Written by Don Byrd
For those of us who care deeply about religious liberty issues, and who value thoughtful conversation about the challenges and careful balancing often involved in addressing our first freedom, the last few weeks have been troubling. In the past, religious liberty has often been one of those concerns that inspired people to come together. These days, I often find it difficult to distinguish religious liberty discussions from any of the other politically charged, rhetorically inflamed, all-or-nothing, polarizing throw downs that typify most of our policy debates.
Instead of helpful frames of reference, advocates draw battle lines. Instead of solutions, they seek victory.
This is nowhere more apparent than in the recent disappointing trend of legislative efforts designed to respond to the Supreme Court’s ruling in Obergefell, which ensured the right of same-sex couples to marry. Rather than an honest discussion about the potential impact of the decision on sincere religious objections to same-sex marriage, the discussion has been presented as a stark choice between religious freedom and civil rights.
Some legislators inaccurately proclaim that clergy will be forced to marry same-sex couples if state legislatures fail to act. They would have us believe that religious freedom as we know it, and perhaps civilization itself, will crumble in disrepair if they don’t enact sweeping protections for those who believe they must have nothing to do with same-sex couples, or at least not with the marriages that unite them.
At the same time, many opponents of any form of religious freedom protection wrongly portray all religious objectors as bigots, and any attempt at accommodation as a threat to equality.
The legislation we have been left with at the end of that brand of debate is a mash of misleading overreach, like the bill that was signed into law in Mississippi, the proposed constitutional amendment working through the legislature in Missouri, or the bill that remains in committee in the U.S. Congress, all of which purport to protect religious liberty, but do so in a way that creates more conflict than it resolves.
It is important to distinguish between the recent controversial laws in Mississippi, Georgia, and North Carolina – all three of which are very different – but I was otherwise impressed by this week’s thoughtful column by the USAToday’s editorial board about the need for a different kind of debate to address these issues. Here is an excerpt:
What is important for both sides to remember is that the impulse to protect Americans’ right to live according to their religious convictions was born in Europe’s bloody history of religious war and discrimination. Religious freedom is as important a bulwark of inclusion as the right to equal treatment regardless of sexual orientation.
Where laws in Mississippi, Georgia and North Carolina go wrong is using a shotgun approach to protecting religious freedom when what is really needed is a scalpel. For the most part, these state laws are not designed to walk a careful line between protecting religious freedom and ensuring the rights of gays and lesbians. Instead, the broad licenses to discriminate reflect the local political power of religious conservatives, not an effort to find solutions.
When rights like these conflict, it’s in the best American tradition to work out an accommodation. The force of government should be on the side of protecting the broadest possible scope for both rights, not on the side of rank discrimination.
As BJC General Counsel Holly Hollman recently stated, “how we protect religious liberty is as important as why we protect it.” (my emphasis).
