Publius On: “Religious Freedom” and LGBT Rights

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Op-ed by Publius, Contributing Writer

“Religious freedom” is a farce.

And I do not mean this in the sense of individual practice, as was intended by the Constitution, but in the way that politicians like Mike Pence and evidently, the House of Representatives seek to claim this as a means to promote anti-LGBT hatred.

Back in May, the House passed a new National Defense Authorization Act (NDAA) which “would allow federal contractors to fire employees for being lesbian, gay, bisexual or transgender,” and will be put up for final approval this Congressional session. This acts much in the same vein as the First Amendment Defense Act (FADA) which would prevent the federal government from taking “discriminatory action” against those who actively discriminate against LGBT citizens—this bill also includes refusing federal services, giving such people access to federal contracts. Vice President-Elect Mike Pence has also seen to it that in his home state of Indiana business owners have the right to refuse service to LGBT Hoosiers, citing his Religious Freedom Restoration Act (RFRA).

What the framers of these laws fail to recognize, or rather willfully ignore, is that the First Amendment only operates on an individual basis. It gives individuals protection to worship however they please, their right to “free exercise,” so long as it does not influence or impact another person. One person’s religious freedoms end where another begins. The act of providing services to LGBT individuals does not force another to violate their religious code, because doing their job is not an implicit stamp of approval, nor is it forcing said person to engage with the homosexual behaviors their religion may oppose.

What acts like these do allow is for people to impose their religion on LGBT citizens, when in theory the First Amendment should also provide individuals freedom from religion. For example, refusing business to LGBT people on religious grounds is, in effect, projecting religious morality onto LGBT consumers and forcing them to adhere to religious rules of which they may not agree with, support or engage with; that is religious oppression. In allowing discrimination against LGBT folk on a religious basis, various state and federal elected officials have effectively stated that one individual’s personal religious affiliation takes precedence over the right of an entire community to have equal access to the capitalist marketplace, employment opportunities and other services.

This isn’t the first time “religious freedom” has been used to refuse services and access to resources to a specific community: segregationists, in the years following Reconstruction, used their religion as a means to violently police the black community. Bob Jones, and Evangelist and founder of Bob Jones University, once states that “if you are against segregation and against racial separation, then you are against God Almighty because He made racial separation in order to preserve the race” (1960). The Christian religion, therefore, became a rallying point for segregationists; it was seen by them as a First Amendment right to be able to legally segregate people of color from whites. Notably, in Bob Jones University v. United States (1983), a case in which religion was used as the basis for segregation within the university, the U.S. Supreme Court determined that the IRS could deny tax exemptions when a religious university engages in practices contrary to government public policy. Unfortunately for religious racial segregationists, this included ending racial segregation and established a precedent for the federal government to “justify a limitation on religious liberties by showing it is necessary to accomplish an ‘overriding governmental interest.’”Not all burdens on religion are unconstitutional.

Make no mistake about it: “religious freedom” in the way it functions for these politicians is de jure segregation—segregation in law. It has created a space for religious individuals to extend what they claim is their First Amendment right to the policing of spaces where LGBT individuals are welcomed, what employment they may have, what sexual conduct they are personally allowed to engage in and what services they have access to—this includes healthcare. FADA most notoriously allows hospitals and doctors with religious affiliations to refuse care, no matter how dire the situation, to LGBT individuals. The new NDAA allows those with federal contracts to use discriminatory hiring practices in refusing employment to LGBT people—something that is absolutely a violation of federal law when it comes to discrimination against other minorities, according to Title VII of the Civil Rights Act (1964). “Religious freedom” therefore becomes not about individual free exercise of religion, but about explicitly denying the rights of life and liberty to LGBT folk by allowing religious others to police their movement and access to services and opportunity.

The U.S. Government has an obligation to protect the rights of all citizens, and this includes ensuring the civil rights of its LGBT constituents. Operating under the guise of “religious freedom,” certain individuals and politicians have seen fit to bastardize the First Amendment, using it as an excuse to openly discriminate against LGBT citizens and threaten their livelihood, both in terms of economic independence and right to health care services. It is no longer about the religious freedoms of the individual, but forcing the LGBT community to adhere to the religious principles of others as a means to limit the free existence of LGBT individuals.

If John Adams, one of our nation’s Founding Fathers, can proudly sign his name to a treaty which states “the government of the United States is not, in any sense, founded on the Christian religion,” then most assuredly our present government should take it upon itself to ensure that the religious tyranny of others in no way becomes law. Acts like FADA, the NDAA and the RFRA allow for individuals to use religion as an excuse to limit the liberties and freedoms of our LGBT citizens, creating a modern form of segregation, particularly when it comes to the federal government. Our LGBT citizens are placed at unnecessary risk due to their exclusion from the Civil Rights Act; their rights are unprotected, their personal sexual expression fundamentally oppressed should they wish to have the same protections offered their heterosexual counterparts. This violation of liberty cannot stand and it is both the U.S. government’s responsibility and our own obligation as citizens to resist this form of tyranny by any means.

Your obedient servant,



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