Religious freedom vs. anti discrimination is a tug of war that has engulfed our lives through social movements and the media since the 1960s beginning with feminism, racism and gay rights. Since then, there have been countless moves forward in an attempt to understand where the line lies between giving people their religious freedom and protecting different classes of people from the discrimination sometimes perpetuated by the religions which we so value the freedom to practice.
Religious Freedom Restoration Acts
The federal Religious Freedom Restoration Act of 1993: “Prohibits any agency, department, or official of the United States or any State (the government) from substantially burdening a person’s exercise of religion even if the burden results from a rule of general applicability, except that the government may burden a person’s exercise of religion only if it demonstrates that application of the burden to the person: (1) furthers a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.”
Here is a post outlining the Religious Freedom Restoration Act with a focus on Indiana’s RFRA that took the nation by storm a little over a year ago. The federal Religious Freedom Restoration Act was passed in 1993, intended to prevent other federal laws from burdening a person’s First Amendment right to the free exercise of religion. Many states have introduced their own RFRAs over the years. Indiana introduced SB 0101 in January 2015 that basically allowed businesses to elect to not do business with certain classes of people if doing so in some way impeded their right of “the free exercise of religion”. In 2016, twenty-one states have enacted their own RFRAs since 1993 and there are currently ten states considering legislation on the topic.
RFEAPerlis.com made this map of the current states with RFRAs:
And here are the current ten bills pertaining to RFRAs
Virginia is the only state that has passed legislation so far this year with HB 791 – “and act that reaffirms that the religious rights asserted in a specified section of the code are the natural and unalienable rights of mankind”. Unfortunately, many bills which support these acts, do enable discrimination of some shape or form to different classes of people. This is where my subject of discussion comes in – religious freedom vs. anti-discrimination.
Religious Freedom vs. Anti-Discrimination.
Religious Freedom – “Everyone shall have the right to freedom of thought, conscience, and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice, and teaching” –Article 18(1) of the International Covenant on Civil and Political Rights
Anti-Discrimination – Law opposed to or intended to prevent discrimination (= unfair treatment of someone because of their sex, race, age, etc.)
Discrimination – the act, practice, or an instance of discriminating categorically rather than individually : prejudiced or prejudicial outlook, action, or treatment
According to the US Equal Employment Opportunity Commission, here are the different “types” of discrimination: age, disability, equal pay/compensation, genetic information, harassment, national origin, pregnancy, race/color, religion, retaliation, sex and sexual harassment. These cover not firing people after they turn 40 to not testing someone’s genetics to see if they are at a higher risk of disease to retaliating against someone for filing a discrimination charge. Sex-based discrimination has been expanded to include “discrimination against an individual because of gender identity, including transgender status, or because of sexual orientation is discrimination because of sex in violation of Title VII.”
There are many different ways anti-discrimination laws pertaining to religion are playing a major role in our society today. These new laws cover areas like genuinely including the right of freedom of religion to more than just branches of Christianity, like Muslims to not discriminating against women who get pregnant outside of wedlock to protecting children from dying in homes where religious beliefs impede life saving medical treatments. Currently one big focus of freedom of the religion vs. anti-discrimination debate is how the laws that protect people’s freedom religion affect members of the LGBTQ community across the United States.
Recently, there have been polarizing moves within the area of freedom of religion vs anti-discrimination. Although both movements have been active for quite awhile, they again captured the public’s attention when a series of bills in North Carolina, Georgia and Mississippi aimed at protecting citizens’ freedom of religion were recognized by a large portion of the United States as laws that enable discrimination, ostracization and hate rather than protecting citizen’s religious freedom.
North Carolina’s HB 2 is by far the most widely publicized recent bill on this topic. Known as the “Bathroom Bill”, HB 2 stipulated that transgender people would be allowed to use the bathrooms corresponding to their gender identity (see this post that covers this topic more in-depth) along with taking away local governments’ abilities to extend more protections to protected classes and prohibiting local governments from raising minimum wage levels above the state level. The Senate Democrats were so upset with the passing of this bill that they walked out of the session in protest. South Dakota has a similar bill, HB 1008, which singles out transgender students by prohibiting them from using the restroom that matches the gender they live as everyday.
This is a photo of some of the protestors to HB 2 from thefederalist.com:
The next bill that gained national attention was Georgia’s HB 757. The “Pastor Protection Act” stated that no pastor can be forced to perform a same-sex wedding. In addition to performing weddings, a faith-based group could not be forced to hire or retain an employee whose beliefs contradict those of the organization, and religious schools would be able to reject holding events for people or groups to whom they object. Potential consequences from this bill include single mothers and their children being denied safety at the domestic violence shelter, hospitals denying same-sex couples the opportunity to say goodbye to their partner, and restaurants refusing a child’s birthday party because his parents are divorced. Governor Nathan Deal vetoed the bill stating “Our people work side by side without regard to the color of our skin, or the religion we adhere to. We are working to make life better for our families and our communities. That is the character of Georgia. I intend to do my part to keep it that way. For that reason, I will veto HB 757.”
Finally, Mississippi introduced HB 1523, the “Protecting Freedom of Conscience from Government Discrimination Act”. This bill would have allowed individuals, businesses, government employees, nonprofits and other entities to discriminate against not only LGBTQ people, but also anyone who’s had extramarital sex, based on their “sincerely held religious beliefs”. Like the two previous bills, just before it would have taken effect, the Governor, Tate Reeves, eviscerated the bill. Reeves stated, “The State has put its thumb on the scale to favor some religious beliefs over others. Showing such favor tells ‘non adherents’ that they are outsiders, not full members of the political community, and . . . adherents that they are insiders, favored members of the political community. And the Equal Protection Clause is violated by HB 1523’s authorization of arbitrary discrimination against lesbian, gay, transgender, and unmarried persons.”
Virginia Governor, Terry McAuliffe, also vetoed a bill, SB 41, this year. It would have allowed businesses and individuals to cite their religious beliefs as a reason for refusing services to lesbian, gay, bisexual and transgender people. He stated, “We should be pursuing policies to make Virginia a more vibrant and welcoming place to live, work, and raise a family. Senate Bill 41 would accomplish the opposite by making Virginia unwelcome to same-sex couples, while artificially engendering a sense of fear and persecution among our religious communities. Accordingly, I veto this bill.”
Tennessee introduced HB 1840 that would allow mental health professionals to refuse service to anyone based on the “sincerely held religious belief of the counselor or therapist.” It is a very broad bill, even including unlicensed counselors. California introduced SB 1146 which “significantly reduces religious freedom” and “would effectively eliminate faith-based institutions as a choice for California’s most disadvantaged students.”
Conversely, many states have been introducing anti-discrimination bills throughout the United States. Massachusetts made massive strides forward in anti-discrimination for the LGBT community at the beginning of July in 2016 by passing S 2407 “An Act Relative to Transgender Anti-Discrimination”. This bill guarantees that transgender people can use restrooms and locker rooms that correspond with their gender identities. Pennsylvania introduced S 1157 which bans anti-trans discrimination in health care and insurance coverage.
The “Do No Harm Act” or HR 5272, was introduced in May of 2016. This bill makes the Religious Freedom Restoration Act of 1993 inapplicable to federal laws (or implementations of laws) that protect against discrimination or the promotion of equal opportunity put in place by acts like the Civil Rights Act of 1964, the Americans with Disabilities Act, the Family Medical Leave Act and the Violence Against Women Act.
Pennsylvania introduced SB 1307 which would prohibit discrimination in housing or employment based on sexual orientation and gender identity or expression citing the “right of freedom from discrimination”. Pennsylvania Governor also signed two anti-discrimination executive orders to expand protections against discrimination based on sexual orientation, gender expression or identity for commonwealth employees and employees of businesses who are contracted by the commonwealth. New Hampshire Governor, Maggie Hassan, also signed an executive order banning the state from discriminating against its employees on the basis of gender identity and gender expression stating, “By making clear that gender identity and gender expression are protected in the State’s anti-discrimination policies, this Executive Order helps ensure that New Hampshire state government welcomes and incorporates the talents and contributions of all of our citizens. As we celebrate Pride Month, this Executive Order reinforces that New Hampshire is a welcoming state where everyone has the opportunity to share in our high quality of life and economic success.”
Virginia passed two different anti-discrimination bills; SB 12 which bans discrimination against state employees based on their sexual orientation and gender identity and SB 67 which adds sexual orientation and gender identity to the Virginia Housing Law aka not allowing discrimination based on those factors.
Indiana and Florida introduced similar bills to those of Pennsylvania and Virginia, Indiana SB 344 and Florida SB 120,would have banned discrimination based on sexual orientation, but not gender identity for housing, employment and public accommodations. The bills have a relatively broad exemptions that allow businesses and individuals to discriminate by citing religious objections – so not quite an “anti-discrimination” bill.
Perhaps the most concerning, in my opinion, is the First Amendment Defense Act or HR 2802. Not only is the majority of the language in the bill concerning to me in its ability to allow discrimination, but it is set to be heard on the the one-month anniversary of the Orlando Massacre where 49 people lost their lives and 53 were injured in an act of terror and hate crime.
This is a photo from a candlelight vigil held to honor the victims in Denver, CO from kwgn.com:
This Act is seen by many people as congress’s response to the shooting. The Act would grant special rights to individuals with a “religious belief or moral conviction that marriage is or should be recognized as the union of one man and one woman, or that sexual relations are properly reserved to such a marriage” along with stating that the “the Federal Government shall not take any discriminatory action against a person, wholly or partially on the basis that such person believes or acts in accordance with” a religious objection to marriage equality or a faith-based belief that sexual relations must be reserved to a marriage between people of the opposite sex.
There have also been movements throughout the world pertaining to acceptance and freedom of religion. Last year, President Obama told Kenya, an African state, to abandon anti-gay discrimination. He stated for “a law-abiding citizen who is going about their business, and working at a job and obeying the traffic signs and not harming anybody, the idea they will be treated differently or abused because of who they love is wrong, full stop.” Africa is one of the hardest places for LGBTQ people to live with same-sex relations being illegal in 36 of 54 states and, in some, it is even punishable by death.
Canada introduced C-16 that would change the Canadian Human Rights Act and the Criminal Code of Canada to ban discrimination based on a person’s gender identity or expression and protect transgender people from hate propaganda. Prime Minster, Justin Trudeau, stated “As a society, we have taken many important steps toward recognizing and protecting the legal rights for the lesbian, gay, bisexual, transgender, queer/questioning or two-spirited community. There remains much to be done, though.
In the beginning of July, Russian President Vladimir Putin signed into law an “anti-terror” package which included measures detrimental to religious freedom. Under the new law, in order to preach and teach the gospel you must have a permit and it restricts evangelism to registered church building sites. A Kremlin spokesman, Dmitry Peskov, told journalists, “If the law produces any undesired outcomes, the government will introduce measures accordingly by presidential decree.”
Public Voice with Anti-Discrimination
Throughout the last six months, three states specifically have received criticisms from the public and had many public figures take a stance against legislation proposed in the state. A Walt Disney Co and Marvel Studios spokesmen stated, “Disney and Marvel are inclusive companies, and although we have had great experiences filming in Georgia, we will plan to take our business elsewhere should any legislation allowing discriminatory practices be signed into state law.”
Bryan Adams, Sharon Stone and Ellen DeGeneres have all publicly spoke out against Mississippi’s bill. Ellen stated, “I’m not a political person, I’m really not, but this is not politics. This is human rights. When I see something wrong, I have to talk about it.”
Finally, when North Carolina passed HB 2, it was almost a national movement to voice disagreement with the ruling, cities prohibited state sponsored travel, musicians canceled concerts and companies banned together to ask for the bill to be repealed and threatened to leave the state.
I believe that freedom of religion, like most of our amendments, needs to be updated to the world we are living in here in the 21st century. I believe that everyone has the right to be who they are and believe what they choose, but not at the cost of others. The great thing about the Unite States of America is we were founded on being free to believe what you want and be who you are, and I am totally 100% behind, except for when your beliefs inhibit other people from receiving their basic human and constitutional rights.
I am agnostic and do not personally believe in religion. Just because I don’t believe in it, and the freedom to practice religion does not directly affect me, that by no means give me the right or position to take that right away from other people to practice their own religion without risk of persecution. I also happen to be a heterosexual white female, just because I am not gay, transgender, a person of color or whichever other discriminated group, doesn’t give me the right to take away their opportunity to live their lives full of the rights that come along with being an American, solely because it does not pertain to me. The beauty behind the idea of America to me is that it is a melting pot, full of different, interesting and amazing people who all bring their own spice of life the the table. We are supposed to value freedom above all else. Shouldn’t every single person be free to be themselves?
My understanding of religion from those in my life who are very in touch with their faith is religion is about love, acceptance and being a better person through helping the world. So I leave you with this bible verse:
1 John 4:18-21: “There is no fear in love but perfect love cast out fear, for fear has to do with punishment, and whoever fears has not reached perfection in love. We love because he first loved us. Those who say, I love God and hate the brothers or sisters are liars for those who do not love a brother or sister whom they have seen cannot love God whom they have not seen. The commandments we have from him is this: those who love God must love their brothers and sisters also.”
It is our job in life to love, care for and respect one another no matter your race, sexual orientation, gender, nationality, education level, economic level or religion.