The ‘Religious Liberty’ Bullies and Their Fight Against LGBT Equality

Jay Michaelson on the battle to prove equality for gays restricts the religious liberty of Christians.

Robert F. Bukaty/AP, file

Thirty-five years ago, having lost the moral battle for segregation, a small group of evangelicals met to rethink their attitude toward politics. Unlike Catholics and mainline Protestants, evangelicals had tended to stay out of secular politics, believing it to be irredeemable. But with the IRS’s decision to withdraw tax-exempt status from the evangelical Bob Jones University, which discriminated against African-Americans, the Christian right was born. Their mission, they said, was to defend “religious liberty.”

Today is a different age—but the players, and the rhetoric, are the same. Today a far-right coalition of conservative Catholics and evangelicals perceive that they have lost the moral battle against LGBT equality, particularly same-sex marriage. And so, as described in a lengthy report released Monday by the think tank Political Research Associates and chiefly authored by this writer, they are waging a multi-pronged battle against LGBT rights, not on substantive moral grounds but on the premise that equality for gays restricts the religious liberty of Christians to discriminate against them.

Of course, this is rhetoric, not reality. Forty years ago, the newly minted Christian right “played the victim” by claiming that a racist school, rather than the students being discriminated against, was the true victim. And today religious-liberty activists claim that bullies are the real victims because they cannot “express their views about homosexuality.” They claim that businesses who say “No Gays Allowed” are being oppressed because they are forced to “facilitate” gay marriages. And they claim that the real targets of discrimination are not gay people, who in 24 states can be fired from their jobs simply for being gay, but employers who can’t fire them.

Yet unlike recent anti-gay sloganeering, the religious-liberty campaign makes use not of theological arguments but of civil libertarian ones, and as such is much harder to recognize than the usual Bible-quoting bigotry. Indeed, Catholic-funded organizations such as The Becket Fund—named, not coincidentally, for the archbishop who chose martyrdom rather than obedience to the secular law—and the U.S. Conference of Catholic Bishops have co-opted the work of respected law professors such as Douglas Laycock of Virginia. They have even convinced Stanford University to establish a Becket-funded “Center for Religious Liberty.”

The notion that anti-discrimination law offends religious liberty has even found its way to the very top of our political life. At the vice presidential debate last fall, Rep. Paul Ryan accused the Obama administration of “assaulting the religious liberties of Catholic charities, Catholic churches, Catholic hospitals.” But all churches and most hospitals are already exempt from anti-discrimination law and need not provide reproductive health services either, despite receiving enormous government subsidies.

Religious liberty is a code word, like family values. Though Laycock and other academics may be sincere, the Family Research Council, Christian Legal Society, Ethics and Public Policy Institute, and the legion of other Christian right organizations are chasing the same bugaboos as ever—gay rights, abortion, prayer-free schools—and simply repurposing an old, racist rhetoric to fight the same social battles as always.

(Not all religious-liberty activists are Christians; a handful of Orthodox Jews have joined the campaign, providing a Jewish fig leaf for an otherwise hard-right theocratic Christian movement.)

This strategy has worked. Several states include religious exemptions to nondiscrimination law and same-sex marriage laws. “Conscience clauses” have limited women’s access to reproductive health for decades. And, in the highest-profile religious-liberty campaign of recent years, right-wing activists won significant new exemptions to Obamacare’s requirement that employers provide health insurance to their employees. Now not only churches but any church-affiliated organization—those aforementioned Catholic hospitals, for example—need not provide coverage for contraception.

But that’s not enough, not by a long shot. The Becket Fund has recently filed 37 lawsuits, all around the country, seeking to extend the exemption to any employer who feels religiously aggrieved by providing health insurance coverage that some employee might someday use to obtain contraception. From the hysterical op-eds written by one of Becket’s clients, you would think that the CEO is personally performing an abortion. The truth, as the Supreme Court held, is that health insurance is now a kind of tax. And just as a pacifist can’t opt out of paying taxes used for war, so too a religious employer can’t opt out of these taxes because an employee might use them for a form of health care with which the employer disagrees.

Besides, this is a slippery slope. Suppose a business is owned by Christian Scientists, who object to many forms of modern medicine. Should that business’s employees be deprived of health insurance entirely?

Or suppose a Christian business owner dislikes Jews as much as she dislikes gays. Not just dislikes—suppose she holds all Jews responsible for the death of Jesus Christ. Should such a business owner be able to post “No Jews Allowed,” like the wedding photographer who refused to photograph a gay couple?

Of course not. Religious-liberty rhetoric notwithstanding, civil rights is always about balancing competing interests. If the wedding photographer refuses to take a picture of a gay couple, the gay couple suffers injustice. If the wedding photographer must obey the same anti-discrimination laws as everyone else, then he or she has to put up with it, because this is America, and America doesn’t believe in discrimination.

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Fortunately, this is a religious value as well. Christianity believes in rendering unto Caesar what is Caesar’s, and God what is God’s. Corporations do not have consciences; they are commercial entities well within Caesar’s domain. You want to be in the marketplace, you play by the same rules as everyone else.

Unfortunately, such points are lost in the din of right-wing talk radio. Just last fall in Minnesota, for example, the religious-liberty crowd was warning that if same-sex marriage passed, ministers would be compelled to perform gay weddings. This was an out-and-out lie, and they knew it. No rabbi can be forced to perform an intermarriage. No Catholic priest can be forced to marry two divorcees. And no, Virginia, no minister could ever be forced to solemnize a gay wedding, a straight wedding, or any other kind of wedding she or he found objectionable. But try telling that to honest Christians who are being robocalled on the eve of an election.

Religious liberty is being used to mask a conservative Christian agenda—the same agenda that’s been pushed for half a century now. Some on the far right may sincerely believe their liberties are being threatened, but they believed that about desegregation too. A belief does not make something so. The question is how many new believers they’ll recruit before this crusade is defeated.

CORRECTION: A previous version of this article contained a quote from the Orthodox Union’s executive director of public policy, Nathan Diament, regarding same-sex marriage. The authenticity of the quote could not be verified. We have removed the quote and apologize for the error.