Liberty or License? the Double-Edged Sword of Church-State Separation

Article excerpt


There is gathering national support acknowledging that lesbian, gay, bisexual and transgender (LGBT) citizens are simply that--citizens--with the same rights, privileges and obligations as other citizens.

In response, some states, along with various fundamentalist religious and conservative organizations, are fighting for a legally protected right to discriminate. This right to discriminate is grounded in the First Amendment's "Free Exercise" clause. As the theory goes, being able to discriminate against LGBT citizens is necessary to preserve the First Amendment right to the free exercise of religion for these states' fundamentalist religious heterosexuals and conservative organizations.


This stratagem is not only patently specious, it is legally insupportable.

Contrary to the homophobic fear-mongering by religious fundamentalists and conservatives, there is no legal support for the notion that a state that has recognized the equal rights of LGBT citizens can force a religious organization to adopt those same views. If Religion X condemns homosexuality, the state cannot require Religion X to perform a gay or lesbian marriage or change its doctrinal beliefs against homosexuality under threat of governmental penalty. Indeed, if the state attempted to do that, it would violate the Free Exercise Clause of the First Amendment. And, of course, for that reason, no state has made any such demands on any sectarian organization.

Yet, in Arizona, Idaho, Kansas, Nevada, Oregon, South Dakota, Tennessee, Oklahoma, Mississippi, Ohio, Georgia and Utah religious and conservative organizations and, in some cases, their supporters in the state legislatures, have actively promoted the adoption of laws that would permit any individual or group to discriminate in a variety of contexts based on religious beliefs.

Such laws would allow business owners, for example, to discriminate against LGBT customers in much the same fashion that businesses run by racists once discriminated with impunity against people of color. A government official could deny same-sex couples basic services and benefits based solely on that official's religious beliefs.

Indeed, Arizona's law was so broad that some believed it would have allowed the denial of equal pay to women and the abrogation of contractual rights in the name of religion. In other words, one's personal religious beliefs trump legal obligations imposed generally upon and for the benefit of all.

Aside from the obvious anarchical effect of such laws, this campaign stands the hallowed principle of the separation of church and state on its head. This important principle, incorporated in the First Amendment religion clauses, is really just a simple quid pro quo: The state cannot legislate with respect to the beliefs, doctrines and practices of sectarian organizations; but, on the flip side, the state cannot establish or adopt via legislation any religious belief, doctrine or practice. …