Religious Freedom vs. LGBT Rights

John D. Inazu, associate professor of law at Washington University School of Law, an expert on the First Amendment freedoms of speech, assembly, and religion, wrote an insightful and, I believe, accurate assessment of religious freedom: “Religious Freedom vs. LGBT Rights? It's More Complicated.”

Inazu raises the question of whether Christian colleges can remain Christian. Can they continue to uphold what they believe to be the biblical view of marriage and require certain ethical/moral behavior of their students that align with biblical teaching?

Gordon College is in the midst of a firestorm at present because of a letter signed last month by President Michael Lindsay. In this letter signed by many other Evangelicals they request that President Obama include a religious exemption in an upcoming executive order which bars federal contractors from discrimination on the basis of sexual orientation and gender identity. In essence Lindsay, and the other signers, are desiring to retain the ability to require employees to embrace and live by a Christian sexual/moral ethic. The backlash to Lindsay and Gordon College have been strongly negative. This reflects the changing cultural mores in belief and response.

In this article Inazu helpfully explains how we got here and the “legal, social, and political dimensions of the current landscape.” Most importantly, he notes that “we must recognize that arguments that seem intuitive from within Christian communities will increasingly not make sense to the growing number of Americans who are outside the Christian tradition.”

Based on the present legal and cultural landscape, Inazu provides three predictions of what is ahead. I include them in full.

Prediction #1: Only religious groups (by no means all of them) will impose restrictions based on sexual conduct. That is in stark contrast to the many groups that make gender-based distinctions: fraternities and sororities, women's colleges, single-sex private high schools, sports teams, fitness clubs, and strip clubs, to name a few. It is perhaps unsurprising in light of these observations that views on gender and sexual conduct have flip-flopped. Thirty years ago, many people were concerned about gender equality, but few had LGBTQ equality on their radar. Today, if you ask your average 20-year-old whether it is worse for a fraternity to exclude women or for a Christian group to ask gay and lesbian members to refrain from sexual conduct, the responses would be overwhelmingly in one direction. That trend will likely continue.

Prediction #2: Only religious groups will accept a distinction between "sexual conduct" and "sexual orientation," and those groups will almost certainly lose the legal effort to maintain that distinction. Most Christian membership limitations today are based on conduct rather than orientation: they allow a gay or lesbian person to join a group, but prohibit that person from engaging in conduct that falls outside the church's teachings on sexuality. These policies—like the one at Gordon College currently under fire—are not limited to gays or lesbians; all unmarried men and women are to refrain from sexual conduct. The distinction between status and conduct from which they derive is rooted in Christian tradition, and it is not limited to sexuality: one can be a sinner and abstain from a particular sin.

But many people reject the distinction between status and conduct. And in a 2010 decision,Christian Legal Society v. Martinez, the Supreme Court also rejected it, viewing distinctions based on homosexual conduct as equivalent to discrimination against gays and lesbians. I have argued in a recent book (Liberty's Refuge: The Forgotten Freedom of Assembly) that the Court's reasoning is troubling in the context of a private group's membership requirements. But it is the current state of the law.

Prediction #3: Fewer and fewer people will value religious freedom. Although some Christians will respond to looming challenges with appeals to religious liberty, their appeals will likely face indifference or even hostility from those who don't value it. The growing indifference is perhaps unsurprising because many past challenges to religious liberty are no longer active threats. We don't enforce blasphemy laws. We don't force people to make compelled statements of belief. We don't impose taxes to finance training ministers. These changes mean that in practice, many Americans no longer depend upon the free exercise right for their religious liberty. They are free to practice their religion without government constraints.

Additionally, a growing number of atheists and "nonreligious" Americans have little use for free exercise protections. Even though most Americans will continue to value religious liberty in a general sense, fewer will recognize the immediate and practical need for it to be protected by law.

This final prediction is deeply unsettling, because strong protections for religious liberty are core to our country's law and history. But those protections have been vulnerable since the Court's decision in the peyote case. And they will remain vulnerable unless the Court revisits its free exercise doctrine.

Inazu believes that “religious exceptionalism will see diminishing returns.” Rather, he suggests that we consider the notion of pluralism which “rests on three interrelated aspirations: tolerance, humility, and patience.” These are, he believes, “fully consistent with a faithful Christian witness. And in this age, they are also far likelier to resonate than arguments for religious exceptionalism. The claim of religious exceptionalism is that only believers should benefit from special protections, and often at the cost of those who don’t share their faith commitments. The claim of pluralism is that all members of society should benefit from its protections.”

With what do you agree? With what do you disagree? In light of the legal and cultural landscape, what would you suggest as a way forward? How do we remain in the world but not become of the world? How are we salt and light (remember that Jesus says we are!)?

Christian faithfulness and the spread of Christianity were and are not dependent on laws or culture. The recurring refrain that Luke records of the early church, which is vital for us to remember today, is the following:  "And the word of God continued to increase, and the number of the disciples multiplied greatly" (Acts 6:7; cf. 9:31; 12:24; 16:5; 19:20; 28:31). Our humble prayer: Lord, by your grace and for your glory, do it again.


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