“Religious Exemption” in Sexual Orientation Nondiscrimination Law
I’ve been thinking about how a couple leaders of the LDS Church have vocalized how they wouldn’t mind the 2009 nondiscrimination laws in Salt Lake City (in housing and employment, on the basis of sexual orientation and gender identity) be expanded across the state of Utah. Specifically, what they’re interested in is duplicating how those laws include “religious exemptions” that let Mormon and other religiously-owned institutions be exempt from the nondiscrimination laws altogether. The leaders don’t bring attention to this, of course — rather they just voice their support for the “balance” in the laws — but you can bet your breeches that if the exemptions were removed, the Church would not support the nondiscrimination laws whatsoever.
Not all Mormons are convinced these laws are good, regardless of the exemptions. Many Mormons continue to believe that such laws are a sign of “death by a thousand cuts” to traditional family culture. This is because it’s possible to imagine the phrase “religious exemption” as a temporary placeholder for when everyone will eventually have to follow the same law, rather than the language setting in stone a divide between “civil society” and “religious institutions.” When it comes down to it, no Utahn is a member of a religious institution and not also subject to civil society. I can understand why the dialogue hasn’t moved much in the Utah State Legislature, even as a few more individual cities have followed Salt Lake City’s lead since 2009.
There’s an angle of why the Church feels its exemptions are necessary that I think is worth examining in order to move the dialogue forward. Let’s take, for example, a teacher at BYU in a same-sex relationship. Currently, if the school finds out about the relationship, the teacher will be fired on the basis of breaking the honor code: namely, the rule that students and faculty are not supposed to have sexual relations with anyone other than a married spouse (“married” as defined by the Church must be an opposite-sex spouse). If that teacher were able to sue BYU for “discriminating on the basis of sexual orientation,” then that would open up BYU’s honor code to legal scrutiny (as it is applied to everyone, gay, straight or otherwise). Is it possible to protect people from being fired on the basis of sexual orientation/gender identity at BYU, but also not affect BYUs honor code? I can’t think of how. Still, does an individual citizen’s “right” to privacy trump a religious institution’s “right” to have knowledge of private affairs and discipline accordingly for the sake of religious assembly? Perhaps this isn’t the way the legal world would frame the issue exactly, but hopefully I’ve made the contention clear.
Recently, I asked an orthodox gay Mormon (who thinks same-sex intimacy is a “sin”) who supported the SLC nondiscrimination ordinances what is more important to him: protection in housing/employment, or preventing same-sex couples from being allowed in Mormon spaces. He told me that he would rather deal with Mormon homophobia than bring “sexual orientation law” into Mormondom. He feels such law would limit the Church’s right to discriminate on the basis having sex with someone you’re not married to. He casually added that same-sex couples are allowed at church, “everyone is allowed,” which, well…I’m slightly curious about the current cultural dynamics (that is, how my local ward would respond to a same-sex couple…though my partner isn’t interested in carrying out such an experiment with me, understandably).
Anyhow, I’m not sure how to resolve this protection and/or privacy vs assembly issue other than the exemptions that are in place. On the other hand, I’m not a fan of the exemptions because I see them as wiggle room for the Church and individuals in the Church to continue to be as homophobic as they want, and not have to be subject to the same law everyone else is.
If discrimination is wrong (and it is) then it’s wrong in ANY context, whether religious or civil. The church can’t have it both ways; saying that they are against civil discrimination based on sexual preference, but then discriminate based on sexual preference within the Church. Why should religion be exempted as a special case? They shouldn’t.
Consider how the church used to be against the Civil Rights movement, biracial marriage, and black equality in the Church. What if the Church, today, said they should be exempt from treating blacks equally? How would that fly? It wouldn’t, since people can see it’s a ridiculous argument.
Similarly, saying that churches should be permitted to discriminate against gays, simply because you can’t mess with a person’s religion, is equally wrong. Religion shouldn’t infringe on somebodies civil rights. If it does, then it’s not religion; it’s just bigotry.
The way I’ve heard it explained is that “sexual orientation law” protects “gay intimacy” and the Church can’t accept that. The Church doesn’t want to discriminate against individuals based on their sexual preference, per se, but it does want to discriminate based on shared intimacy. The thing is, protecting people based on sexual orientation wouldn’t make sense if same-sex intimacy could still be targeted.
The law of the land is that gay sex is protected as “private” (Lawrence v Texas struck down the nation’s anti-sodomy laws in 2003). Sexual orientation laws go further to protect those perceived as gay, regardless of whether they’re intimate with anyone, since even though sex is protected as private, people can still mistreat each other in public areas of housing, employment, etc.
So, I’m not sure how this will bode for the Church legally as time goes on. No wonder Dallin Oaks is so active talking about “religious exemption,” because it’s the only card left.
When I first read your post, I thought it might be interesting to compare to how already protected categories (like gender and race) fare with respect to employment discrimination by LDS educational institutions. Unfortunately, I didn’t have any concrete info on the subject. Fortunately the Exponent steps in to provide!
Here’s a representative segment:
I wonder if gay profs wouldn’t simply be expected to understand that they will work only until they have a relationship, and if the law would similarly give them [the CES] a pass for the policy…
Chanson, I had no idea the Family Medical Leave Act had religious exemptions built into it. Apparently, the same is true for the Americans with Disabilities Act. (I feel like I should have known this; like it’s obvious…)
I’m beginning to understand now why people thought the Church’s tax-exempt status should be taken away after its involvement in Prop 8.
And the same is true of the Civil Rights Act of 1964, and the Age Discrimination in Employment Act of 1967… wow, the church/state divide is pretty strict. I’m not sure people have any “civil rights” in churches. Is there any way to hold a church accountable???
Ah, here’s a site for ex-Mormons noting cases where the Church has been sued successfully (e.g., name removal). Also, it seems people have a right not to be sexually abused or murdered.
Yes: vote with your feet, and with your pocketbook. Just don’t go.
Why does there have to be a coercive legal or constitutional redress for every policy that seems socially backwards?
As I mentioned in the OP, no Utahn (or American citizen) is part of a religious community and not also part of civil society. When a church culture creates an atmosphere of discrimination or inequality in civil society (such as in areas of employment), I think it’s perfectly reasonable to use the law to address this. I’m sure if we dug down deep into the construction of “civil rights” and “human rights,” though, there’d be some ugly paradoxes we don’t want to face (for example, some scholars have argued how the state actually creates the conditions for violence, as opposed to protection from it…if we think about citizenship law, e.g.). So on the other hand, I agree with you that the law shouldn’t be able to reach its fingers into every nook and cranny. Believe it or not, I’m fairly torn on the issue.
I think its clear that there’s a tension between religious freedom–or any freedom, for that matter–and the norms of civil society. There’s never going to be a perfect way to balance the two because there’s not any kind of objective external standard that dictates what the right balance is–how much freedom we are willing to sacrifice for things like equality and security (which is also at odds with freedom) is always going to come down to a matter of opinion. So when you say something like “When a church culture creates an atmosphere of discrimination or inequality in civil society (such as in areas of employment), I think its perfectly reasonable to use the law to address this.” that is not an unproblematic statement, and it’s anything but self-evident.
In terms of US Constitutional law, though, freedom of religion is one of the consistently sacrosanct principles. As you have pointed out, virtually every antidiscrimination law ever passed has had a religious exemption. If you looked at all of the various antidiscrimination statutes in all 50 states, I would be willing to bet heavily without exception they all have similar exemptions for religious organizations. And it’s not just antidiscrimination statutes, either–you will find the same thing on the state and federal level in tax laws, charitable organization registration and reporting laws–basically any law governing or restraining the behavior of an organization is going to have a religious exemption.
Thats not actually the case because churches and religion dominate the American legislative landscape. Its because the Supreme Court has consistently ruled that freedom of religion means that secular government can’t be allowed to coerce the beliefs or practices of churches and religions. And again, not that it matters, but I’d be willing to bet that virtually every state supreme court has interpreted the freedom of religion clauses in their own state constitution in exactly the same way.
Thus, there’s no point in even bothering to pass an antidiscrimination law that applies to churches because the weight of legal authority would be so enormously heavy against it. And lawmakers understand this. For 200+ years, the courts who have the final say on the matter have just consistently said that the first amendment means you just can’t cover churches with those kinds of laws.
Where you are not going to have religious exemptions is criminal behavior–as a general rule, freedom of religion doesn’t mean freedom to murder or rape in the name of religion (fraud is admittedly sometimes problematic if the question is a matter of religious belief–as was pointed out in the website you linked to–courts are generally not willing to pass judgment on whether a religion’s beliefs are bona fide or not).
But my point is, although you can certainly personally conclude that “[w]hen a church culture creates an atmosphere of discrimination or inequality in civil society (such as in areas of employment) . . . its perfectly reasonable to use the law to address this,” our legal tradition has pretty much unambigiously decided that it’ not permissible. The Constitution as written and as interpreted by 200 years of jurisprudence says that freedom of religion trumps “an atmosphere of discrimination or inequality.” You want to change that at this point, you gotta amend the Constitution.
Kullervo, I think you misunderstand me and it’s because neither of us made ourselves clear. After your comment @6 — “Why does there have to be a coercive legal or constitutional redress for every policy that seems socially backwards? — I was under the impression you were against nondiscrimination laws in civil society, so I was arguing for them.
By using the law to address “this,” I was referring to when a church culture affects civil (religiously plural) space — generally as a result of a single church culture being the majority in an area. For example: Utah. It is reasonable to use civil law to say to a church membership: “Outside the jurisdiction of your church, in civil society, you may not discriminate on the basis of religious affiliation (or gender or race or sexual orientation, etc).” And this is indeed how the system is set up. In Salt Lake City, a Mormon cannot discriminate against someone on the basis of sexual orientation in employment or housing provided that employment or housing is not run by a church. It would be unreasonable if Mormons could say: “No, we have religious freedom to discriminate against whomever we choose [in civil society]. It’s against our religion for two men to be in a relationship, so we have a right to discriminate against that behavior.”
Yet this is how I feel Mormons and other Christians think about the concept of “religious freedom”: that they have a “right” to discriminate in civil society on the basis of their religion. They don’t have that right, actually. They only have that “right” at their church.