Broad Freedom for Faith-Based Organizations Is the Way to Balance LGBTQ Rights and the Freedom of Religious Exercise

Notable clashes between LGBTQ rights and religious freedom have involved faith-based organizations—houses of worship, hospitals, colleges, high schools, foster care agencies, and other organizations that hold religion-based morally conservative beliefs and practices concerning human sexuality and marriage. Marc Stern already foresaw many of these conflicts in his 2008 essay, “Same-Sex Marriage and the Churches.”

Nevertheless, I propose that our society can enhance protections from discrimination for LGBTQ people with adequate freedom for religious exercise by strongly protecting—within appropriate parameters—the ability of religious organizations to maintain their countercultural organizational practices and their distinctive ways of providing services. It is by virtue of an extensive and diverse civil-society sector, including a diverse free market, that people and organizations who hold contrasting, even conflicting, moral values, religious beliefs, and related distinctive practices can put their diverse convictions and practices into action without others being compelled to suppress their own deeply held beliefs and practices.

This approach—call it extensive civil society pluralism—is embodied in the Fairness for All Act, H.R. 1440, an alternative to the Equality Act (which is discussed in a separate article). Fairness for All would amend federal civil rights law by adding sexual orientation and gender identity as new protected classes and simultaneously strengthening protections for religious exercise and religious organizations. 

Contrasting Worldviews

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.

Three Settings for Balancing LGBTQ and Religious Exercise Rights

Adoption and Foster Care

In its recent Fulton v. City of Philadelphia decision, 593 U.S. ___ (2021), the Supreme Court ruled that the city was not constitutionally permitted to withdraw its foster care contract with Catholic Social Services (CSS) on account of CSS’s refusal to certify same-sex couples as foster parents. Set aside here the specific legal reasoning. Note the Court’s agreement with the city that protecting access by LGBTQ people to foster care services is a weighty interest and yet its view that this interest does not necessarily outweigh the freedom of CSS to follow its religious convictions about sexuality and marriage. The Court did not agree that the city’s goal required a universal ban on sexual orientation and gender identity discrimination by foster care agencies. That is because it was clear that CSS’s practices did not need to be suppressed for LGBTQ access to foster care services to be secure. Indeed, despite CSS’s longstanding practice, there had been no barrier to LGBTQ couples being certified to foster. None had even asked CSS to assist in the process.

The existence of diverse providers in Philadelphia made it possible for both LGBTQ people and couples with traditional moral values to be served by a private agency with compatible values. However, this positive outcome seems to have developed without specific planning. That is not an adequate way of securing the various rights. When people of both worldviews ought to be able to access some service, the government cannot leave a satisfactory outcome to chance. In the Fairness for All Act, accordingly, a lengthy and detailed section sets out how, in foster care and adoption services, states will ensure that diverse families can be served by diverse providers, with access to services guaranteed to LGBTQ people.

Government-funded Services

Must the government refuse to fund—to partner with—discriminatory service providers? This is not an adequate general principle, for it requires a uniformity in services while those needing the services have varied convictions and preferences. For instance, the federal government best serves moderate-income students with their diverse convictions by providing them with loans or scholarships to use at whichever university they respectively favor rather than by channeling them all into a government-subsidized, nondiscriminating, secular public institution.

This diversity ought to be preserved when federal LGBTQ civil rights protections are enacted, as Fairness for All proposes, for example, for adoption and foster care. Often enough, though, the government can partner with only one organization in some location, and it must then require that organization to serve all who are eligible. For example, every provider, whatever its beliefs, that participates in the Runaway and Homeless Youth Act program should have to serve all who are eligible for help, straight or gay, cis or transgender. But that is no reason to require grantees to adopt the progressive view throughout the organization. Thus, Fairness for All protects the freedom for Catholic, Muslim, orthodox Jewish, and evangelical partners of the government to continue to teach their traditional marriage views in the activities they offer separate from the government-funded program.

Commercial Entities

Businesses open their doors to all and rightly are subject to a public accommodations nondiscrimination requirement. But the requirement should not be extended without limit. After all, it is the nature of businesses and the free market that each competitor can be distinctive, manifesting some special quality that will entice passersby to enter its open door instead of going elsewhere. Given the abundance of competitors, a capacious freedom should be allowed for commercial entities to be niche businesses, offering or not offering particular goods and services as befits their respective animating visions. In my view, offering one or another specific array of goods and services is a different matter than barring the door to particular people because of their religion, sexuality, or gender identity.

Accordingly, the Fairness for All Act would apply its public accommodations ban on sexual orientation and gender identity discrimination only to businesses with fifteen or more employees (the threshold at which Title VII comes into effect), allowing smaller companies to narrowly tailor their services, arranging weddings, for example, only for lesbian or opposite-sex couples. Fairness for All, additionally, strengthens protections for diverse employees inside larger companies, making it easier for them to take Fridays as their holy day or to decline for reasons of conscience to facilitate certain services, as long as the company will ensure that the services will still be available.

Proximate Justice

Both progressives and traditionalists regard their views as right for everyone, so it is natural to want the laws and government practices to encode their own beliefs and not the other view. But the government cannot simultaneously protect LGBTQ rights and religious exercise if it makes one view or the other obligatory on everyone everywhere, precluding religious organizations from operating in accordance with their tenets. When it instead allows civil society organizations to be guided by one set of beliefs or the other—within limits—everyone will often be able to engage with hospitable organizations. Alas, we will all, often enough, encounter organizations that are objectionable. This, however, is the price of living together despite, and with, our deep differences about matters that matter deeply.