by Javen Swanson
Just days before the end of the Minnesota Legislature’s 2013 session, the fate of a bill granting same-sex couples the freedom to marry was far from certain. Minnesotans United staff were furiously counting votes and trying to persuade undecided legislators. Only one thing was clear: the vote would be close.
Enter Representative David FitzSimmons.
A Republican from Albertville, FitzSimmons wanted to find a way for fair-minded legislators to support the bill while addressing the concerns they had heard from constituents. Some Minnesotans worried that the bill would require clergy and faith communities to perform same-sex marriages, even if it violated their religious beliefs.
That, of course, was not the case. The First Amendment to the United States Constitution protects religious freedom. Churches and other worshipping communities are free to practice their faith as they see fit, and that includes deciding which relationships they will recognize and bless.
Nevertheless, FitzSimmons proposed an amendment to the bill that inserted the word “civil” in front of “marriage.” This minor tweak emphasized that extending the freedom to marry to same-sex couples would impact only the legal recognition of such relationships. The state’s marriage laws—those that determine who can receive a civil marriage license—would be applied equally to all couples, regardless of gender. Houses of worship, on the other hand, would retain their First Amendment freedom to decide who can enter into the religious marriages performed in their communities.
The FitzSimmons amendment eased the concerns of those who feared the bill would limit their religious freedom, but it did not change the substance of the bill. Same-sex couples would be granted the freedom to marry, and communities of faith could rest assured of their First Amendment rights. By embracing his proposal, the Minnesotans United team gained Fitzsimmons’s support and secured a handful of other legislators’ votes. No longer was the outcome uncertain. The bill would pass.
Religious freedom is a hot topic these days. All over the country, lawmakers are debating pieces of legislation that claim to guarantee one’s freedom to practice their religion as they see fit. But not all religious freedom legislation is created equal. Some of the proposals being considered are far more sweeping than the harmless FitzSimmons amendment. They would usher in drastic changes that would turn back the clock on anti-discrimination legislation in this country.
After decades of losses and setbacks, the GLBT movement finally seems to have gained the upper hand. We have built political power, run winning campaigns, and won a string of legal victories. It has become increasingly difficult for our opponents to beat us at the polls, in our statehouses, and in the courts.
So it is to be expected that among those who oppose GLBT liberation, a new and more desperate strategy is emerging. That strategy? Carve massive “religious exemptions” into existing laws to expand religious freedom well beyond what the First Amendment provides.
“Religious freedom” is an American value, to be sure. It is found at the heart of the Bill of Rights. But the impacts of the religious exemption laws being proposed in various parts of the country are decidedly un-American. These laws would allow event centers, wedding photographers, and caterers who object to same-sex marriage on religious grounds to refuse services to gay couples. They would allow judges tasked with interpreting and implementing the law to deny gay couples a civil marriage license if their religious convictions lead them to oppose same-sex marriage. In a country with a long history of struggling to stamp out discrimination, religious exemptions would be a giant step backward.
Clergy will never be required to perform a religious marriage that violates their beliefs. Faith communities will always have the freedom to decide who can enter into a religious marriage in their midst. The marriage equality bill that was signed into law last year in Minnesota only reinforced these basic religious freedoms provided by the First Amendment.
But religious exemption laws in other states are charting new territory. Legalizing “civil” discrimination on the basis of religious belief sends us down a slippery slope.
That was the concern raised by some United States Supreme Court justices recently during oral arguments in Sebelius v. Hobby Lobby, a case that is not about GLBT equality but will have a significant impact on the GLBT community. Hobby Lobby is challenging an Obamacare rule that requires employers to provide workers with health insurance that covers contraceptives. The conservative Christians who own the arts and crafts retailer oppose the use of contraceptives on religious grounds. They argue that being forced to provide contraceptives for Hobby Lobby employees is a violation of their religious freedom.
During oral arguments in the case, Justices Sonia Sotomayor and Elena Kagan challenged Hobby Lobby’s position. Can employers claim religious objections to blood transfusions, immunizations, or medical products that include pork? What about sex discrimination, minimum wage, family leave, or child labor laws? Allowing business owners to pick and choose which laws they will follow based on their religious beliefs makes it possible for employers to shirk almost any rule or regulation they don’t like. Just find a way to claim some sort of religious objection and you can do almost anything you want.
Religious conservatives have learned to wield faith to justify discrimination. It is GLBT-affirming people of faith who must shape our movement’s response.
One week before the Supreme Court heard the Hobby Lobby case, 47 religious leaders, including myself, released a statement supporting universal access to contraception. “Religious freedom,” we said, “means that each individual has the right to exercise their own beliefs and the right not to have others’ beliefs forced upon them.”
This concept of religious freedom is at the heart of another lawsuit recently filed in North Carolina. That state, like others that have voted to limit the freedom to marry, bars same-sex couples from receiving marriage licenses. But North Carolina law goes even further. Clergy there are banned from performing marriage ceremonies for couples who don’t have a license. In North Carolina, your pastor could pay a fine and spend up to 120 days in jail for performing your same-sex wedding.
The United Church of Christ, a denomination whose national governing body endorsed marriage equality in 2005, is suing the state of North Carolina. The law, they say, violates their religious freedom guaranteed by the First Amendment. Yes, the state can make same-sex marriage illegal. But the state cannot tell clergy and faith communities which relationships they may celebrate and bless.
This lawsuit is turning things on their head. Until now, “religious freedom” has been the rallying cry of religious conservatives who oppose GLBT equality. Today, a different message is getting out: Religious freedom means clergy and communities of faith have the right to honor and bless same-sex couples, even when the state has made that love illegal. Perhaps surprisingly, it is North Carolina clergy and people of faith who are leading the push-back against that state’s discriminatory laws.
Religious freedom has become the new battleground in the struggle for GLBT liberation. In the last few months, many states have debated sweeping religious exemptions laws that could erode hard-won protections for GLBT people and other marginalized groups. Arizona Governor Jan Brewer vetoed a religious exemptions bill in February under intense pressure from GLBT activists, business leaders, and progressive people of faith. More recently, anti-GLBT groups in Oregon announced in May they were suspending their campaign to force a statewide vote on whether to adopt a religious exemptions law. Mississippi, on the other hand, became the 18th state to adopt such a law when Governor Phil Bryant signed the Religious Freedom Restoration Act there in April. The religious freedom debate is likely to continue for the foreseeable future.
The GLBT movement must push back against attempts to carve massive religious exemptions into law—and it must start by embracing progressive people of faith as allies. Rather than bashing religion, let’s amplify the voices of religious leaders who are lifting up the best of their traditions. Let’s shine a light on those who insist that their faith calls them to alleviate suffering and strive for justice. People of faith may be unlikely allies in the quest for GLBT liberation—and that’s exactly why it’s time to put them front and center.
Javen Swanson is the Interim Faith Work Director at the National Gay and Lesbian Task Force and a future pastor of the Evangelical Lutheran Church in America. The National Gay and Lesbian Task Force builds the power of the lesbian, gay, bisexual and transgender community from the ground up. The Task Force is the country’s premier social justice organization fighting to improve the lives of GLBT people and working to create positive, lasting change and opportunity for all. More at www.thetaskforce.org.