mischaracterization of both the content and the practical effects of religious-freedom legislation.

To serve as her most prominent example, Brydum selects the First Amendment Defense Act (FADA), a much-maligned piece of legislation that, by all rights, shouldn’t even be necessary. The fact that lawmakers needed to introduce such a bill hints at the problem here; without this additional protection, a subset of religious Americans can be punished by the federal government for their religious beliefs.

And that’s all the bill protects against. Contrary to Brydum’s assertion that FADA would license a whole slate of anti-LGBT actions, the bill’s stated goal is simple: to protect from government retaliation Americans who believe that marriage is the union of one man and one woman, a belief that is held by plenty of people other than conservative Christians.

Rather than licensing discriminatory behavior, the bill would, if passed, forbid the federal government from retaliating against institutions or persons who act upon a belief in heterosexual marriage. In practice, this means that, for example, a religious university could not have its tax-exempt status revoked or its accreditation denied because it advocates heterosexual marriage or believes that a person’s sex is based on immutable biology. The idea that such a bill “weaponizes” religious freedom is absurd.

But even setting aside the specifics of FADA — and sidestepping for the moment the details of the Religious Freedom Restoration Act (RFRA) and the Trump administration’s draft executive order on religious liberty — the fundamental point is this: A proper understanding of religious freedom protects all Americans, whether Christian or otherwise, from being coerced into condoning behavior he believes is immoral, in this case same-sex marriage.

Tellingly, Brydum is forced to concede this point; as she puts it, “it is true there is no federal or state law that says ‘it’s OK to turn away the gays if God said you could.’” (She goes on to argue that LGBT people also need affirmative laws protecting them from discrimination. That’s an argument that Brydum and I could discuss in a separate conversation.) But here she attacks a strawman. I never argued that LGBT people don’t need federal protections. I argued that religious-freedom legislation in the realm of marriage doesn’t permit discrimination against LGBT individuals on the basis of their sexual orientation, and I made that argument in my original post precisely because progressives continue to incorrectly depict religious-freedom legislation as a blanket license for religious people to deny service to LGBT people on the basis of their identity. Until both sides are willing to admit the importance of the competing rights at stake here (religious-freedom rights on one side and the dignity of LGBT people on the other) this public debate will continue to languish.

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