It is essential to protect LGBTQ persons from discrimination by banning differential treatment based on sexual orientation and gender identity—yet, applied too broadly, such a ban would extensively suppress religiously based practices which are protected by constitutional doctrine and values of pluralism that are intrinsic to our society. Adherents to traditional views about marriage and sexuality dissent from the progressive, now conventional, view that gay and straight conduct and relationships are morally equivalent and equally conducive to human flourishing. These traditionalists strongly believe that LGBTQ conduct, identities, and relationships (and also varieties of straight conduct and relationships) are out of step with the divine plan. As they see it, a broad ban on differential treatment amounts to government enforcement of the progressive view, compelling traditionalists to act, contrary to their religious beliefs, as if there are no legitimate differences between, say, same-sex and opposite-sex marriage.
In Obergefell, 576 U.S. ___ (2015), Justice Anthony Kennedy held that the law must enforce marriage equality and yet also stated that those who cherish traditional marriage as God’s plan must be free to believe it and teach it. A total ban on differential treatment everywhere would make this impossible. Nor is it sufficient to exempt only houses of worship and theological schools from a general ban, for religious convictions compel not only specific ways of worshipping God but also particular understandings of human relationships and distinctive ways of serving neighbors.
Let Organizations Be Diverse
Limiting nondiscrimination requirements by adding religious exemptions provides some balance between the two sets of rights. Laws banning sexual orientation and gender identity discrimination, as well as other nondiscrimination laws, typically do have various limits, including religious exemptions, as Jonathan Rauch emphasizes (“Nondiscrimination for All,” National Affairs, Summer 2017). On these precedents, a Muslim public middle school teacher with traditional beliefs, for instance, might be excused from leading the social studies unit that teaches the moral as well as legal equivalence of same-sex and traditional marriage. Her freedom to decline is an important protection for her religious exercise.
For some who believe that opposite-sex marriage is part of the divine plan, that will not be enough—they will want to proactively teach what they consider the religiously faithful account of intimate relationships, marriage, and sexual identity. In such cases, public school teaching is not a fit option—such teachers must instead look to teaching in a school that shares their convictions, a private religious school—when the school is free under the law to teach and practice its alternative convictions about sexuality and marriage. (On this positive freedom, see my “Beyond the Right of Conscience to Freedom to Live Faithfully,” Regent University Law Review, 24:2, 2011.)
Private schools and other civil society organizations enable people to accomplish things on a significant scale and ought to be free to act in distinctive ways, in accordance with specific visions or missions. Jewish private schools are different than Montessori schools. PETA promotes animal rights and requires public-facing employees to be vegan 24-7, while Omaha Steaks has a very different aim and, presumably, a contrasting employment policy. Zaytuna (Islamic) College, but not the University of Michigan, teaches that certain religion precepts are a good guide for life. The Human Rights Campaign promotes a different view of human sexuality than the U.S. Conference of Catholic Bishops. These are differences embodied not only in what cause is supported, which services are provided according to what values, or what goods are offered, but often also in employment practices and in workplace cultures.
Government spaces and public accommodations have a duty of equal treatment. But we live much of our lives in and through nongovernmental organizations. Organizations that are distinctive—whether religiously, ideologically, morally, or philosophically—enable clients (students, counselees, customers, etc.) to instantiate their convictions by choosing to be served by an organization with compatible or identical values. And they make it possible for workers to exercise their convictions by choosing a compatible workplace. Of course, clients and job seekers need not limit themselves to organizations sharing their values. But the less that civil society and the market are regimented—that is, the less these nongovernmental organizations are obligated to conform to an official ideology—the more the diverse members of our heterogeneous society will all be respected. A society that robustly protects institutional religious freedom enables its various communities of convictions each to live, to a significant degree, in accordance with their respective worldviews and religions.
Fair Diversity Requires Careful Government Policy
Thus, a policy of “maximally feasible accommodation,” to use the term of William Galston in his Liberal Pluralism (2002), is the right policy for a society with deep value disagreements. And yet, as he notes, the government must be attentive to other values, including individual security. When it is essential that people have access to particular goods or services, the government must ensure such access without leaving it up to the decision of private organizations. And no organization should be able to imprison people within, allowing no exit. No doubt there must also be other limits on how, where, and when a private organization can go its distinctive way. Yet, while restrictions on institutional religious freedom cannot be avoided, the government ought to be as creative as possible to minimize such restrictions. Blanket nondiscrimination requirements go too far; unilateral protections for religious exercise do not adequately protect other rights. Public policy needs to consider the many different settings where LGBTQ rights and religious exercise might collide and then devise solutions.
That is the aim and design of the Fairness for All Act, which is the outcome of extensive and detailed examinations of how people and organizations holding contrasting views of human sexuality might live side by side across the various domains covered by civil rights law: employment, housing, public accommodations, government funding of social services, governmental operations, jury duty, and access to credit. Fairness for All would enable religious organizations to follow their religion-based convictions about marriage and sexuality in a legally regulated context that ensures that people with the opposite view are also able to live by their convictions.
In this care for the autonomy of religious institutions, the Fairness for All Act follows the path laid out by the U.S. Supreme Court in Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC (2012) in its endorsement of the longstanding “ministerial exception” to employment nondiscrimination law. Yet, as the Court and multiple federal, state, and local laws acknowledge, respect for religious conviction and exercise requires not only that core religious organizations have the autonomy to choose their clergy and religious teachers. Non-steepled religious organizations, such as schools, adoption agencies, and refugee resettlement programs, also need a robust freedom to be religiously selective in assembling their staffs and a robust freedom to operate in accordance with their religious convictions. Robust freedom but with limits—Fairness for All seeks to identify the appropriate boundaries.