Religious Liberty: Sexual Orientation Compared To Racial Discrimination

4/16/17

Racial discrimination and sexual orientation discrimination in relation to religious liberty: 

This note is prompted by an essay I just read that argued for, among other things, religious liberty to include the conscience based right to discriminate on the basis of sexual orientation, for example not to provide a public service for a gay marriage. 

Please forgive my lack of nuance and any errors. I'm not a U.S. lawyer and this is essentially, but not totally, off the cuff. I did quickly look up a thing or two. 

As I understand it, basically and generally religious liberty ends where other law begins. So that, for one example, the unburdened exercise of religion provided in America by the federal and various state RFRAs--Religious Freedom Restoration Acts--reaches one of its limits when it causes discrimination on the basis of a "protected class." A protected class is a term of art: 

....In United States federal anti-discrimination law, a protected class is a group of people with a common characteristic who are legally protected from discrimination on the basis of that characteristic...

Such characteristics include race, color, religion, national origin. States may in their own legislation on protected classes add characteristics, such as gender identity, not covered federally. 

(I'm unsure of whether sexual orientation is a federally protected class. My at hand and working sense here is that it is for some purposes (say) in employment but not for other purposes. I'd be obliged to be enlightened on that point.)

In a nutshell, no one state licensed can in providing public services exercise their religious liberty if doing so discriminates against a protected class, for example refusing to bake a cake for an interracial marriage. 

In my view, and again very broadly speaking, at least two of the pre-legal informing components in the creation of protected classes are rationality and cultural resonance, which is to say: 

the utter absence of any rational basis to discriminate on the basis of a particular and evident characteristic, (say) skin color,

married to the felt understanding of that absence throughout society. 

Sometimes courts on the basis of rationality will judicially pioneer lahead of sufficiently felt understanding. Sometimes felt understanding will precede lagging judicial recognition. 

So to get to a case: some states don't recognize sexual orientation as a protected class; some do. Therefore, in the iconic example, in some states a Christian baker might rightfully refuse to bake or decorate--some case law distinguishes between baking and decorating--a cake for a gay wedding in the exercise of a sincerely held religious belief; in other states that same baker would be acting unlawfully and be subject to penalty. 

To be sure, in neither state could that baker refuse with impunity either to bake or decorate a cake for an interracial marriage, race being a universal defining characteristic of a protected class, with sexual orientation being a defining characteristic of a protected class in some jurisdictions but not in others. 

So the issue boils down to this, in *one* way of framing it: is there any rational basis for this kind of sexual orientation discrimination whereas there is none for racial discrimination? Why, in other words, shouldn't sexual orientation be an across the board basis of a protected class just as skin color is. 

Me, I can't think of any reason. 

So, I'd say that (say) bakers' unburdened exercise of their religious liberty should stop short where the law making sexual orientation a protected class ought begin. And, further, just as talk of "accommodating" racially prejudiced attitudes, religiously  based or not, sounds to any fair minded person unacceptably wrong, so should any talk of "accommodating" homophobic attitudes, whether religiously based or not. The essential parallel between the cases rests, yet again speaking broadly, on skin color being as incidental to the imperative of equal treatment as is sexual orientation. 

When it comes to sexual orientation it's time for cultural resonance and rationality to marry each other and to consummate their marriage. 

A further word, just to put an emphatic point on all this: just as a religious leader is acting illegally in refusing to officiate at interracial wedding, so it should be illegal to refuse to officiate at a gay wedding.