The collision of two core American values — freedom of religion and freedom from discrimination — is prompting a showdown in legislatures and courts across the country.
For some conservatives, religious freedom means the right to act on their opposition to same-sex marriage and other practices that go against their beliefs. LGBT advocates and their allies, meanwhile, say no one in the United States should face discrimination because of their sexual orientation.
President Trump is said to be considering an executive order to bar the federal government from punishing people or institutions that support marriage exclusively as the union of one man and one woman. The language is similar to a bill expected to be reintroduced by Republican Sens. Ted Cruz of Texas and Mike Lee of Utah called the First Amendment Defense Act.
After a widely circulated draft order aroused considerable opposition from the LGBT community, no further action was taken. Asked recently whether such an order might still get signed, White House spokesman Sean Spicer said only that Trump "will continue to fulfill" commitments he had made. Advocates for executive action say they do not expect new developments until Trump's nominee for the Supreme Court, Neil Gorsuch, has been confirmed.
The debate's heart: What "exercising" one's religion means
Under the First Amendment to the U.S. Constitution, Congress is barred from enacting "an establishment of religion," but neither can it prohibit "the free exercise thereof." The question under current debate is what it means to "exercise" one's religion.
If a football coach is not allowed to lead his team in a public prayer, or a high school valedictorian is not given permission to read a Bible passage for her graduation speech, or the owner of a private chapel is told he cannot refuse to accommodate a same-sex wedding, they might claim their religious freedom has been infringed. Others might argue that such claims go against the principle of church-state separation, or that they undermine the rights of LGBT people to be free from discrimination.
Legislation either to uphold LGBT rights or to limit them in the name of protecting religious freedom has advanced in several states, and further court battles are likely.
One of the thorniest cases involves Catholic Charities, whose agencies long have provided adoption and foster care services to children in need, including orphans. Under Catholic doctrine, the sacrament of marriage is defined as the union of a man and a woman, and Catholic adoption agencies therefore have declined to place children with same-sex couples.
When Massachusetts (and other jurisdictions) redefined marriage to include same-sex couples, making it illegal to deny adoption to them., the Catholic agencies closed down their adoption services and argued that their religious freedom had been infringed.
"One of the major activities of the [Catholic] church, going way back, was to look after the orphans," says Stanley Carlson-Thies, founder of the Institutional Religious Freedom Alliance. "For that to be illegal unless the religious people change their standard, seems to me ... unfortunate."
But to the LGBT community and its supporters, a refusal to place a child for adoption with a same-sex couple is unacceptable discrimination against people on the basis of their sexual orientation. Those who oppose anti-discrimination efforts are often portrayed as out of step with the growing public acceptance of same-sex unions.
"I can't think of a single civil rights law that doesn't have some people who are unhappy about it," says Karen Narasaki, a member of the U.S. Commission on Civil Rights. "But once the country has said, 'Well, we believe that people who are LGBT need to be protected from discrimination,' then how do you make sure that happens?"
The commission's report on the religious freedom vs. anti-discrimination debate, published last September, came down squarely on the anti-discrimination side. The commission recommended that "civil rights protections ensuring nondiscrimination" were of "preeminent" importance and that religious exemptions to such policies "must be weighed carefully and defined narrowly on a fact-specific basis."
The commission chairman at the time, Martin R. Castro, went further with a statement of his own, saying, "The phrases 'religious liberty' and 'religious freedom' will stand for nothing except hypocrisy so long as they remain code words for discrimination, intolerance, racism, sexism, homophobia, Islamophobia, Christian supremacy or any form of intolerance."
The commission report sparked a protest letter signed by 17 faith leaders, arguing that the report "stigmatizes tens of millions of religious Americans, their communities and their faith-based institutions, and threatens the religious freedom of all our citizens."
One of the signers, Charles Haynes, director of the Religious Freedom Center at the Newseum Institute in Washington, says religious conservatives are entitled to make claims of conscience.
"We may not like the claim of conscience," Haynes says, "but you know, we don't judge claims of conscience on whether we like the content of the claim. We are trying to protect the right of people to do what they feel they must do according to their God. That is a very high value."
Haynes himself says LGBT rights and same-sex marriage "are very important" but that supporters of those causes "cannot simply declare that one side wins all."
"Nondiscrimination is a great American principle — it's a core American principle — as is religious freedom," Haynes says. "When you have two important American principles coming into tension, into conflict with one another, our goal as Americans is to sit down and try to see if we can uphold both."
Exercising "freedom to worship" in life
Not all faith leaders are convinced, however, that the push for LGBT rights is jeopardizing the religious freedom of people who hold conservative beliefs about sexuality and marriage.
During a recent appearance before the Council on Foreign Relations, Bishop Michael Curry, leader of the Episcopal Church in the United States, said he has witnessed the persecution of Christians in other parts of the world and doesn't see anything comparable in the United States.
"I'm not worried about my religious freedom," Curry said. "I get up and go to church on Sunday morning, ain't nobody stopping me. My freedom to worship is protected in this country, and that's not going to get taken away. I have been in places where that's been infringed. That's not what we're talking about."
Curry's reference only to "freedom to worship," however, missed the point, according to some religious freedom advocates. They say they want the freedom to exercise their faith every day of the week, wherever they are — even if it means occasionally challenging the principle of absolute equality for all.
"We can't use equality to just wipe out one of the [First Amendment] rights," Carlson-Thies says, "or say you can have the right, as long as you just exercise it in church, but not out in life."
Carlson-Thies is one of several conservatives who support a "Fairness For All" initiative to forge a compromise between advocates for LGBT rights and religious freedom, but the effort has had little success so far. The LGBT community and their allies have been cool to the notion of compromising their cause, while a group of more strident religious freedom advocates made clear their own opposition to the recognition of sexual orientation as a status worthy of civil rights protection.
Legal analysts are divided in their assessment of the debate. A federal judge, ruling on a Mississippi religious freedom law, concluded that by protecting specific beliefs, the bill "constitutes an official preference for certain religious tenets," and may therefore be unconstitutional. Other laws and proposals, however, are written in support of beliefs held by several different religions and thus may not run afoul of the First Amendment's bar on "an establishment of religion."
John Inazu, a law professor at Washington University in St. Louis, whose book Confident Pluralism lays out an approach that might help bridge differences between LGBT and religious freedom advocates, says efforts at reconciliation face long odds.
"There were efforts early on about some kind of compromise," he tells NPR in a recent interview. "I think those are less and less plausible as time goes on and as sides get factionalized. It's hard to see in some of these cases how there would be an outcome that is amenable to everyone, and so I think we're seeing these cases with us for a long time."
STEVE INSKEEP, HOST:
Let's back away from the news for a moment, back away from individual stories to see a theme that many of them share. It's like we're backing away from a tree to see the forest. The theme is a conflict between core American values, religious freedom and equality. NPR's Tom Gjelten has been covering this story. Hi, Tom.
TOM GJELTEN, BYLINE: Hi, Steve.
INSKEEP: So what are some of the news stories that share that theme?
GJELTEN: The most recent example is we've heard about a draft executive order from the White House that's floating around that would effectively bar the government from punishing people or institutions who support marriage exclusively as between one man and one woman.
INSKEEP: And that's being cast as a religious freedom measure, I guess.
GJELTEN: This is in the name of religious freedom. It's produced a lot of controversy. We could still see something coming out of that.
INSKEEP: And there's also legislation that would do something similar. Is that right?
GJELTEN: Similar language from Ted Cruz. It's called the First Amendment Defense Act because, again, it's about the idea of religious freedom.
INSKEEP: And we've seen numerous news stories that feature that phrase religious freedom in recent years. So is this just about last November's election then?
GJELTEN: No, not at all, Steve. There's a culture war in this country. Americans in recent years, as you know, have become more secular. They don't go to church as often. Bible reading, prayers in public are now frowned upon.
And, of course, in addition to that, a lot of people have become much more supportive of LGBT rights. And in reaction to that, biblically conservative Americans feel that their faith is under assault. And so there is a real reaction to those trends. That's the background to this.
INSKEEP: People are saying, if I have to interact with certain people in certain ways, it's a limitation on my religious freedom. Is this really a religious freedom issue, though?
GJELTEN: Well, the First Amendment to the Constitution says government can't establish a religion, but neither can it limit the exercise of religion. And that's the issue here. What does it mean to be free to exercise your religion? It's not about what you can believe. It's whether you can act on those beliefs.
INSKEEP: What's an example of that?
GJELTEN: Well, take adoption. In some states, it is illegal to turn down a same-sex couple when you're placing children for adoption. That's discrimination. But in the Catholic church, the sacrament of marriage is defined officially as the union of a man and a woman. So a Catholic adoption agency is torn between its faith doctrine and what it sees as a faith obligation to help orphans. I got this from Stanley Carlson-Thies. He's the head of the Institutional Religious Freedom Alliance.
STANLEY CARLSON-THIES: One of the major activities of the church going way back was to look at orphans. And for that to be illegal unless the religious people change their standard seems to me an unfortunate way to solve that.
GJELTEN: So that's a religious freedom issue. Where adoptions are concerned, will Catholics be free to act according to their religious belief?
INSKEEP: Although if you're a same-sex couple, it's an equality issue. Because you say there are all kinds of parents, and why shouldn't we be able to adopt like anybody else?
GJELTEN: You shouldn't face discrimination because of your sexual orientation. That should be illegal. Here we go to Karen Narasaki from the U.S. Commission on Civil Rights.
KAREN NARASAKI: I can't think of a single civil rights law that doesn't have some people who are unhappy about it, right? But once the country has said, well, we believe that people who are LGBT need to be protected from discrimination, then how do you make sure that happens?
GJELTEN: And can you do it without trampling on someone's religious freedom? I put this to Charles Haynes. He directs the Religious Freedom Education Project at the Newseum here in Washington. He argues that religious people are entitled to what he calls a claim of conscience.
CHARLES HAYNES: We may not like the claim of conscience, but, you know, we don't judge claims of conscience on whether we like the content of the claim. We are trying to protect the right of people to do what they feel they must do according to their God. That is a very high value.
GJELTEN: Now, what's interesting here, Steve, is that Haynes says this even though he's actually a supporter of LGBT rights.
HAYNES: Nondiscrimination is a great American principle. It's a core American principle, as is religious freedom. When you have two important American principles coming into tension, into conflict with one another, our goal as Americans is to sit down and try to see if we can uphold both.
GJELTEN: Both religious freedom and equality.
INSKEEP: That's what you say the divide is. But to what extent is this really a debate between religious people and secular people, if we would?
GJELTEN: Well, there actually are secular people on both sides of this issue. And there are religious people on both sides, including on the anti-discrimination side, like the head of the Episcopal Church in the United States, Bishop Michael Curry. He spoke recently on this, saying he does not see a religious freedom problem in America, not like in other parts of the world, where Christians face real persecution.
MICHAEL CURRY: I'm not worried about my religious freedom. Really? I get up and go to church on Sunday morning, ain't nobody stopping me. My freedom to worship is protected in this country, and that's not going to get taken away. I have been in places where that's been infringed. That's not what we're talking about.
INSKEEP: It's not because some religious conservatives say they want more than the freedom to worship.
GJELTEN: That's right. They want the freedom to exercise their faith every day of the week, even if it means challenging this idea of equality. I go back to Stanley Carlson-Thies from the Religious Freedom Alliance.
CARLSON-THIES: We can't use equality to just wipe out one of the rights or say you can have the right as long as you just exercise it in church, but not out in life.
INSKEEP: OK. If you can't do that, how do we resolve the issue?
GJELTEN: We may not be able to. There's going to be a lot of tough fights in the legislatures around the country and in the courts. You know, some judges say if you tell one group of people they can act in accordance with their religious beliefs, you are effectively establishing a religion. Others say that protecting a set of beliefs is not the same as protecting a particular religion.
For some guidance here, I went to John Inazu. He's a law professor at Washington University who has written a lot on this question. His view is that this tension is so profound that a resolution is unlikely, at least in the short term.
JOHN INAZU: There were efforts early on about some kind of compromise. I think those are less and less plausible as time goes on. It's hard to see in some of these cases how there would be an outcome that is amenable to everyone. And so I think we're seeing these cases with us for a long time.
GJELTEN: Not a lot of hope for compromise. When both sides see themselves as standing on moral or religious high ground, changing minds, Steve, is not easy.
INSKEEP: Tom, as always, thanks.
GJELTEN: You bet.
INSKEEP: That's NPR's Tom Gjelten.
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