Why discriminating against gays isn’t a religious right

Private colleges are in the limelight this week in the religious right’s war against gays.

Earlier this week, the Seattle Times reported that Seattle Pacific University, a private Methodist-affiliated college, is suffering enrollment declines and shedding faculty and students because of its policy against hiring LGBQT people (see story here).

Meanwhile, Yeshiva University, a private Orthodox Jewish college in New York, is in the news because of a Supreme Court ruling in a state discrimination lawsuit against the school over its refusal to recognize an LGBQT student club (details here).

That ruling on Wednesday, September 14, 2022, was a 5-4 vote against staying a state court’s order requiring Yeshiva University to recognize a “Pride Alliance” club for LGBTQ students while the issue is litigated in the courts (see story here).

This might surprise some readers, given the 6-3 conservative majority’s inclination to coddle bigots in the name of First Amendment religious freedom.

Simply explained, it was a procedural ruling, not a decision on substance; and Roberts and Kavanaugh joined the court’s three liberals in ruling that Yeshiva should seek a stay in state courts. That’s in keeping with longstanding Supreme Court precedent and practice.

But Alito, the precedent-shredding rebel who authored the decision overturning Roe v. Wade, doesn’t want to let a state court make the school recognize the LGBQT club even temporarily while the case works its way through the courts. He said, “The First Amendment … prohibits a State from enforcing its own preferred interpretation of the Holy Scripture.” Justices Thomas, Gorsuch, and Barrett concurred.

But that wasn’t the issue before them. All this ruling involves is whether Yeshiva University should pursue state court remedies before asking the U.S. Supreme Court to intervene. That’s Procedure 101 taught to first-year law students. Alito also is wrong when he asserts the state is enforcing an interpretation of scripture. The state court, in ruling for the student club, did not interpret the Bible or substitute one religious belief for another; it simply enforced a state anti-discrimination law.

Falsifying the facts of cases before them is becoming a habit of these religion-driven justices. Earlier this summer, Gorsuch authored an opinion in a praying football coach case that falsely stated the coach was only praying privately on the sidelines (see details here). The three Trump appointees — Gorsuch, Kavanaugh, and Barrett — also lied in their Senate confirmation process about respecting the Roe v. Wade precedent. The Supreme Court has become a dishonest court.

But I digress. It doesn’t matter that these schools are private. Society has an interest in behavior that affects other people. Impact on others is what makes it a matter of public concern, and discrimination by its very nature affects others. Congress and state legislatures have the right and power to prevent discrimination. That doesn’t interfere with the free exercise of religion, as it doesn’t dictate what people can believe or say, it only bears on behavior toward others.

Religious anti-gay discrimination has its roots in Biblical and Torah passages condemning homosexuality based on the social mores that existed thousands of years ago when these texts were written. In our society, people should be and are free to believe as they wish, but have never been free to behave as they want when their behavior harms others. The job of the courts, including the Supreme Court, is to thread this needle; not to take a sledgehammer to anti-discrimination laws.

Among present-day American conservatives, anti-gay discrimination is rooted in ignorance and stubborn refusal to acknowledge that homosexuality is a biological trait people are born with and can’t change, just as race is, and isn’t a behavior as they mistakenly insist. This is the 21st century and our society should be moving beyond enacting public policies driven by ignorance and prejudice. But the Supreme Court that McConnell packed with reactionaries is going in the opposite direction.

On the same day the court narrowly avoided prematurely interceding in a state court action, Justice Kagan talked about court legitimacy (see story here). She said a court is legitimate “when it’s acting like a court” and illegitimate when its members try “to impose personal preferences on a society.” (For what it’s worth, dishonesty doesn’t help a court’s legitimacy either, but she didn’t mention that.)

Although she didn’t mention Roe v. Wade by name, or discuss the religious affiliations of her fellow justices, it’s worth noting that all six of the justices who voted against Roe v. Wade are Catholics, which leads to suspicion that the court’s Catholic majority is enforcing Church doctrine and teaching on society at large, including non-Catholics. There’s now a legitimate fear they’ll do the same with gay rights.

That would come into play if the court rules there’s a religious right to discriminate against gays that overrides anti-discrimination laws, which Wednesday’s vote suggests is the direction that Alito, Thomas, and at least two of the Trump triumvirate want to go. That ruling offers no assurance this won’t happen. When it comes up, Kavanaugh at least can be expected to join the court’s four other religious zealots in again misapplying “freedom of religious belief” to take away the rights of others, as they did in the Dobbs case overturning Roe v. Wade.

This is stretching the First Amendment far beyond the “original intent” of the Founding Fathers that conservatives are so fond of citing. The First Amendment created rights; it didn’t take any rights away. Its religion clause simply says government can’t get in the religion business, nor prohibit the “free exercise” of religion. This addresses what people believe, not how they behave. For example, even though the Mormon sect practiced polygamy in the 19th century, it was outlawed by Congress and all 50 state legislatures, and those laws were upheld even though they prevented a religious group from putting its beliefs into practice.

Even if anti-discrimination laws are enforced, Catholics, Protestant evangelicals, Orthodox Jews, and others can still believe that homosexuality is a sin. Based on freedom of association principles, they don’t have to let LGBQT people join their congregations or groups. Some evangelical preachers even preach to their congregations that homosexuals should be put to death, and based on free speech principles, they can say that — but they can’t go out into society and kill gay people.

By the same reasoning, religious beliefs should not exempt discriminatory behavior from anti-discrimination laws. That’s what the Yeshiva University legal case is about. (But if they do, the school should lose its tax-exempt status; see story here.)

In the case of Seattle Pacific University, donors, instructors, and students are voting with their feet.

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