Why Indiana Needs a Church of Gay

Maybe it’s time to start the Church of Gay. Or actually pass state and federal laws specifying that gay businesses have the legal right to discriminate against religious fundamentalists. Time to fight special rights with special rights.

After all, Indiana’s new “Religious Freedom Restoration Act” does just that—it confers special rights on a small minority of citizens and, importantly, their private businesses, to disregard other laws and the constitution and discriminate against other citizens. The law isn’t about protecting religious freedom; it’s about hiding the impulse toward ugly and un-American discrimination beneath the distraction of more palatable rationalizations.

In response, yes, there should be court challenges and tourism boycotts and more. But I would also like to propose the “Gay Freedom Restoration Act.” And should such a law fail to pass in Indiana or other states, then I will be starting the Church of Gay. Allow me to explain.

First, you need to understand that, despite what some have insisted, the Indiana law differs from the federal “Religious Freedom Restoration Act” and similar state laws in two important ways. For one thing, the Indiana law explicitly allows private, for-profit businesses to use “the free exercise of religion” to justify discriminatory policies. And while under other statutes “free exercise” is a right of defense against government lawsuits, Indiana expands that to include private lawsuits as well. What that means is that a private for-profit business can claim religion as an excuse to discriminate and then use that claim as a defense against any lawsuit.

Plus the Indiana law’s intent is radically different and more nefarious than its predecessors. In fact, in Indiana’s legislative debates, Democrats “offered the Republican legislative majority a chance to amend the new act to say that it did not permit businesses to discriminate.” Republicans rejected the amendment.

Meanwhile, according to a poll from last year, 62 percent of mainline white Protestants, 58 percent of white Catholics and 56 percent of Hispanic Catholics support marriage equality. Apparently, 83 percent of Jews in America also support marriage equality. But if a Jewish private business owner wanted to discriminate against a gay couple, we should allow him to because of a very marginal interpretation of his religion?

Yes, that’s basically how it works. “As long as it’s a sincere belief that can be plausibly organized as a religion,” explains Professor Katherine Franke, director of Columbia Law School’s Center for Gender and Sexuality Law. “In fact it’s regardless of whether that religion’s official doctrine adheres to your beliefs. We don’t ask the courts to interpret the reasonableness. You don’t even have to belong to a congregation or attend services. It just has to be plausible.”

That’s a pretty damn low bar. And us gay people love bars. So…

Why not introduce that “Gay Freedom Restoration Act” to protect sexual freedom and liberty and support the “free exercise” thereof by privately owned businesses? Would that mean a gay-owned restaurant could refuse to serve food to a right-wing religious homophobe? Or maybe Apple Computers, run by openly-gay CEO Tim Cook, could refuse to sell iPhones and iPads to fundamentalists?

Wait a second, you say, that’s discrimination! That kind of law would be morally wrong and possibly illegal! Yes, but the 14th Amendment of the United States Constitution guarantees “equal protection under the law” including, in this brave new world, the right to discriminate.

Even better would be a national “Church of Gay” to which gay and straight folks could belong. Heck, if Scientology can be a religion, why can’t we start one? A central tenet of the “Church of Gay” would be equality and acceptance of everyone, and therefore violations of those principles would undermine the “sincerely held belief” of the Gayists.

Then again, Professor Franke points out, we don’t need to start a new church. There are plenty of organized, mainstream religions that already commit themselves to equality. Last year a group of ministers sued the state of North Carolina for not allowing ministers in the state to perform same-sex marriages. The ministers, plus one rabbi, filed a lawsuit challenging the state’s anti-gay marriage laws for restricting their free exercise of religion.

Professor Franke says, “Now is the time to ask whether progressives can use these religious freedom laws, too.” For instance, she could imagine a private business owner in Indiana using the new “Religious Freedom Restoration Act” to challenge the state’s open carry permit law: A private business owner whose sincerely held religious beliefs include peace and non-violence could object to an individual being allowed to enter her store or restaurant with a weapon. Indiana also has proposed legislation to require public school teachers to carry weapons; but were such a mandate to pass, a teacher could file suit because such a requirement violated his religious freedom.

Under Indiana law, medical professionals must counsel women against terminating their pregnancies. But doctors and nurses could file suit arguing that these and other restrictions on abortion in the state not only violate their free speech but their freedom of religion, including their sincerely held beliefs about the sanctity of women and their freedom.

The simple fact is that gay rights and marriage equality are becoming the norm. It’s increasingly the law of the land, and it’s by a growing majority of Americans. But instead of continuing to fight it out in our democracy or courts, a slim minority of fringe fundamentalists have rebranded their bigotry as “religious freedom.”

This is a manipulation of both religion and our nation’s principles and values. While America has never been perfect, a consistent fact of our history has been that those who want to discriminate have always, eventually, lost in the face of those who want to expand justice and liberty.

Those who want to discriminate are now, again, losing. So might I suggest giving up, going home and getting used to the new world around you? Try putting the “grace” in losing gracefully.