Sorry, National Review: “Religious Freedom” Bills Do Permit Bigotry

Image from Project Q Atlanta, January 2017

National Review writer Alexandra Desanctis on Wednesday published a piece purporting to explain how recent conservative efforts to defend “religious freedom” aren’t really about discriminating against LGBT Americans. Since she used a Salon piece written a day earlier by a former colleague of mine, Nico Lang, to illustrate how liberals are “maliciously mischaracteriz[ing]… FADA and other religious-freedom protections,” it seems only fair to issue a point-by-point response to the specious claims made in the National Review.

It is deeply ironic to claim, in the piece’s opening argument, that Lang is deliberately mischaracterizing these legislative and executive efforts, when Desanctis goes on to misrepresent almost every legislative and executive action she discusses. I can’t speak to any “malicious” intent of the author, but a cursory examination of her contemporaries reveals a lopsided tendency to use religion to justify anti-LGBT discrimination, then fall eerily silent when the religious freedom of non-Christians is threatened.

Desanctis complains that Lang betrays his biases immediately, by putting the phrase “religious freedom” in quotes. But Lang, a seasoned reporter I’ve worked with in my former capacity as managing editor of The Advocate, is on solid journalistic ground here. The weaponized kind of “religious freedom” at issue in President Trump’s draft executive order is precisely the modern mutation of this foundational principle, which undoubtedly deserves to be placed in scare quotes, as publications ranging from New York magazine to the Wall Street Journal do.

The author’s complaints about Lang willfully misrepresenting the facts are particularly laughable in the face of the outright falsehoods Desanctis offers in response. Most immediately and demonstrably, Desanctis implies that “religious freedom” bills and the executive order are concerned only with marriage. And while the Supreme Court’s 2015 ruling in Obergefell v. Hodges did directly deal with marriage equality (tossing a single sentence in Justice Kennedy’s masterful opinion to the anti-equality concerns of religious objectors), nearly every legislative effort billed as a protection of religious liberty since then has reached far beyond the county clerk’s office.

Desanctis herself mentions the First Amendment Defense Act (FADA) as one prominent example of legislation introduced “to protect religious Americans who believe in heterosexual marriage.” Apart from neglecting to note that FADA does not protect religious Americans who believe in marriage equality (because they do exist), Desanctis declines to mention that the bill, as introduced last year, included provisions that would allow faith-based discrimination against LGBT people, single mothers, and people of minority faiths.

Given that Texas senator and Tea Party favorite Ted Cruz has already promised to reintroduce FADA, and like-minded legislators are in turn salivating at the friendliness of the new administration to their concerns, it’s dishonest to suggest that any future iteration of FADA would be more limited in scope than the sweeping bill introduced last year.

Desanctis claims that “religious-liberty legislation offers First Amendment protections to those Americans who hold a different view of marriage from that of the government,” which is, in a limited sense, true. But these bills pointedly do not provide First Amendment protections for those Americans whose faith-informed view of marriage differs from the government in, say, the number of spouses a person should be allowed to have, or with respect to the gender, age, or religious affiliation of the betrothed.

Similarly, Desanctis’ argument falls apart when she tries to follow the claim to its logical end. Certainly, she contends, it should be legal for a Christian baker to refuse to bake a cake for a same-sex wedding, but that same baker should be required to bake a birthday cake for the same client.

But what if the birthday cake is for a child with same-sex parents? Under the draft executive order, a baker would be entirely within his right to refuse to bake that child’s cake because the child did not emerge from the particular type of union that the baker finds morally acceptable.

Not only do religious freedom bills in general concern themselves with more than just marriage, but even the leaked draft order does so as well, explicitly targeting the validity of transgender identities by claiming that gender is an immutable characteristic defined by biology, anatomy, and a doctor’s declaration at birth. By definition, the Americans who reject this biological essentialism are those who have experience with someone (or perhaps are themselves someone) whose gender identity differs from that which they were assigned at birth. Everyone else—indeed, the vast majority of Americans—are unlikely to critically analyze this provision, since most people’s sex assigned at birth corresponds with their internal sense of gender identity. This fact, however, has no bearing on the continued existence of trans people in America.

The draft order goes even further to enshrine what is essentially conservative Christian ideology into federal policy when it declares that “life begins at conception.” This is, of course, a well-worn argument used by anti-abortion advocates, but there isn’t anything even close to scientific consensus on this question. Once again, the executive order carves out protections for Americans who hold this particular religious belief about the beginning of life, but offers no accommodation for Americans who have differing and sincerely held religious convictions about the point when life begins.

It’s hard to single out one particular claim that emerges as the most absurd in the piece, but the allegation that “the truth” has been obfuscated by the left may well take the cake (just not to a gay wedding, of course). After directly equating “religious Americans” and “religious voices” with the voices of conservative Christian Americans, Desanctis performs an impressive bit of rhetorical acrobatics.

“These supposed social-justice warriors will never admit the truth,” she writes. “That there isn’t a single U.S. law permitting discrimination against individuals based on sexual orientation.”

Talk about obfuscation. It is true there is no federal or state law that says “it’s OK to turn away the gays if God said you could,” but there’s also no federal law protecting LGBT people from discrimination in the workplace, in housing, in healthcare, or in public accommodations. That bears repeating, since nearly 70 percent of Americans believe it’s already illegal to fire someone for being LGBT.

But in reality, there is no federal law that bars employers, landlords, or business-owners from refusing to hire, rent to, serve, or promote someone based on their sexual orientation or gender identity. Some states and localities have passed laws and ordinances that prohibit discrimination based on those characteristics, but those have faced stark opposition and backlash—most notably in the case of North Carolina’s transphobic House Bill 2, which was drafted and passed in direct response to Charlotte’s city council updating its nondiscrimination ordinance to include LGBT people.

To be clear: in 30 states, it is expressly legal to fire someone because they are transgender. In 28 states, an employee could marry their same-sex spouse on Sunday, then be fired on Monday for putting a wedding photo on their desk. These aren’t hypothetical dilemmas—real people lose their livelihood every year because a supervisor didn’t approve of their sexual orientation or gender identity.

So while Desanctis points out that there is currently no law directly approving anti-LGBT discrimination, the policies she’s advocating for in her piece would change all that. The draft executive order, FADA, and similar “religious liberty” efforts nationwide would create a blanket license to discriminate, provided one claims their “sincerely held religious belief” has been offended. But even here, it’s important to note that the word “religious” is intended to mean “conservative Christian.”