Religious freedom and LGBT rights: It doesn't have to be winner-take-all

Religious freedom and LGBT rights: It doesn't have to be winner-take-all
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A dangerous assumption is gaining ground in our national conversation and that is the notion that protecting the rights of one group can only come at the expense of protecting the rights of another.

This winner-take-all approach is found in many contexts, but it is particularly evident in the highly publicized collisions between LGBT rights with religious freedom. But it does not have to be this way. Reconciling competing rights is something we’ve done throughout our history. Indeed, as Justice Oliver Wendell Holmes observed, our Constitution “is made for people of fundamentally differing views.”

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Having worked with faith leaders and lawmakers of both parties in more than thirty states on these issues, I see growing support for an approach that reconciles competing rights in a way that doesn’t treat these rights as zero sum. That’s because religious rights and LGBT rights have legitimate claims for protection.

While the landmark 2015 Obergefell decision guaranteed the rights of gays and lesbians to marry, the court also went out of its way to recognize the moral and legal legitimacy of the millions of Americans who disagreed with the decision.

Justice Anthony Kennedy spoke for all nine members of the Supreme Court in referring to traditional marriage supporters as people whose “sincere convictions“ are “central to their lives” and who must receive “proper protections” under the First Amendment. Then-President Obama (perhaps reflecting on his own evolution) acknowledged that, “Americans of goodwill continue to hold a wide range of views on this issue.”

The demands we see now for legal retaliation against proponents of traditional marriage reflect a sharp 180-degree turn from the “live and let live” arguments that persuaded Americans to change their views on marriage in the first place.

Indeed, all of the 11 states that enacted marriage equality before the court acted — including heavily Democratic legislatures like Rhode Island and Hawaii — included strong protections for religious objectors. These legislators comprehensively protected the rights of faith-based organizations to continue to staff and practice according to their beliefs about marriage. I have worked closely with many of these lawmakers, who were acting pre-Obergefell, and any insinuation that their attempts to balance different rights was somehow an effort to “limit” LGBT rights is simply not the case.   

Marriage equality is now the law. There has been no organized effort to interfere with these rights, and isolated attempts to do so have achieved only publicity — not legal success. Still, many complex and difficult issues unaddressed by Obergefell remain unresolved. Yes, more conservative legislatures may naturally seek stronger religious freedom protections than their blue state counterparts, but this does not discredit the entire enterprise of legislatively addressing these issues.    

At the same time, religious freedom proposals often raise concerns about discrimination against the LGBT community that legislators must take into account. Remarkably, it remains legal under the civil rights laws of the United States and 28 states to discriminate against LGBT Americans in housing, hiring, and ordinary commercial service. Even religious bodies with traditional teachings about marriage and sexuality condemn unjust discrimination against LGBT citizens.

Thoughtful religious leaders — who spearhead some of our nation’s most impressive work re-settling refugees, addressing opioid addiction, and sheltering runaway LGBT youth — often ask me, “How can we protect the LGBT community from discrimination without having those same laws turned against us and the people we serve?”

One answer is found in legislation passed by Utah’s Republican legislature addressing the rights of LGBT people and faith communities concurrently. Lauded by then-President Obama, this approach is favored by a growing list of faith and business leaders.  

Tolerance, freedom, and protecting minorities — those are the values of America at its best. Sexuality and religion are both core to individual identity, but they are also the subject of profound disagreements among people of goodwill. The best way forward is to give people the widest possible space to live out their identities without having to fear for the loss of their livelihoods or the ministries that give hope to so many of our country’s most vulnerable citizens.

As LGBT rights continue to advance, tensions with religious freedom will naturally continue. The most just outcomes will result if we continue the long American tradition of balancing rights, rather than either side insisting that their rights should always come at the expense of others.

Tim Schultz is the president of the 1st Amendment Partnership, an organization dedicated to protecting the religious freedom of Americans of all faiths, primarily through advocacy in state legislatures.