Religious Freedom Bills: Reinforcements or Violations of the First Amendment?
Last June the U.S. Supreme Court ruled 5:4 in favour of legalising same-sex marriage. Under pressure from religious groups, southern states have been drawing up religious freedom laws to circumvent the legal effects of this ruling.
On April 8th Bruce Springsteen announced on his official website that he was cancelling his Sunday concert in North Carolina. He stated that his decision was intended to show his opposition to the HB2, which North Carolina’s freedom fighters was fighting for. HB2, known officially as the Public Facilities Privacy and Security Act, dictates that the bathrooms that transgender people are permitted to use must match the gender stated on their birth certificate. North Carolina’s cities and counties are not allowed to have their own anti-discrimination rules. The law also requires that bathrooms and locker rooms in public schools, government agencies and college campuses must be gender designated. Bruce Springsteen claims that “It is an attempt by people who cannot stand the progress our country has made in recognizing the human rights of all of our citizens to overturn that progress... Some things are more important than a rock show and this fight against prejudice and bigotry — which is happening as I write — is one of them.”
It is not just in North Carolina. Legislators in several other (southern) US states have proposed similar legislation, which is referred to in the media as “bathroom bills”. This legislation is purported to offer protection to religious communities as a response to the U.S. Supreme Court’s ruling in favour of same-sex marriage nationwide in June 2015. In November 2015 Houston vetoed the Houston Equal Rights Ordinance approved in 2014, which was intended to protect LGBT rights. In late March Kansas passed a law that allows campus religious groups to restrict membership to students that follow a religion. Last Tuesday (April 5th) Mississippi approved a bill (HB 1523) that permits private businesses and individual government employees to refuse services to gay couples based on religious beliefs. (By the way, Bryan Adams also cancelled his Thursday performance in Mississippi.) Tennessee is considering whether to legalise a measure under consideration that would allow therapists and counsellors with “sincerely held” religious beliefs to reject homosexual and transgender clients. These legislations nevertheless have encountered widespread protest and even threats from individuals and enterprises. This February South Dakota dropped its anti-LGBT bill, which would have restricted access to public school restrooms and locker rooms based only on a person’s biological sex. Moreover, due to pressure from major corporations such as Disney, the National Football League, AMC, Coca-Cola and other organisations that threated to pull out their business, the governor of Georgia, republican Nathan Deal, vetoed a “religious freedom” bill which would have allowed faith-based organisations to decline services to homosexual and transgender people. Nevertheless he cited Jesus’ ministry to explain that his decision was not influenced by either side of the debate.
What really concerns me in this wave of legislation and subsequent backlash is that all of these legislations and even the renunciations are done in the name of “religious freedom”. However, specifically with regard to bills restricting bathroom usage, it is not clear how the regulation of bathrooms threatens people’s religious freedom. What is more, it is also not clear how bathroom usage belongs to, or is in any sense relevant to, religious practices. Religion, in this instance, is simply used as a camouflage for discrimination towards transgender people. Admittedly, in some arguments, “bathroom bills” are viewed as a protection of people whose faith denies the existence of transgender people, as everyone’s sex is determined by God at the time of their birth. Nonetheless, if this line of argument is encouraged it could be a slippery slope towards further intolerance and discrimination rooted in religious scriptures.
With regard to bills that allow private businesses and public officials to refuse to serve same-sex couples, these are indeed germane to the issue of “religious freedom” as it is possible that religious people’s faiths conflict with what their jobs require them to do. The question here is do these bills strengthen the protection guaranteed by the free exercise clause in the first amendment of the U.S. constitution, or do they violate the first amendment’s establishment clause? The debate surrounding these bills reflects the delicate but persistent deep conflict between these two religious clauses. Looking at American judicial experience, religious freedom bills generally provide exceptions to existing anti-discrimination laws, which allow someone to discriminate against another if it violates their sincerely held religious beliefs. That is to say, the function of “religious freedom” bills should be the benchmark for exemptions to general laws, rather than a set of rules for a certain group of people. However that is precisely what these religious freedom bills turn into, especially in the case of Mississippi’s HB 1523. For instance, the scope of HB 1523 not only covers marriage services. Adoption and foster care services can also be denied. Religious organisations can fire or refuse to employ LGBT individuals and decline to rent or sell them property. Medical professionals can also refuse to take part in treatments related to “sex reassignment or gender transitioning”. According to Professor Katherine Franke, this bill has already amounted to a violation of the first amendment’s establishment clause by favouring religious believers at the expense of other citizens. Plus, the religious beliefs that this bill aims to protect are selective and favour certain religions, which further infringes upon the establishment clause. They are restricted to three beliefs, which are all conservative Christian claims: that marriage should only be between a man and a woman; sex relations should be reserved to marriage; and a person’s gender is determined at birth.