LGBT rights commentators and groups are growing increasingly concerned with a number of bills being filed at the state and federal level that seek to allow discrimination against LGBT people on grounds of religious belief.
A bill filed in the U.S. House that would give special protection to religious institutions and groups to apparently protect them so that the federal government could never remove their tax exempt status on grounds that they have discriminated against gay people, has received significant attention for the worrying precedent it would set should it become law.
Drafted by Rep. Raul Labrador (R-Idaho), the bill is supposed to be an answer to the Supreme Court of the United States’ decision striking down DOMA Section 3 as unconstitutional and therein removing the last barrier to federal recognition of same-sex marriages.
Rep. Labrador is quoted as saying the bill is a “narrowly-tailored piece of legislation” that he designed to fulfill “an immediate need, which is the protection of religious institutions and churches, so that they can continue practicing their religion as they see fit.”
That last comment, “so that they can continue practicing their religion as they see fit,” betrays that this is anything but a “narrowly-tailored piece of legislation.” In fact, the bill appears so broad that it would potentially allow federal workers to refuse services and expertise to married same-sex couples or couples looking to get married, all based on their own religious beliefs.
Labrador, as evidence the bill is needed, points to recent California legislation (State Senate Bill 323) that would have added “sexual orientation” and “gender identity” to the list of classes of people that groups cannot discriminate against without having their state tax exemptions withdrawn.
The bill, for instance, would have denied the Boy Scouts of America tax exempt status if it continues to discriminate against gay and trans scouts. While a policy change this year allows gay scouts to remain in the youth group, it does so on a “Don’t Ask, Don’t Tell” basis, meanwhile gay scout leaders will still be kicked out if they disclose their sexuality.
The bill was shelved this month in the waning days of the session but it could still be taken up again in the next legislative session.
The legislation was heavily opposed by religious conservatives who said that amounts to an attack on their religious beliefs. Of course, this is nonsense. The bill in no way attacks religious belief. It would simply mean that in order to get special state tax exemptions, groups would have to comply with nondiscrimination standards that are present in the state’s other laws. That this is not already the case is what should really be cause for concern.
Labrador’s federal bill has been the source of much ire from the LGBT community, with Freedom to Marry President Evan Wolfson saying: “This sweeping Trojan Horse proposal would swallow civil rights laws and subvert constitutional protections, and is a dangerous ‘solution’ to a non-problem.”
Wolfson goes on to warn that this bill seeks what amounts to a license to discriminate in the public sphere.
Annoyingly, Labrador is claiming that the “Marriage and Religious Freedom Act,” as it is so called, is a “bipartisan” effort because he has managed to round up two Democratic lawmakers, Reps. Mike McIntyre (D-N.C.) and Dan Lipinski (D-Ind.), to join him as lead sponsors of the bill. There are about 60 other co-sponsors, but as the above are the only Democratic Reps signing on to this effort, it is by no means legislation with true bipartisan support.
To be clear, Labrador has little chance of getting his bill through Congress despite the recent IRS controversy that could have bolstered the effort. This, though, seems another routine attack by Tea Party-aligned lawmakers to carve out special exemptions, much like their repeated attempts to prevent same-sex marriages being conducted on military bases and seeking special protections for anti-gay military chaplains.
However, what this effort shows is a distinctly worrying trend that at state level may see more success.
Currently Michigan Republicans are advancing a bill that would allow adoption agencies to discriminate against gay couples based on their “sincerely held religious beliefs,” writing into statute policies that several adoption agencies in the state already use.
This is to supposedly guard against Catholic adoption agencies from choosing — not being forced, as they claim — to close up shop should they be told they must serve married gay couples or lose their state funding and accreditation, as was the case in Illinois and Massachusetts.
Ironically, this may in part have been exacerbated by our advancing marriage equality efforts. When New York state passed a marriage equality bill in 2011 with modest but significant Republican backing, it did so after Governor Cuomo had wrangled lawmakers into agreeing the bill should carry explicit protections for religious institutions.
These were not new protections. Indeed, they were just making explicitly clear existing constitutional guarantees, but some legal analysts have become wary that this may be one of the rare times where a slippery slope should really be feared: it would not take much to begin to tweak those religious protections to carve out even broader religious privilege. For instance, to say that wedding shop owners need never comply with state anti-discrimination laws when it comes to same-sex marriages and therein allow them the right to deny services.
Yet because these bills have succeeded in appealing to moderate Republicans, they have become the standard for marriage equality efforts, with Maryland in particular having modeled its (successful) marriage equality bill on New York’s, religious exemptions and all.
To illustrate this is an immediate concern, this week Hawaii Governor Neil Abercrombie released a draft version of the bill drawn up by the state’s attorney general that contains even more specific religious exemptions for the marriage equality effort in Hawaii than the last version.
Religious conservatives — among them the supposed-to-be out of the fight Mormon church — say they need wider protections, some going so far as to demand exemptions for marriage related businesses, adoption and foster care services and counseling. It is unlikely Abercrombie will yield to those requests, but the intent here is clear: to push beyond the bounds of constitutional rights and claim special religious privilege.
What is startling is that these kinds of demands for special privilege appear to be cropping up more frequently and on a variety of LGBT rights topics: Michigan’s seeking religious exemptions in anti-bullying laws, Maryland considering religious exemptions in trans rights bills, and more.
Let’s be clear here: there can be no exceptions to civil rights because to do so takes a sledgehammer to the very notion of equality. Religious rights and LGBT rights should not be classed as competing victimhoods. Allowing for full equality under the law does not impinge on private religious belief, it simply means that you cannot be allowed to use your religion to discriminate in the public, secular sphere.
Any legislation attempting to carve out religious exemptions beyond what are perfectly agreeable constitutional guarantees of religious freedom is really seeking special privilege to discriminate and that isn’t just a threat to the LGBT community, it’s a threat to anyone concerned with wider civil rights and the integrity of a secular nation.
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