Is Religion the Only Tool Left for Legal Discrimination?

While many mistakenly believe that the law protects LGBTQ Americans from employment discrimination (excepting efforts to carve out religious exemptions), the fact remains that this is not universally the case. Such was not the case, for example, for Kimberly Hivey, an Indiana community college professor who was denied full-time work after her employers learned she is a lesbian.

And, while Tuesday’s 8-3 ruling by the Seventh Circuit Court of Appeals that the Civil Rights Act of 1964 prohibits employment discrimination based on sexual orientation represented a victory for Hivey, and Lambda Legal, which brought the case, it had no bearing on those “religious freedom” complaints which aim to use an individual or business’s “sincerely held religious belief” to discriminate against LGBT people. All of which prompts the question: Is “religious freedom” the last frontier of legally permissible discrimination?

Those opposed to LGBT equality are keenly aware that federal law does not protect LGBT people from discrimination in the workplace, housing, education, or public accommodations. As such, right-wing legal groups like the Alliance Defending Freedom, Liberty Counsel, Becket, and the Family Research Council have brought numerous complaints alleging that a client’s “religious freedom” has been burdened by having to serve, recognize, or interact with LGBT people. This framework perpetuates the problematic (and contentious) binary that suggests LGBT rights and religious liberty are mutually exclusive.

Setting aside the slippery-slope tendencies of this framing, the singular focus on opposing LGBT rights as a central tenet of defending “religious freedom” is telling in what it doesn’t try to address. The same attorneys who passionately advocate for faith-based discrimination against LGBT people will twist themselves into knots to avoid admitting that the same argument was used to oppose interracial marriages—which it definitely was.

Of course, modern “religious freedom” has been interpreted so broadly that it now covers all manner of sins. Are you a business owner who doesn’t want to employ trans people? Just say your faith doesn’t allow you to recognize your trans female employee as a woman, which means she’s violating the dress code when she arrives to work wearing clothing that meets your company’s guidelines for women. When she inevitably sues for wrongful termination, you’ll have a federal judge on your side—at least if you live and work in Michigan.

That stunning decision is an outlier among current case law, and is likely to be overturned on appeal, says Elizabeth Platt, director of Columbia University School of Law’s Public Rights/Private Conscience Project. Similarly, she points out, a sweeping Mississippi “religious freedom” law that protected certain beliefs about appropriate sexual activity, legal marriage, and gender identity, has been smacked down in federal court, and was handed a full injunction one day before the law was set to take effect. A three-judge panel on the Fifth Circuit Court of Appeals in Texas seemed cautiously skeptical of the law’s necessity when they heard oral arguments on the Mississippi case earlier this week.

“I think it’s too soon to say that religious exemptions are an effective or legal way to justify LGBTQ discrimination,” Platt told RD in an email exchange today. “Just as courts have in the past refused to grant religious exemptions from laws that prohibit race and sex discrimination, I think courts should—and ultimately will—reject the argument that a person’s religious beliefs entitle them to an exemption from laws that prohibit discrimination on the basis of sexual orientation and gender identity.”

But with a new administration—and a potential Supreme Court Justice—that is hugely deferential to claims of undue burdens on religious expression, it seems unlikely that these culture warriors are prepared to back down any time soon. And as long as legal protections for LGBT people vary so widely by state, city, and locality, whereas freedom of religion (notably not “religious freedom”) is a core value enshrined in the Constitution, it’s safe to assume that those who believe their “traditional values” are under assault will continue to use every weapon at their disposal in an effort to fend off the inevitable. It remains to be seen how successful the American right wing’s understanding of “religious freedom” will be in dismantling the longstanding legal trend of interpreting law to be more inclusive, not less.