America’s culture wars show little sign of letting up. In recent years the federal government’s executive and judicial branches have heated the battle by pressing hard on controversial LGBT issues, including the right to marry. Some state legislatures have followed suit. California and Iowa, for instance, are presently weighing new laws designed to pressure recalcitrant faith-based organizations to get on board.
Unsurprisingly, those who believe their religious rights are being infringed by these developments have pushed back. A series of southern states have passed laws they say are needed to protect religious freedom. These laws in turn have generated some push back of their own: state boycotts by a collection of high-profile individuals, companies and organizations. Not to be outdone, the U.S. Department of Justice fired off a lawsuit against North Carolina’s law in particular—to which North Carolina quickly responded with a countersuit against the Justice Department. Thus do the battle lines in this dispute seem more entrenched than ever.
What should we make of all this pushing and shoving? Inevitably in our digital world, a cacophony of commentators have offered their counsel. Virtually all of America’s major media outlets have declared themselves on the issues. I view myself as reasonably sympathetic to both tensions in this anti-discrimination/religious freedom divide, so what I have looked for are treatments that do justice to both sides. So far, however, I have been disappointed.
Mainstream media commentators tend to treat this two-sided dispute as if it were about only one thing: unfair efforts on the part of intolerant people to “limit anti-discrimination protections for lesbian, gay and transgender people.” Listening to these analyses one might never suspect that there are genuine “first freedom” issues at stake. The religious freedom tension in this debate often comes off as unworthy even of acknowledgement, much less respect.
In this regard, this conflict reminds me of the abortion debate. Major media voices typically treat the abortion debate as if “a women’s right to control her own body” is the only relevant issue. Yet this is not the only issue, nor even the chief issue. A woman obviously has a right to control her own body; one could scarcely conceive a more fundamental human right. Reasonable people on both sides agree on this crucial point—which is the best indicator that this is not what the debate is about.
The dispute in the abortion debate is about the rights of the unborn. No human right is absolute, not even one so fundamental as the right to control one’s own body. If I am convicted of a crime, society has the right to incarcerate my body, contrary to my will; if the police suspect me of smuggling drugs through the airport, a competing set of interests may justify probing my body’s cavities for contraband, contrary to my will. The core issue in the abortion debate is whether (or not) there are any such competing interests—that is, those of the unborn—that society must insist on negotiating with the acknowledged rights of the mother. This is the issue that lies at the center of the abortion dispute.
But if this is so, one would never glean it by listening to America’s leading media outlets. They persistently portray abortion in terms of only one side of the moral tension: the rights of the mother. Abortion is treated almost exclusively as a “women’s issue.” And of course, if this is the only lens through which the dispute is viewed, the result is a foregone conclusion. But that result will be deformed by society’s failure to give due attention to the other moral tension.
In a similar way, America’s leading media outlets tend to treat the current religious freedom/gay rights conflict as if only one side of that tension is legitimate. In discussion after discussion, the lens through which the debate is viewed is that of anti-discrimination against the LGBT community. The religious freedom side of the tension typically receives a back-of-the-hand treatment that reduces to little more than religious people claiming the right to be intolerant. One looks in vain in our national media for a discussion that grants the religious freedom tension the respect it deserves.
Well, not quite in vain.
America’s religious communities should stand up and applaud USA Today's editorial board (which, the paper is quick to point out, is distinct from the news staff) for taking a courageous stance that calls for a more balanced approach to the religious freedom/gay rights debate.
In an April 11 editorial, the USA Today editorial board rightly noted that in America, “when the Supreme Court gets ahead of the elected branches of government on social issues, particularly when a decision overturns established law in dozens of states,” these sorts of conflicts are inevitable. In this current case, the editors helpfully acknowledge that this has left many religious Americans feeling besieged “by powerful cultural forces backed by the courts,” feelings which are not the figment of their imaginations. Yet the editorial also warns against legislative backlashes that go too far by permitting “open discrimination against any member of the LGBT community.” What our society requires, the editors rightly argue, is a legal scalpel that cuts “a careful line between protecting religious freedom and ensuring the rights of gays and lesbians.”
Where this USA Today editorial was less useful, however, was in helping its readers discern where that “careful line” should be drawn. And in this shortcoming it is scarcely alone. Most of the public discourse surrounding this conflict continues to obscure that careful line by failing to appreciate the key issue at stake for religious people. That failure is best measured by how often the civil rights era is conjured up as an analogy.
The central focus of the USA Today editorial was on how “laws in Mississippi, Georgia, and North Carolina go wrong” in seeming to grant “broad rights to discriminate against a group of people in ways uncomfortably similar to the blatant ‘we don’t serve your kind here’ discrimination against blacks and Jews that Americans have worked hard to banish.” But many religious Americans read this sort of thing and scratch their heads. They neither seek nor want any such “broad right to discriminate.” In fact, in their estimation, the constant introduction of this analogy only smudges the “careful line” the editors seem to be seeking.
What is at stake for religious Americans in this conflict is not the “we don’t serve your kind here” discrimination of the old segregationist lunch counter. That sort of injustice is as odious to them as it is to any other fair-minded American. Their religious convictions call them to stand against such discrimination, not with it. But they also believe this history makes for a bad analogy with our current situation, in two important ways.
First, despite the misguided biblical arguments of some, for those segregationists who denied black Americans a seat at the lunch counter, there were no comparable religious or moral issues at stake, certainly not by the biblical and theological standards of historic Christianity. There was only bare-knuckled racial discrimination. But the gay issue is different; it inherently raises for many people, not all of them religious, a host of moral questions. This makes the racial analogy a misleading one. It ignores this difference, thereby confusing the issues rather than clarifying them.
Second, and even more important, the analogy with racial discrimination obscures the core dilemma for religious people. That dilemma has to do with the issue of complicity.
Violations of Conscience
A Christian café owner, for instance, may believe that homosexual behavior is wrong. But that conviction is irrelevant when serving a gay person a sandwich at her lunch counter. This is simply another customer who deserves to be treated with the same courtesy and respect as any other. The question of the customer being gay doesn’t even come up.
Or, alternatively, perhaps it does: suppose the customer proceeds to inform the café owner that he will be marrying his gay partner next month. It doesn’t matter. The customer’s homosexuality remains irrelevant. Given her religious convictions, the Christian owner may not approve of the wedding. But she says to herself, “We live in a free society; this person’s personal life is not my affair. In my restaurant, he will receive the same courteous service as anyone else.”
So far, this situation presents no dilemma for anyone. But suppose the customer requests the café owner to cater the reception for his upcoming wedding. Suddenly the owner’s religious convictions are brought into play. If the customer’s private life is not the owner’s affair, managing her own conscience certainly is. The café owner has been requested to play a participating role in celebrating something she believes is wrong. This places her in the no-win position of having to choose between pleasing her customer or violating her religious convictions—which is no choice at all.
It is crucial to recognize the absence of any blanket discrimination here. The café owner is not discriminating against the gay customer because he is gay, as black people were discriminated against because they were black. In fact, her unwillingness to cater the wedding is not discriminatory at all. She would respond the same way if a heterosexual customer asked her to participate in an event that compromised her religious commitments (say, a gathering to promote atheism).
The issue for the restaurateur is not who the customer is but what she is being asked to support. Hers is simply a conscience-driven unwillingness to become complicit in something that violates her religious convictions. The issue would be no different if a gay restaurateur were being requested to cater an event that violated his religious convictions. No nation whose constitution explicitly guarantees its citizens the “free exercise” of their religion has any business censoring them for doing so.
This issue of complicity is the “careful line” the USA Today editorial both recognizes and then blurs. Speaking of the Mississippi law, the editors say, “The First Amendment already protects the right of any religious leader to refuse to conduct a gay marriage, but this law protects virtually anyone in the wedding business — even jewelry stores — from having to do business with gays.” But notice that the First Amendment says nothing about religious leaders. Its acknowledged protection against forced complicity is available to every American citizen, including jewelers. Religious people claim no blanket right to discriminate against anyone. They only claim the right not to be forced into complicity with something they believe is wrong, whatever it may be.
Consider the irony when this complicity shoe is on the other foot. Last year Canadian media reported the case of a gay couple requesting their money back from the jeweler who had made their wedding rings. The couple had liked the rings and the service they received, and they recommended the jeweler to their friends. But when they later discovered that the jeweler did not support gay marriage—he had posted a sign in his store that read, "The sanctity of marriage is under attack. Let's keep marriage between a man and a woman"—the couple sought a refund. They didn’t want anyone with convictions such as this jeweler’s, they said, to have anything to do with their wedding.
The problem here was obviously the issue of complicity. The jeweler had in no way discriminated against the couple. "They were great to work with,” said the couple. The jeweler’s only sin was his moral conscience. While rainbow flags flew up and down the street in other businesses, the one small sign hanging on the wall of the jeweler’s shop was his undoing. He lost business and was trashed on social media. "I had to shut down the Facebook page,” he said, “because of so many hate emails and phone calls and just really nasty stuff."
So here is the irony: For discriminating against the jeweler, based solely on his moral convictions, the gay couple was valorized, while the jeweler was punished. But conversely, had the jeweler refused to participate in their wedding due to those same convictions, the gay couple would still have been valorized and the jeweler trashed. Heads I win, tails you lose. This is the very definition of injustice. The only good thing that can be said about this episode is that the gay couple obviously understood the principle about even the jeweler being “complicit” in their wedding.
Needed: A Fuller Account of Rights
What is so often lacking in our current religious freedom/gay rights debate is the kind of solicitude for religious freedom recommended by an earlier USA Today editorial. In a March column appearing under the headline “Religious freedom deserves deference,” the newspaper’s editorial board argued that the government’s attempt to force religious organizations such as the Little Sisters of the Poor to participate in—that is, to become complicit in—the provision of abortifacients to their employees was an unwise and unnecessary imposition on their religious freedom. Had the government “thought long and hard about the meaning of religious freedom, one of the nation’s most fundamental rights,” the board declared, it could have avoided years of legal battles, and “one of the nation’s most sacred rights—religious freedom—would have been granted the respect it deserves.”
A month later a member of USA Today’s Board of Contributors took this argument one step further. With rare and admirable candor his editorial acknowledged that not all of the problem lies with government. “Religious freedom often doesn’t matter much to many of us who are defenders of gay rights,” he said. “We pay it lip service but are perfectly willing to dispense with it the minute it bumps up against other principles nearer and dearer to liberal hearts. . . . In instances where it is least welcome and, thus, matters the most, we relegate it to second fiddle — or fire it from the orchestra altogether.”
These are strong statements coming from one of America’s leading media outlets. The USA Today editorial sensitivity to the issues of religious freedom deserves to be applauded. It is precisely what is missing in so much of the current debate.
Giving due deference to the First Amendment’s protection against forced complicity doesn’t answer all the current questions, to be sure. It doesn’t resolve, for instance, which bathroom a transgender person should use. Religious people may or may not favor permitting individuals to decide which restroom they prefer, but it’s hard to see how this debate raises the question of forced complicity.
Nor does this sort of deference to religious freedom resolve all the questions even where complicity is the issue. If there is no complicity involved in serving a lunch counter sandwich, but significant complicity in catering a wedding, and complete complicity in conducting that wedding, what about a religious apartment owner renting to a gay couple? A refusal to do so skirts very close to the old “we don’t serve your kind here” discrimination thoughtful Christians must deplore. Attempting to apply the complicity argument in such situations may require stretching the claim beyond its breaking point.
The fact is, there are two tensions in our current conflict, not one. Religious people can scarcely insist that their religious freedom be respected if they are unwilling to respect the gay community’s right not to be treated unjustly. The wise and balanced governmental accommodation the USA Today editorial called for in the Little Sisters of the Poor case—and which the Supreme Court provided in the Hobby Lobby case—is the same kind of accommodation religious people should be looking for here. It’s a stance that takes into consideration both sides of the tension, not just one.
I am a strong believer in protecting the constitutional rights of LGBT people. In the same way, I believe strongly in protecting the constitutional rights of religious Americans. Thus, I agree with the USA Today editors when they say, “When rights like these conflict, it’s in the best American tradition to work out an accommodation. The force of government should be on the side of protecting the broadest possible scope for both rights, not on the side of rank discrimination.”
To this I would only add that this principle holds true whether that “rank discrimination” is against gay people or against people of religious conviction.
Duane Litfin is President Emeritus of Wheaton College and the author of numerous books, most recently, Paul’s Theology of Preaching (IVP Academic).
This essay has been edited to clarify that some segregationists used biblical and moral reasoning to support their views, however midguided.