As mentioned before, there is common agreement between us about protecting clergy and religious institutions from having to participate in the celebration and/or blessing of a same-gender marriage, or forcing any church/synagogue/mosque to host such an event against the teaching of that religious body.
However, when we expand the conversation to include florists and bakers, photographers and innkeepers – all of whom operate in the marketplace and are legally required to serve the public without discrimination – our common ground might begin to narrow. Some conservatives have argued that conscience should trump convenience. So, if a florist has a religious objection to providing flowers for a same gender wedding, the argument goes, the couple should simply go elsewhere and find a willing florist. But suppose a florist, on religious grounds, were to object to an interracial marriage? Or an interfaith marriage?
Let's be clear, in jurisdictions that have no anti-discrimination protections for gay and lesbian people, this is not an issue. There are no federal anti-discrimination laws protecting gay, lesbian, bisexual and transgender people from such discrimination. In a majority of states, a person can be fired from her/his job just for being gay, although 90% of Americans erroneously believe that such protection is already in place. Until there is a non-discrimination law that includes LGBT people, vendors are allowed to exercise their right to refuse service or fire gay employees. I believe such an anti-discrimination law protecting LGBT people in their jobs and in the open marketplace should be put in place.
However, in states and cities where such anti-discrimination laws which include LGBT people are in place, lawsuits challenging such discrimination are possible. Such vendors have the right to refuse service, but they must bear the responsibility of their actions, which in those particular states/cities is prohibited. (As a side note, I must admit to not understanding why any gay couple would want an anti-gay photographer snapping pictures of the most important day in their lives! How good could the photographs be if shot by someone totally opposed to what is being photographed?!)
Arguing for the legal right of individuals, organizations, and businesses to refuse to provide goods or services to someone they find objectionable "on religious grounds" is reminiscent of our painful racial past. Decades ago (but within the lifetime of many of us), some restaurant owners refused to serve African-Americans. Their actions prompted sit-ins at lunch counters across the country. If such discrimination against serving LGBT people were allowed, what's to keep the owner of a Subway sandwich shop from refusing service to someone who has long hair, or is obese, or who has a tattoo (tattoos are forbidden in Scripture)? This is a road we don't want to go down!
The murkiest ground of all, it seems to me, exists in the rental of the non-worship space owned by a church or religious organizations. If a church or religious organization routinely rents its "non-sacred" space to the public (a parish hall, for instance), should they be able to discriminate against gay couples who want to utilize those facilities – not for a religious service, but for a social gather, i.e., a reception? This is a much thornier issue.
Perhaps there is a helpful and instructive parallel available to us from tax law. If St. Swithin's-by-the-Gas-Pump has a parking lot, largely unused during the week, and decides to rent out its parking spaces to the public, the income from that rental is taxable – because the provision of parking spaces to the public is not part of its religious (and therefore non-taxable) purpose. The tax laws recognize the difference between the religious purposes which are part of its non-profit missional work, and other activities which are in the "public sphere" and not part of its religious purpose. A church is in the religion "business," not the parking-space business.
This example may seem clear. Let's take a thornier one. Suppose a church or church-related organization wants to facilitate the adoption of children. If that church-related entity wants only to place children in heterosexual households it may do so, as long as it doesn't accept state or federal money to support its operations. In accepting public funds, a church agency enters the public realm of adoption, which is regulated by the state. Should it be allowed to discriminate against gay couples seeking adoption and use public money? My answer would be "no."
Although the activity of providing adoption services might be religiously motivated, the activity itself is a secular one when supported by public money, regulated by governmental authorities, and subject to the same non-discrimination policies of that public activity. If the church-related agency doesn't want to abide by those public-sphere policies, it should not use public money for its activity. This is precisely the reason some Catholic Charities, who accept public money, have gotten out of the adoption business. (They would have the right to discriminate against gay couples if they remained a private agency, but not if they take public funding.)
This criteria, it seems to me, is appropriate, keeping the religious worship, governance and conduct of religious institutions beyond control of the secular authorities, while exercising control over public activities, even if engaging in them comes from a religious motivation. Separation of church and state is a two-edged sword, protecting religious institutions from state interference, but also protecting the secular society from inappropriate infringement by religion and demanding compliance with secular anti-discrimination policies.
I will continue to fight to preserve religious liberty for religious activity. But when a religious organization engages in the conduct of public "business," then it should be made to conform to public policies, or else not engage in that public activity at all. This is not a violation of or attack upon "religious liberty," but rather an appropriate delineation of the boundaries of what is religious and what is secular.
No one believes in "religious liberty" more than I. Religious liberals value religious liberty as much as conservatives–although we may mean something different when we use those words. We would be well-served if we dropped the all-too-broad, and all-too-complex "religious liberty," and were clearer in our delineation of what exactly we mean.
Gene Robinson was the first openly gay bishop in the Episcopal Church. Now retired from ministry, he works with the Center for American Progress, a progressive research and policy organization, on issues of faith and gay rights.
