THE PUBLIC EYE: The Republican “Religious Liberty” Tactic

Bob Burnett
Monday July 06, 2015 - 11:09:00 AM

Reeling from the Obergefell v Hodges Supreme Court decision making same-sex marriages legal in all 50 states, Republicans pushed back, claiming same-sex couples can be denied service whenever the provider believes this is consistent with their religious beliefs. Another form of LGBT discrimination. 

In his dissent to the Supreme Court decision, ,Justice Clarence Thomas lamented: 

The majority’s decision threatens the religious liberty our Nation has long sought to protect… In our society, marriage is not simply a governmental institution; it is a religious institution as well… It appears all but inevitable that the two will come into conflict, particularly as individuals and churches are confronted with demands to participate in and endorse civil marriages between same-sex couples.
Subsequently, Texas Attorney General Ken Paxton opined: 

County clerks and their employees retain religious freedoms that may allow accommodation of their religious objections to issuing same-sex marriage licenses. The strength of any such claim depends on the particular facts of each case… It is important to note that any clerk who wishes to defend their religious objections and who chooses not to issue licenses may well face litigation and/or a fine.
In addition to marriage-licenses obstacles, Atlantic magazine editor Emma Green speculated the Republican religious-liberty tactic will produce three categories of legal challenges: 

gay adoption; the tax-exempt status of religious organizations that wish to discriminate on the basis of sexual orientation; and the obligation of private churches and individuals to recognize and perform same-sex marriages.
Despite the Obergefell v Hodges decision, it will take a while before same-sex couples receive fair and cordial treatment in all fifty states. 

The struggle for African-American civil rights was similar. In both struggles, opponents initially argued that discrimination was the natural order. In 1946 Mississippi Senator Theodore Bilbo wrote: “Purity of race is a gift of God . . . . And God, in his infinite wisdom, has so ordained it that when man destroys his racial purity, it can never be redeemed.” Similarly, there’s a sad history of US politicians claiming that homosexuality is a learned behavior. Last June, former Texas Governor Rick Perry said, "I may have the genetic coding that I’m inclined to be an alcoholic, but I have the desire not to do that - and I look at the homosexual issue the same way." 

In both struggles, opponents asserted that individual states should decide whether or not to discriminate. “States Rights” was one of the issues that precipitated the US Civil War. In the Obergell v Hodges case, thirteen states (and many Republican politicians) argued states should decide whether or not marriage was restricted to a man and a woman. 

Finally, in both the struggle for African-American rights and for LGBT rights, opponents have argued the majority decision infringed on their religious liberty. According to lawyer Ian Millhiser, “After the Supreme Court ordered public schools integrated in Brown v. Board of Education, many segregationists cited their own faith as justification for official racism.” In 1975 formerly segregated Bob Jones University (Greenville, South Carolina) admitted African American students but prohibited interracial dating or marriage. The IRS removed Bob Jones’ tax exemption. Bob Jones sued the IRS and, in 1983, the case reached the Supreme Court. Bob Jones argued, the IRS tax-exemption regulations “cannot constitutionally be applied to schools that engage in racial discrimination on the basis of sincerely held religious beliefs.” SCOTUS voted 8-1 against Bob Jones, “This Court has found certain governmental interests so compelling as to allow even regulations prohibiting religiously based conduct.” 

Unfortunately, many of the legal protections afforded to African Americans have yet to be extended to LGBT Americans. The 1964 Civil Rights Act (Title II) prohibits discrimination in private businesses “which are places of public accommodation” but only discrimination based upon race, color, religion, or national origin. It conspicuously does not mention sexual orientation. 

Thus, same-sex couples may marry only to find that they cannot rent the space for a wedding celebration or purchase a wedding cake – unless LGBT discrimination is prohibited in their state. (And federal law does not protect LGBT citizens from employment discrimination.) 

Indeed, the Obergfell v Hodges decision may precipitate state legislation to grant businesses the right to refuse services based upon “religious objections.” This was the intent of Arizona SB 1062 which, last February was vetoed by vetoed by Arizona Governor Jan Brewer

Ideally, the Supreme Court decision in Obergfell v Hodges would immediately usher in full recognition of LGBT rights. Unfortunately, given current Republican rhetoric, that seems unlikely. 

More than fifty years ago, Martin Luther King, Jr. observed, “The arc of the moral universe is long but it bends toward justice.” The Obergfell v Hodges decision is an important step toward justice, but the struggle for LGBT rights is not over. 

Bob Burnett is a Berkeley writer. He can be reached at