Presidential Candidates Fail to Consider Harms Against Religious Institutions
At the CNN LGBTQ Town Hall on October 10, among the claims discussed was the supposed incompatibility of religious liberty and LGBTQ equality. As is often the case with this issue, the moderators and candidates focused their attention and indignation on the autonomy of religious institutions. Recent high-profile cases in this area involve religious schools, adoption and foster care agencies, and businesses as they encounter local and state laws that prohibit discrimination based on sexual orientation and gender identity (SOGI).
Presidential candidates, by necessity, must present arguments in abbreviated form, so they can be forgiven for failing to address every moral, legal, and policy nuance at play here. What was striking, however, was the extent to which the candidates saw no need for nuance at all.
Consider this sample of responses.
When asked about the juxtaposition of religious freedom and LGBTQ rights, Senator Cory Booker said, “I cannot allow, as a leader, that people are going to use religion as a justification of discrimination.”
When asked whether “religious institutions like colleges, churches, and charities” should lose their tax-exempt status if they oppose same-sex marriage, Beto O’Rourke responded, “Yes.” He continued, “There can be no reward, no benefit, no tax break for any institution or organization in America that denies the full human rights and full civil rights of every single one of us.”
While O’Rourke’s response has rightly received widespread attention, Mayor Pete Buttigieg’s comments are just as important. He addressed a similar question by saying, “Religious liberty is an important principle in this country and we honor that. But it’s also the case that any freedom we honor in this country has limits when it comes to harming other people.” The relationship between discrimination and harm requires further examination.
All people and institutions discriminate on a regular basis—i.e., they make distinctions based on certain criteria. The moral question is whether those criteria are appropriate in a given case. The legal question is whether one of the criteria implicates a protected class. As one of us wrote in 2012, and then argued at a conference at Harvard Law School in 2014, “It is not ‘discrimination’ that is wrong… it is wrongful discrimination that is wrong.” Mission-driven organizations of all kinds discriminate regularly. Planned Parenthood would not hire a pro-life Muslim as its director. The Sierra Club would not invite a climate-change-denier to serve on its board of directors. No one objects to these acts of discrimination. Similarly, for religious institutions, some acts of discrimination can be properly understood as exercises of careful and constitutionally protected discernment based on their deeply held religious convictions.
For many Muslim, Jewish, and Christian institutions, for example, beliefs about human sexuality and marriage are rooted in Scripture and have been established for millennia. Challenges arise in the context of SOGI nondiscrimination laws when the expressions and conduct associated with the underlying identities are contrary to those religious beliefs and yet are themselves placed within the scope of these laws’ protections. No presidential candidate on stage at the LGBTQ Town Hall made any attempt to address this issue.
The harms to which Mayor Buttigieg alluded are often not imposed by, but instead are imposed on, the religious actor. Consider, for example, a recent case involving Catholic Social Services (CSS) and the City of Philadelphia: the city suspended the placement of foster children through CSS because it would not place children with same-sex couples. While there are other means available to accommodate same-sex couples in Philadelphia, there is no accommodation available for CSS. Compelling CSS either to forsake its religious commitments or terminate its foster care services exacts a form of harm on CSS, and the many needy children the organization serves, for which there is no remedy. If CSS receives no legal relief, it has two alternatives: abandon its religious calling to serve children in need or abandon its religious convictions about the nature of marriage and the best interests of children. Either one imposes an extraordinarily high cost on CSS and the children it serves. Same-sex couples may be offended or hurt by CSS’s policy, but they may seek another provider that enables them to achieve their goal of fostering children.
The legal outcome of this and other cases in this area will depend on applicable law in the relevant jurisdiction and, of course, the fact-pattern of each case. But we must also ask the prior cultural question of why people are filing these cases in the first place. What are the perceptions of harms that lead many to believe that a legal resolution is needed? Recognizing the actual nature and distribution of harms in these cases would be a good start. Religious institutions must not be forced to choose between abandoning their religious calling or abandoning their religious convictions; to compel such a choice constitutes a profound harm.
It would certainly help if the 2020 presidential candidates who recently took the stage would at least take a moment to acknowledge – along with Justice Anthony Kennedy writing for the majority in Obergefell – that many who uphold a traditional understanding of marriage do so on “decent and honorable religious or philosophical premises.”
Richard W. Garnett is the Paul J. Schierl/Fort Howard Corporation Professor of Law, Concurrent Professor of Political Science, and founding director of Notre Dame Law School’s Program on Church, State, and Society. Garnett teaches and writes about the freedoms of speech, association, and religion and constitutional law more generally.
Nathan A. Berkeley is the Communications Director and Research Coordinator with the Religious Freedom Institute, a non-profit based in Washington, D.C. that is committed to achieving broad acceptance of religious liberty as a fundamental human right, the cornerstone of a successful society, and a source of national and international security.