The Religious Right is officially in a full blown hissy fit. They’re distraught, traumatized by the fact that — despite their best efforts to codify their bigoted beliefs into law — same sex couples will now enjoy all the same legal rights and obligations associated with state recognized marriage.
The world hasn’t ended in the way they predicted, of course. But now their concern has become far more personal. What will this changing social landscape mean for them? Their answer has been indignant, with two camps responding. The first argues that the social targeting they anticipate is actually an infringement on their right to free speech.
The second argues that the likely protections that will follow Obergefell will violate religious liberty. Both are specific to the First Amendment, so let’s take a moment to remember exactly what that says:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
For those concerned about interpersonal conflict, the language here could not be clearer. Your right to expression is protected. Nowhere does it say that you are protected from the social ramifications of that expression. Just as the KKK has the right to march while spouting hate, social conservatives will have the right to continue their use of slurs and misappropriation of biblical text to their hearts desire. But like the KKK, they will not be protected from the exercise of free speech by outside parties critical of such positions.
In other words, your right to freedom of speech is protected, but you are not protected from the consequences of exercising that right. Feeling like people are being mean to you is not the basis of Constitutional violation.
Further, the First Amendment is specific to the creation of laws by Congress. Congress is not passing any laws that say people who think you’re a bigot must treat you as such. That’s a function of society self-policing. So even in a world where the First Amendment did protect you from the consequences of your speech, it would not be applicable here.
But what happens if non-cis and non-hetero individuals are granted protected class status? Could that not be seen as an abridgment of freedom of speech or the practice of faith? How does that interact with the protected class of religion?
The first thing to remember is that being a member of a protected class does not grant you the right to discriminate against another protected class, regardless of religious belief. This was best demonstrated in the wake of desegregation and the elimination of anti-miscegenation laws. Both private and public institutions were forced to comply with anti-discrimination laws or pay the piper. A diner could not refuse service on the basis of skin color. A clerk could not deny a marriage license to interracial couples. It didn’t matter if the actors attempted to justify their behavior with the Bible. The government had an overriding interest in preventing discrimination. The same line of reasoning may be applied here.
For those objecting to such an extension on the basis that it would abridge freedom of speech or religion, it’s important to remember that the courts have, throughout history, held that some limitations may be necessary, just in the interest of the public good. So while it may be viewed as an infringement in some lights, assigning protected class status to non-cis and non-hetero individuals despite religious objections — as was done in the context of race — is not an inherently unconstitutional move.
To be fair, that protected class status has not yet been conferred to non-cis and non-hetero individuals universally; it’s been a state-by-state process. But it’s certainly trending this way, and the Obergefell ruling may be the precedent cited to make it so through the courts should state legislatures fall down on the job. So, for now, with the exception of the clerks charged with upholding the law of the land on marriage equality, this is a blurry arena that time will most likely clarify.
But what about private institutions? Are the religious vulnerable there? There are two ways to look at this: the rights of non-profit religious organizations, and the rights of faithful individuals within a for-profit secular institution.
On the non-profit side, organizations with religious affiliations, like private schools, are probably safe for now, as long as they don’t live in a state with anti-discrimination protections. If protected class status is conferred by law or by ruling, though, they may find their tax-exempt status threatened in a replay of Nixon and the IRS v. Bob Jones University, justified by the government’s interest in preventing discrimination. Again, this isn’t clear-cut just yet. The law has some catching up to do.
But if we’re talking about someone who is employed by a for-profit organization, things becomes more black and white. Protections are in place to prevent employers from firing you outright for holding a certain set of beliefs. For an employer to fire you for holding a religiously-backed opinion that is at odds with marriage equality would be in violation of those laws. However, while the laws protect your right to believe and practice your faith, there are limits here. If the practice of those beliefs (say: proselytizing) creates a hostile work environment, reflects poorly on the company’s brand, or creates undue economic hardship (think potential boycotts), you could be legally fired. In other words, it’s okay to be a bigot; it’s not okay to act like one. Your employment may be impacted accordingly.
The TL;DR version of all this is that until anti-discrimination laws become universal, many non-cis and non-hetero individuals may be vulnerable to exclusion in terms of employment and access to services. When that changes, religious rights will not trump the protected class status of these individuals. That’s not discrimination or persecution; that’s historically affirmed progress. In the meantime, getting hurt feelings because someone doesn’t like what you say during your exercise of freedom of speech is not an attack on your First Amendment rights. Everyone needs to calm down.
Of course, reason has never been of great import to the Religious Right, so we can probably expect the temper tantrums to continue.
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