Tuesday, March 29, 2016
If it had not been clear enough since last spring’s brief controversy Indiana’s Religious Freedom Restoration Act, the struggle for sexual orientation anti-discrimination was not about to cease with just a pro-gay Supreme Court marriage decision over the summer. In fact, the recent news of anti-gay legislation passing through Georgia’s state legislature (it’s now on Governor Deal’s desk awaiting signature) gives pause for the thought that marriage equality just wasn’t enough for full equality.
But what some might think is a step backward from Obergefell is actually part of the political incrementalism that keeps the importance of gay equality alive. Obergefell was not—and should not be considered—the full-stop to progress in gay rights. With the recent rise of conservative state legislatures passing bathroom bills against transgender school children and passing legislation, such as the one in Georgia, that would consequently allow faith-based groups to deny serves against same-sex couples and LGBT individuals, the movement presses on.
The state of the gay rights struggle has been contextually one in which religion has been the both sword and shield. First, religion was used to cast the behavior of sexual minorities as immoral and thus also deny them of protections within their civil liberties. But once morality was no longer the effective underlying logic, the rise of religious liberty rhetoric began to take more presence in the debate over gay rights. In the aftermath of Obergefell, where same-sex couples were given the right to partake in an institution that has both civil and religious significance, the defense of religious liberty was emblematically evoked by the likes of Kim Davis, the Kentucky county clerk who refused to issue marriage licenses to same-sex couples. Davis defended her actions by claiming that her religious beliefs conflicted with homosexuality and her freedom of religious exercise shielded her from having to issue marriage licenses to gay couples.
More clearly than ever, the debate now should move forth to investigate where one right begins and another ends. Religious freedom is an imperative liberty in this country and it should continue to be in a society that embraces many different religious practices and ideologies. But rights and freedoms are not absolute. This notion includes the freedom to exercise of religious beliefs. What needs to happen every time religion is being used to combat the recognition of gay rights is not only the acknowledgment that religious liberties already deserve protection under the Constitution. We know that already; and frankly that’s the distraction in the political and legal rhetoric that leads to bills such as the one in Georgia or to the Kim Davis incident last fall—all pronouncements from an anxious body politic that craves that validation. Instead, it is about time that the debate has shifted toward analyzing whether one’s exercise of religion has overreached in the context of gay rights and thus created a cognizable harm in the civil liberties of another—whether that’s a dignitary harm or some other legally-recognized injury.
Recently, this topic has received some recent scholarly attention. In a short passage in Dean Erwin Chemerinsky and Professor Goodwin’s forthcoming Georgetown article, Religion Is Not A Basis For Harming Others, Chemerinsky and Goodwin alluded to the idea in the gay rights context an argument for restricting religious freedom might be based on an infliction of dignitary harm. Marvin Lim and Louise Melling also recently co-wrote a piece on this topic in the Journal of Law and Policy more directly to that effect. Other scholars such as Professors Douglas NeJaime and Reva Siegel are sharing their forthcoming ideas similarly. But more legal and scholarly spotlight must shine upon this piece of the debate—that religious liberties are not absolute and must be constitutionally regulated in order to balance the panoply of civil liberties that is protected by the Constitution and that individuals in our society enjoy.