Magazine article Moment

Can We Find Common Ground: Abba Cohen, Douglas Laycock, Jay Michaelson, Jonathan Rauch, Marc D. Stern, Robin Fretwell Wilson

Magazine article Moment

Can We Find Common Ground: Abba Cohen, Douglas Laycock, Jay Michaelson, Jonathan Rauch, Marc D. Stern, Robin Fretwell Wilson

Article excerpt

When President Barack Obama announced in June that he would issue an executive order barring federal contractors from discriminating against employees based on sexual orientation or gender identity, LGBT rights proponents were ready to rejoice. Yet before they did, they had one request: Don't undermine the order's power by allowing exemptions for religious liberties.

As laws protecting LGBT rights gain momentum, religious groups have rushed to secure protections that would excuse them from antidiscrimination legislation on religious grounds. This has raised difficult questions about how to balance some of our nation's most fundamental rights. For instance, can a baker be forced to sell a gay couple their wedding cake if doing so conflicts with his or her religious beliefs (an actual case in Colorado)?

"A great deal is at stake," says Charles Haynes, director of the Religious Freedom Center of the Newseum Institute in Washington, DC. "Two of the most important principles in our democracy--equality and religious liberty--are colliding in our society."

When it comes to navigating the political minefield, history provides some guidance. The religious liberty exemption question dates back to 1993, when Bill Clinton signed into law the federal Religious Freedom Restoration Act (RFRA). The Act, which was meant to protect minority religious groups like Native American tribes who took part in peyote rituals, stated that, "Government shall not substantially burden a person's exercise of religion ... without compelling justification."

In 1997, RFRA was deemed unconstitutional by the Supreme Court. But today the federal law is seeing an unlikely reincarnation, as states from Arizona to Mississippi propose their own versions of RFRA in response to the spread of same-sex legislation.

Moment asks six preeminent scholars: Can we find common ground between gay rights and religious freedom?--Rachel E. Gross

DOUGLAS LAYCOCK

We teach our children that America is the land of "liberty and justice for all." "For all" means liberty for both sides in the culture wars--liberty to live their own lives by their own values. It means marriage equality and strong gay rights legislation, and it means strong religious exemptions for religious organizations and religious individuals.

"Live and let live" is the characteristically American solution to deep moral or religious disagreements. Religious exemptions from laws that would require violation of conscience have been part of the American experience of religious liberty since the 17th century. Colonial Americans exempted Quakers from serving in the military and swearing oaths; they exempted religious minorities of all sorts from paying the church tax in colonies (and later states) that assessed a church tax.

Religious exemptions are still the right solution today, and many are entirely uncontroversial. We exempt Seder wine (and Communion wine) from laws about alcohol and children. Sabbath observers are entitled to reasonable accommodation in their workplace, and if no accommodation can be worked out and they quit their job, they are entitled to unemployment compensation. Some exemptions arouse more controversy but work to protect both sides. We provide abortions for women who need them, at least in blue states, but we exempt individual doctors and nurses from participating in them, even in blue states. A study 20 years ago counted more than 2,000 religious exemptions in state and federal statutes.

Sexual morality has been a central part of religious teaching for millennia; the teachings at issue in the controversy over same-sex marriage are not something made up in response to the gay rights movement. Certainly religious organizations should be allowed to practice their religious teachings in their own operations. Individuals asked to violate their conscience in the workplace are already protected by the civil rights laws, although judicial enforcement has been anemic. …

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