Capital Commentary is the weekly current-affairs publication of CPJ, written to encourage the pursuit of public justice.
When Religious Freedom and Gay Rights Clash
Stephen V. Monsma
by Stephen V. Monsma
Many faith-based organizations that provide human services hold to the religiously-based belief that sexual relations must be limited to heterosexual couples within marriage. May such organizations refuse to hire or provide services to persons in active same-sex relationships?
This is not a theoretical question. Several Christian agencies have withdrawn from the adoption business after their states required them to place children with same-sex couples on the same basis as heterosexual couples. These states had responded to the gay rights movement’s contention that these agencies were “discriminating” against same-sex couples and violating their basic civil rights. But for a religious agency to be forced to act against its religiously-based beliefs is surely a violation of its religious freedom. How can one sort out these conflicting claims?
The Center for Public Justice Guideline on Religious Freedom defends religious freedom in clear, unambiguous terms, rooting it in human beings created in God’s image and responsible to Him. This includes the freedom of faith-based organizations to act in keeping with their religious beliefs. But the Guideline also insists there are times when “governments may be obligated to restrain or prohibit certain practices even though some citizens consider them proper to the exercise of their religions.”
Thus government may properly forbid polygamy. And claimed religious beliefs ought not to serve as a defense for racial discrimination rooted in bigotry. In fact, the gay rights movement often draws a direct parallel between racial discrimination and “discrimination” against gays.
There is, however, a fine but crucial distinction between earlier nondiscrimination laws and what the gay rights movement is now demanding. Nondiscrimination laws have always protected certain categories of persons: African Americans, other racial and ethnic minorities, women, the handicapped, and others. The gay rights movement, on the other hand, is seeking protection for persons based on their actions, behavior, or lifestyles.
It is arbitrary and unjust when an entire category of persons is subjected to discrimination in employment or the receipt of services, no matter who these persons are or what they do. But differential treatment for individuals that stems from actions or behavior viewed as undesirable or morally objectionable by the employer or service-provider is neither arbitrary nor unjust. Consistently and appropriately, the law has allowed such distinctions.
Thus, freedom of religion insists that when we as a society seek to protect the rights of gays, faith-based organizations should be protected by strong religious exemption language that makes clear their right not to hire or provide services to persons engaged in behaviors they consider morally wrong. But religious exemption language ought not to protect a right not to hire or provide services to an entire category of persons.
In the case of potential discrimination against the gay rights community, one should suspect that a faith-based organization is discriminating against a category of persons and not against individuals engaged in certain behavior if either of two conditions is present. One is if an organization refuses to hire or serve persons with a same-sex orientation, even if they are celibate. The second is if an organization excludes—from its employment or services—those in same-sex relationships but accepts unrepentant heterosexual adulterers and fornicators and unloving, hateful persons who prey on others. In either of these circumstances, one can fairly conclude that its refusal to hire or serve homosexuals has more to do with prejudice against gays than a broader policy of not employing or serving persons whose lives are in violation of religious norms to which their faith tradition holds.
As faith-based organizations link same-sex lifestyles and behavior with other lifestyles and acts their religious traditions hold immoral—rather than elevating same-sex relationships to a distinct category to be held up for special censure—they will be acting more fully in keeping with their own religious traditions and demonstrating the inaccuracy of charges of discriminatory behavior.
—Stephen V. Monsma is a Senior Research Fellow at the Henry Institute, Calvin College and Professor of Political Science Emeritus, Pepperdine University.
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Capital Commentary is a weekly current-affairs publication of the Center for Public Justice. Published since 1996, it is written to encourage the pursuit of justice. Commentaries do not necessarily represent an official position of the Center for Public Justice but are intended to help advance discussion. Articles, with attribution, may be republished according to our publishing guidelines.”