(RNS) Gay rights are colliding with religious rights in states like Arizona and Kansas as the national debate over gay marriage morphs into a fight over the dividing line between religious liberty and anti-gay discrimination.

A man holds a gay pride flag in front of the Supreme Court on Wednesday (June 26, 2013) after the court decided to strike down the Defense of Marriage Act.  RNS photo by Adelle M. Banks

A man holds a gay pride flag in front of the Supreme Court on June 26, 2013 after the court decided to strike down the Defense of Marriage Act. RNS photo by Adelle M. Banks


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More broadly, the fight mirrors the national debate on whether the religious rights of business owners also extend to their for-profit companies. Next month, the U.S. Supreme Court will decide whether companies like Hobby Lobby must provide contraceptive services that their owners consider immoral.

The Arizona bill, which is headed to Gov. Jan Brewer’s desk for her signature, would allow people who object to same-sex marriage to use their religious beliefs as a defense in a discrimination lawsuit.

Similar legislation has been introduced in Ohio, Mississippi, Idaho, South Dakota, Tennessee and Oklahoma, according to The Associated Press, while other efforts are stalled in Idaho, Ohio and Kansas.

A bill in Kansas that passed the state House but appears dead in the state Senate was blasted by critics as a “gay segregation” bill, allowing businesses, hotels and restaurants to deny services or accommodations to gays and lesbians based on an employee’s religious convictions.

Proponents cite the case of a New Mexico photographer who was sued after she declined to take photos of a gay commitment ceremony. In asking the U.S. Supreme Court to review her case, photographer Elaine Huguenin said she could take a portrait of a gay couple but not participate in their same-sex ceremony because it would violate her religious beliefs.

In ruling against Huguenin’s case, New Mexico Supreme Court Justice Richard C. Bosson wrote that while Huguenin and her husband are “free to think, to say, to believe, as they wish,” the public accommodation of differing beliefs is “the price of citizenship.”

The Arizona bill would broaden the state’s definition of the exercise of religion to include both the practice and observance of religious beliefs. It would expand those protected under the state’s free-exercise-of-religion law to “any individual, association, partnership, corporation, church, religious assembly or institution or other business organization.”

The law was written by the conservative advocacy group Center for Arizona Policy and Alliance Defending Freedom, a prominent Arizona-based Christian law firm.

At the federal level, gay rights advocates for 20 years have failed to win passage of the Employment Non-Discrimination Act, which would prohibit businesses from discriminating on the basis of sexual orientation.

“This is the next front in gay rights,” said Adam Winkler, a law professor at UCLA. “These laws, by making this issue front and center, will encourage more efforts to pass a federal anti-discrimination law.”

While the Kansas bill explicitly allows businesses and individuals to deny services to gays and lesbians, Arizona’s law is worded more broadly to apply to anything that could violate a person’s religious conscience.

The Kansas bill sparked some infighting within Christian circles. After commentator Kirsten Powers published a column in USA Today arguing that Jesus would bake a cake for a same-sex couple, it set off a chain of objections.

In response to some of the criticism he received for his quotes in the column, Atlanta-area megachurch pastor Andy Stanley tweeted: “Remember the time Jesus told everybody to quit paying taxes imposed by Rome? That was awesome.” And: “Remember that awesome speech Jesus gave about defending religious liberty?” He later deleted the tweets.

The Kansas Catholic Conference released a defense of the bill, written on a model from the Washington-based Ethics and Public Policy Center. But even those debating Christians’ role in the debate were hesitant to defend the wording used in the Kansas law.

“I have no interest in defending the legislation that recently failed in Kansas,” wrote Denny Burk of Boyce College. “I think that good people can disagree on whether that particular law would have been a good idea.”

Arizona already has a state Religious Freedom Restoration Act that protects a person’s free exercise of religion, similar to legislation in about 15 or so other states. The new law is simply strengthening the earlier one, said Charles Haynes, senior scholar at the Freedom Forum First Amendment Center.

“Nondiscrimination is an important American value and a strong value on civil rights. Religious freedom is also highly valued. It’s a core commitment of our country,” he said. “You have two very important claims, and the challenge is to balance these claims, especially when it comes to for-profit businesses.”

Finding a balance between the two will be hard to navigate, said Douglas Laycock, a professor at University of Virginia Law School.

“It’s hard to get the middle that protects the rights of gay individuals to marry and protects the rights of those who don’t want to participate,” he said. “Both gay rights and religious liberty people want rights for their side but not for the other.”

KRE/AMB END BAILEY

43 Comments

  1. Christians want the right to judge people squarely (as if they don’t already).
    What a disgrace.
    And the Right Wing Christians are in favor. Fascist agendas for the righteous.
    Remind me again, Holy rollers, how much we hate Sharia Law.

    Hypocritical, unthinking, bullying clerical nonsense.
    May the Supreme Court slap it down.

    • The Kansas bill and others like it will not give anyone carte blanche to do whatever they want in the name of religion. They are intended to prevent the government from penalizing individuals or employers because they declined, because of their religious beliefs, to provide a service that would compel them to recognize or affirm a same-sex relationship as marriage. Small-business owners like photographers, florists,and bakeries have been sued for declining to provide their services to gay couples at their marriage ceremonies. Keep in mind that these business owners are artists. They do not just sell a product, they apply their training and talent to produce a unique experience. These businesses did not refuse to serve gay customers in other ways.

      An entirely understandable response would be for the gay couple to say, “I’m sorry you’re so narrow-minded and I hope you evolve one day. In the meantime, I’ll take my business elsewhere.” And that’s exactly what they did! All of the couples went to other businesses and their weddings went on as planned. They suffered no harm and no discrimination. So why did they also feel the need to sue the business owners who declined? They want to punish them personally, professionally, and financially! Gay activists pride themselves on their live-and-let-live open-mindedness, but they are highly judgmental toward anyone who disagrees with them. They’re tolerant of only one point of view on the issue—their own—and they’ll use threats, intimidation, and coercion to bring everyone else in line.

  2. Edward Borges-Silva

    If it is “Fascist” to refuse accommodation for conscience sake, is it any less Fascist to force accommodation for political correctness sake? Further, unlike Sharia, proper Christian precepts of law do not allow active persecution, simply non accommodation.

    • Like it was non-accommodation to the civil rights movement to deny goods and services to people on the basis of their skin color. Those poor racists were so persecuted by Federal and State legislation from acting on their conscience and treat potential customers as less than people. /s

      The arguments made in favor of these kinds of “non-accomodation” bills is no different than the ones used to support Jim Crow. We have already seen the pernicious effect of business discrimination.

      Where does it end? Legalized discrimination of any minority group as well under the excuse of “deeply held religious beliefs”. Leave it to religious based bigotry to cough up arguments for tossing out 50 years of Civil Rights legislation.

      • Let me guess. You also support the government forcing Black American wedding photographers to do wedding portraits at the local KKK Klavern, if so requested by his or her customers.

        Be honest. You really do support that, don’t you Larry? How about you Max?

        • Let me guess, you are unfamiliar with the Civil Rights act, your local anti-discrimination laws, and the notion of suspect classes. Suspect classes meaning that some groups have such organized, widespread and pernicious prejudices against them that the government has to have an extremely good excuse for discriminating against them. As far as I can tell white racists have never fallen under that category, nor has addressing discrimination against them ever been made part of existing laws

          See the problem with stupid analogies are that they are no substitute for an actual argument. A black photographer would be more worried about being lynched at the end of the party as a centerpiece to the celebration. :)

          The government has a right to force businesses not to discriminate against potential customers on the basis of race, religion, national origin, sexual orientation, gender, family composition and a host of other categories. They have had that right for over half a century. To overturn such polices because of a bunch of whiny religiously inspired bigots owners would be both stupid and wrong.

          • I’ve read the text of the 1964 Civil Rights Act. It doesn’t even allow for gay marriage, let alone forcing Christian or non-Christian business owners to provide goods and services to help celebrate, validate, or tacitly affirm gay marriages or receptions.

            And of course, gay marriage isn’t a protected class anyway. So here’s your question (from author Allen B. West):

            “if the government is supposed to stay out of the bedroom, then why is the government making regulations and rules, telling business owners what they must do based on what others have chosen to do in their private lives?”

            Try answering that one, yes?

          • Doc: This isn’t about gay marriage. This is about a bill that allows people and businesses to refuse any good and any service to anyone (gay, straight, Mormon, black, disabled, single, married, whatever) because of a sincere religious objection. That’s how broad this bill is.

          • And yet the notion of making discrimination by businesses illegal under it eluded you. It was a major part of the law as well as the state versions of it.

            Businesses have a duty to the public if they are open to the public. They have to be forced into avoiding discrimination in order to keep a free flow of commerce and a level of civility in business. Tying it down with bigotry harms the public at large. Making such reasons religious based is even more dodgy.

            Gays are a protected class. A group which is recognized by state and federal laws to be a suspect class which is vulnerable to all encompassing and organized prejudices and discrimination.

            SCOTUS already ruled a while ago that laws designed to strip them of existing civil liberties are not allowed. Google “Romer v. Evans”,

            Allen B.West was a war criminal and a moron who never deserved his only term in Congress. The man’s opinion has always been worthless to me. Of course it takes extra special stupidity for a member of a minority group, which was on the receiving end of business level discrimination for decades, to cough up excuses for it. Even worse is opening the door to something which will most definitely be used against him by others. [ex. "My deeply held Christian Identity beliefs compel me never to serve a black person as a customer" :) ] As I said, Allen West is a moron.

      • The Kansas bill and similar bills are about preventing the kind of coercion that happened under Jim Crow. They protect what should be already protected: basic civil liberties such as freedom of association, freedom of contract, and freedom of religion.

        Jim Crow and segregation did the exact opposite. They legally coerced people to keep them separated, to prevent them from associating or contracting. Yet today, people are saying the law should coerce people into associating and contracting.

        Freedom of association and freedom of contract are two-way streets. They entail the freedom to choose whom to associate with and when and on what terms; whom to contract with and for what goods. Governmental mandates that force association or prevent association violate these freedoms.

        If a central argument of the LGBT movement has been the freedom to live how one chooses sexually, shouldn’t government respect the freedom of citizens to live how they choose in the marketplace?

        In a growing number of incidents, the redefinition of marriage and state policies on sexual orientation have created a climate of intolerance, intimidation, and even government coercion and discrimination for citizens who believe that marriage is the union of a man and a woman.

    • EDWARD,

      14 little girls died in a fire in Saudi Arabia two years ago. They had all run out of the burning building but were forced to go back inside because they were not dressed appropriately because of Islamic Law.

      There is your “Non-accomodation” in action.

      • Edward Borges-Silva

        Atheist Max, shall I cite the atrocities committed in the last century by so called ‘rational’ political philosophies. The ‘dialectical materialism’ of Karl Marx, implemented by the atheistic ministering hands of Stalin, Mao, the Kim family of N. Korea, and the Khmer Rouge of Cambodia led to the death of scores of millions of people, exceeding by the first magnitude the numbers of souls killed by those in religious error throughout history. Further, while I do not object to sharp rejoinders, I am dismayed by both atheists and ‘spiritual’ people who pepper their remarks with regular personal invective. You all know who you are.

        • No actually you can’t.

          What you can cite are people substituting irrational religious belief with irrational belief in the state. All those dictators you mentioned saw religion as competition to their power. Same modes of thought as religion, just as irrational, different object of worship. Same thing.

          Hitler and every other right wing dictator neutered religious opposition by appropriating and subverting it. Communist ones tend to be more combative. Usually it is because religious organizations tend to flock towards reactionary governments. Like the resurgence of theocratic forces in Russia today.

          Fact of the matter is, on the subject of this thread, people are using religion as an excuse to engage in behavior otherwise prohibited as discriminatory and destructive to the nature of open commerce. Essentially pretending that calling one’s views religious belief, it would absolve actions which can only be honestly described as bigoted and harmful to others

          • Edward Borges-Silva

            I’ve noticed a distinct pattern in the exchanges I’ve had with atheists on this website; they tend to answer challenges obliquely, feinting momentarily, then resuming the attack. Setting aside rationality or as you have it, irrationality; Can you deny that atheism is not, or has not become, a fundamental precept of communism, and that atheist communist leaders (rational or not) are responsible for the greatest blood letting in human history? Unlike atheists, Christians typically are prepared to acknowledge personal error and amend it. I’m often challenged to demonstrate ‘proofs’ of God’s existence. Such proofs as I have offered are rejected summarily out of hand. I challenge anyone to offer objective rational evidence that He does not exist.

          • Edward, you are using a canned and historically ignorant argument. Every Atheist hears it and the arguments always devolve into the Christian splitting hairs and weaselwording their prior statements. So of course it will naturally get a lot of derision.

            The idea one should bother, “setting aside rationality” is the reason for most of the arguments in the first place. Many find no need to do so.

            I can deny atheism as a major part of communism and I continue to do so. Your assumption is based on faulty and intentionally misleading assertions.

            Anyone who argues about the finer points of any dictatorship’s political philosophy is ultimately making an ignorant argument. Actual philosophies matter little to communism or fascism or monarchism or theocraticism. If it is not democracy, it doesn’t really care. They all come down to “the leadership orders, we obey”. Anything else is window dressing. No dictator’s speeches can ever be taken at face value since they usually don’t take their own words seriously. It is always means to ends.

            Anti-clericism was a major part of communist revolutions because (as I mentioned earlier) the churches usually sided with the old guard regimes. Nicaragua was the exception.

            Claiming atheism was an integral part of communism is akin to saying Christianity was an integral part of Fascism. Both are arguments made out of historical ignorance. Both ignore the truisms I stated above. The only philosophy of a dictatorship is, “the dictator is to be obeyed.”

            “Christians typically are prepared to acknowledge personal error and amend it. ”

            Young Earth Creationism is living proof that is not true. Christians like to use weaselworded or legalistic arguments to avoid acknowledging error or misconception.

            My bet is your responses to proof of God’s existence require circular logic, self-referential sources, begging the question and everything short of admitting the truth. That your belief in God is faith, and faith alone. Nothing wrong with saying you have faith. But the most honest answer is to say that from the outset rather than torture logic, rationality and engage in dishonest solipism.

  3. My grandfather hated Catholics. He really hated them. Enough to boycott my cousin’s wedding once he learned that she comes from a Catholic family.

    During portions of his life, he ran a grocery store and a mobile home court and a gas station. This bill is broad enough that could cite his own sincere religious objections to refuse goods and services to Catholics.

    This should be interesting…

  4. It should be noted that in many states the opposition to these bills include a sizable religious/Christian component. For instance, Idaho’s Add The Words protests (addthewords.org) have had regular church and clergy participation, and when the Kansas house passed their bill, the church was part of the pushback that killed the legislation (http://cjonline.com/news/state/2014-02-14/kansas-clergy-condemn-religious-freedom-bill-fraud)

    • CHAD,
      It is great when Christians and other religious people take up the cause of human laws: liberty, freedom and anti-totalitarianism.
      But you have to admit that such causes run against the grain of the Church doctrine which is all about enforcement of God’s laws.

      In other words, the religious behave best when they abandon God’s rules and just do the right humanitarian thing instead. It is always alarming how often those two things don’t line up.

      • That was a low blow Max.There are plenty of faiths/sects/churches which still promote social justice. They just don’t have the numbers or cash that their more vocal loudmouth ones do. [They don't have that instant partisan political connections or the pipeline to big business]

        • Well, I took Chad’s comment seriously. Nothing low about it.

          The support for social justice comes with a smiley face today – but we must remember it was not always so.

          The entire Southern Baptist Church was founded in the 1830s on the idea that slavery was a religious matter endorsed and sanctified (literally) by the word of God and financed by the big plantations.

          When civil rights re-emerged a century later it was Atheists like A. Philip Randolph and Bayard Rustin who did the groundwork for movements later spearheaded by Martin Luther King. And King had to confront the southern churches specifically from within – as a Reverend – to even have a chance to succeed to recast the debate and launch an argument for social justice.

          Confronting the old doctrine of slavery and later social justice was not something the churches ‘supported’. Similarly, confronting the doctrine against homosexuality is the step now underway in Churches across the country.

          As I say, Social Justice goes against the grain of the church doctrine.
          I applaud those who are changing things from within the churches and who use the pulpit to promote social fairness today.

          But it is entirely fair to point out that God’s word was not…and is not… on their side. They must throw out the doctrine. I say good for them.

          • But you also have the Society of Friends (Quakers) who were usually at the forefront of social causes [and gave us the first political secularists]. There are many churches which do not have problems with gays either. American and European Judiasm always found room for social agitation.

            You are correct that Mainstream Christianity has always been behind the curve on such things. But mainstream Christianity is not the entirety of religion.

          • Larry, I think we are in rough agreement.
            But where I may differ is that religion, per se is the referring of all problems upward to an unchanging dictator whose word (at least in the Bible) is not to be altered under any circumstance. The imaginary dictator suffers no appeal.

            For practical purposes we free ourselves of the harshest dictates such as “Kill” gays, unruly children, adulterers…etc. We defy them! Thank goodness.

            But my constant concern is that these old Bible laws lie dormant until they become politically useful again. The ongoing effort of building a decent society is disfigured by these fits and starts as politicians play with these age old bigotries.

            As Arizona and other places teach us – the politicians always find it handy to pull out this nonsense when they want to.

            That permanent Bible is always there, looking over our shoulder ready to pounce and snuff out social progress. When progress happens in spite of church doctrine, I’m very happy and applaud it.

            How much better to just dump it altogether. As so many are.

        • Larry,
          Simply because people of faith now support things such as social justice doesn’t mean the faiths themselves support such propositions. for example, women having leadership roles in the church. it’s great to see some churches now promoting women and having female pastors and allowing them to have a voice. but we can’t pretend that, that actually follows the teachings of the bible which is clear, women are to be submissive, remain silent in church, and are not to teach.
          (citations: 1Timothy 2:11-12, 1Corinthians 14:34-35)

      • Thanks for the comment Max. Actually, my view (and a view shared by a large swath of the Christian church) is that religion isn’t about “enforcement of God’s laws” but rather learning to live as Christ lived for the sake of God’s realm on earth. I tend to shy away from legalism and toward grace, to use an old Protestant distinction. We think this is precisely what Christ himself did with the laws of his day: turned away from mere external performance of them and towards where the heart and the intent of the law matched with a God of self-less love.

        You are right, though, in seeing the root of much of this in a Christian legalism. I’m just saying that that’s not the same thing as what “the Church” believes. I work against that sort of Church theology all the time, and I submit many others do too. (A quick look at “mainline protestants” for example, and many in other traditions…not the Southern Baptists, for sure, but American Baptists, emerging evangelicals, Episcopalians, and so on)

  5. This is a difficult issue. On one hand why does sexual sin and sexual behavior become a qualifier when other sins are not so offensive? What is the perceived threat in the normalization of sexual behavior. I suspect the real root of the problem is fear that the Bible is loosing its authority in the church and in the world, which it is. The other issue is facilitating behavior that one finds objectionable. This plays to the human conscience. When the human conscience becomes bound by government then we have lost a core human liberty. It is a shame that human culture has evolved to this state, but we have a situation where no resolution is possible that does not cost someone something. Freedom of association is also a core American liberty. Somehow I think accomodating the conscience of a minority of people will not create a great burden on those who need wedding cakes and such if they are homosexual. I’d rather fear the consequences of erasing human conscience and libertie from our landscape in favor of some government induced group conscience. 1984 looms large.

    • What constitutes a sin is an issue for a church. It has no bearing on what our laws are or should be. We do not base our laws on Biblical principles. Idolatry and adultery are the two most often and considered most egregious sins mentioned in the Bible. Both of them are very much legal in a democratic society.

      In a society such as ours, government is not some entity divorced from those being governed. It is the governed.

      You are talking about closing public, open commerce to people based on sectarian religious animosity. What you call conscience, anyone more honestly would call spiteful bigoted discrimination. The fact that you justify it with religious excuses doesn’t change that. Discrimination is absolutely corrosive to civil liberties and freedoms in general. Legalizing it under the phony pretext of alleged religious belief moreso.

      You are seeking less 1984 and more A Handmaid’s Tale.

  6. personally i think it’s almost a win-win. certainly i don’t want to see these laws passed and i think they are catalysts for discrimination- so props to gov. Brewer for vetoing. on the other hand, gay-rights is one of the prominent issues that is driving young people away from religion. so in the event that such laws are passed in states like Ohio or Kansas, while i certainly hope they don’t, there is a silver lining in that it would perpetuate an “exodus” from religion among young people. what’s that saying about how exposure is the best way to combat bad ideas?

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