The law would specifically allow religious organizations and other businesses to openly discriminate against people based on sexual orientation. HB 1523 is a clear and obvious violation of the First Amendment prohibition against the government establishing a religion and also a violation of the Fourteenth Amendment, which guarantees citizens equal protection under the law, so it will almost definitely be struck down when the Fifth Circuit hears it next year.
Part of the reason such a blatantly unconstitutional law was enacted by a state legislature and has made it this far through the legal system is because those who created and support it live in one political echo chamber and those who oppose it live in another. Each side is absolutely convinced that their position is not just right but morally imperative and legally sound and there is little to no actual dialogue or middle ground between them.
On one side of this debate are those who believe that their religion prohibits homosexuality and, by extension, gay marriage. This is only one interpretation of this religion; one of the plaintiffs challenging the law is also a religious organization. But those who adhere to this anti-gay interpretation believe that being involved in any way in a gay wedding or marriage, from signing a marriage certificate to performing the marriage ceremony to baking a cake or delivering flowers, is a violation of their right to practice their religion.
On the other side are those who believe that when a person refuses to perform a task for a gay person or couple that they would perform for a straight person or couple then they are violating the gay person or couple’s rights to equal protection under the law. And that, if the state law indicates that such a refusal is allowed based on religious grounds, then that law is in violation of the First Amendment.
Both sides believe that they have good legal standing and common sense illustrations of why they’re right. The anti-gay side can say that they are allowed to practice their religion as they believe it should be practiced. And furthermore they could argue that they are both religiously and morally opposed to gay marriage and that our legal system does not compel people to do work that they think is immoral. For example, a lobbyist cannot be forced to take a job advocating for looser tobacco laws even if they are available and have the means to do the work. And an advertising company would not be made to create ads promoting guns just because the job was offered to them. So, the logic seems to go, why should a priest or a caterer or a county clerk be forced to work on a wedding that they find morally wrong?
Those on the other side can argue that our laws do not allow discrimination against other types of people even if it is religiously motivated. For instance, if a business owner is a member of a strictly pacifist faith, like a Buddhist or a Quaker, that does not give them the right to refuse service to soldiers. And several religions have different mandates for what activities men and women can engage in, but we still don’t allow religious-based discrimination against women even by people from those religions. And our laws would not allow a baker to refuse to bake a birthday cake for someone just because that person is gay so why would they be legally allowed to refuse to bake a wedding cake for that person?
Reconciling these two sides seems problematic, because the first group sees this issue mainly in terms of not being forced to do work that they think is wrong, while the second side sees this in terms of a group of people being discriminated against because of who they are. Ultimately this is a legal question and so we have to look at our laws for clarification and our laws demand that if religions are going to be involved in activities that have legal ramification, like employment, financial transactions, and marriage, then religious institutions must keep up as our laws inch toward equality. In other words, you can be morally opposed to a task but you do not get legal protection for being “morally” or religiously opposed to a type of person.
In this country, no organization, including a church or other religious entity, is allowed to discriminate against people of a certain race or against women, and religions also cannot be allowed to discriminate based on any other criteria, including sexual orientation. Marriage may be a sacred institution, but it’s also a legally-recognized union and anyone whose job it is to perform that legal union must do so in accordance with the laws of this country, which demand that people be treated equally. If a person’s job involves some other wedding-related task like cooking or providing flowers, then they cannot pick and choose their clients based on sexual orientation any more than they would be allowed to work only for clients of a certain race or clients of a certain religion for that matter.
The fact that our federal laws were discriminatory for so long meant that the type of individual discrimination that HB 1523 is trying to allow wasn’t an issue until recently. But the previous failings of our federal government don’t make HB 1523 any less of a violation of the First Amendment and it doesn’t make religiously-motivated discrimination any less wrong or less illegal. As the saying goes, your right to swing your fist ends where the tip of my nose begins and, similarly, one person’s right to practice their religion ends where another person’s rights to equal protection under the law begins.
Alexis Chapman is a Political Consultant and Writer specializing in policy analysis, from international law to local ordinances. She’s lived in Australia, Ghana, Vermont, Hawaii, and Texas and has worked for small and large NGOs, state legislature, industry associations, and a variety of publications. She is a regular contributor to Political Storm and you can find her on Twitter @AlexisAPChapman.