One of the most disturbing aspects of the current fervor for religious exemption laws is how quickly many supposedly progressive backers are either downplaying the laws as unimportant or even supporting passage. They dress themselves up with libertarian wrappings to hide that their excuses and justifications are nothing more than moral bankruptcy.
Douglas Laycock, a University of Virginia professor and a leading lawyer for the rightwing Becket Fund for Religious Liberty, was recently profiled on the Huffington Post, and he is a prime example of this type of illogical apologia. Supposedly a supporter of marriage equality and LGBT civil rights, he also spearheaded an open letter to Arizona Governor Jan Brewer on behalf of the Alliance Defending Freedom, arguing in favor of passage of the state's embarrassing SB-1062 legislation [pdf] intended to allow businesses the right to refuse service to LGBT people under the guise of "religious liberties."
Laycock is not only promoting far-reaching and dangerous rationalizations for discriminating against LGBT people, but also for the rights of women to control their own healthcare decisions. The Becket Fund is a high profile supporter of the current Hobby Lobby Supreme Court case arguing that the fabric and sewing supplies retailer should be able to cherry pick services included as part of company-provided health insurance. The owners of the company don't want to provide coverage for any contraceptive devices and are claiming that their religious beliefs about sex trump the rights of the employee to have equal access to a baseline standard of care.
These libertarian ideas and their supporters are being touted by noted anti-gay leaders like Maggie Gallagher, former head of the National Organization for Marriage. In an interview with the Huffington Post, she specifically acknowledges the letter to Governor Brewer - and calls out Laycock by name - as her reason for supporting SB-1062. NOM has touted Laycock's work in the past, praising him in 2009 for a letter he wrote to the Connecticut legislature urging them to pass same-sex marriage equality legislation, but encouraging them also to include a religious freedom clause as a political tactic to pacify the religious right.
"[I]is it in the interest of the gay and lesbian community to create religious martyrs in the enforcement of this bill," Laycock wrote. "To impose legal penalties or civil liabilities on a wedding planner who refuses to do a same-sex wedding, or on a religious counseling agency that refuses to provide marriage counseling to same-sex couples, will simply ensure that conservative religious opinion on this issue can repeatedly be aroused to fever pitch. Every such case will be in the news repeatedly, and every such story will further inflame the opponents of same-sex marriage. Refusing exemptions to such religious dissenters will politically empower the most demagogic opponents of same-sex marriage. It will ensure that the issue remains alive, bitter, and deeply divisive."
In a press release issued after the Connecticut legislature provided an exemption, Gallagher also hewed the line that by giving the religious right the ability to reject civil law, civil rights advocates and anti-gay zealots could come together in harmony.
"We are just grateful that the Connecticut legislators acknowledged and addressed the serious potential implications of same-sex marriage for traditional faith communities," she wrote. "We hope this decision represents a change of heart among gay marriage advocates and a new willingness to accept broad conscience protections."
Laycock isn't alone, of course, in his misguided attempt to straddle the fence between civil rights and religious liberties. Around the nation, politicians and advocates are wrestling with the issue. But while these struggles are localized, they all have national implications.
In Indianapolis, two former city councilors wrote an op-ed for the Indianapolis Star condemning the city for investigating a local bakery who refused to make cupcakes for an LGBT youth group. The two were the lead sponsors for the human rights ordinance that held that LGBT people couldn't be discriminated against in public accommodations, but claimed that instances like that weren't what they had in mind when they sponsored it.
"In our view, it would be wrong to force a business to support a political project with which its owners do not agree," they wrote. "While a Jewish printer might be compelled by the law to offer her services to somebody who claims to be an Aryan, we do not expect that the ordinance would compel her to print banners promoting a march by the Aryan Nations."
Ignoring the offensive comparison between white supremacists and LGBT people, the underlying premise is fundamentally flawed. The bakers were discriminating solely because the purchasers were gay and lesbian - a protected class under the city's non-discrimination laws. Aryan Nation members are not a protected class and the hypothetical printer wouldn't be discriminating against them based off their skin color or religious beliefs.
What both arguments have in common is that if their interpretations of religious liberty exemptions is allowed to spread unchecked, they will allow blatant discrimination to flourish. Using their logic, if the Aryan Nation members claimed to be a church and that white supremacy was part of their organized religion (and several churches have historically used passages of the Bible to justify slavery and racial discrimination), their members should be able to legally discriminate against anyone. Not only would the church itself be able to discriminate, but their members could also have the right to refuse service to non-white customers, patients, or clients.
Should Baptist doctors have the right to refuse to treat gay patients? Can a member of a church organized around white supremacy refuse to back a wedding cake for an interracial couple? Should a consortium of evangelical churches running a charter school staffed by secular faculty have the ability to fire a science teacher for marrying her same-sex partner? According to this twisted use of religious freedom laws, all three scenarios should be allowable.
As the current Hobby Lobby case awaits a decision by the Supreme Court, it is crucial that LGBT advocates pay attention to both the major players and the outcome. Its fate is intertwined with the fight for LGBT civil rights; if corporations have religious rights and laypersons can claim any religious belief to justify their own prejudices, the fight for full equality has become ten thousand times more difficult. After all, we can already see the same players lining up to provide cover for intolerance, prejudice, and discrimination.