Raising the Standard.

Balancing Protection for Individuals and Religious Liberty

A conversation on compromise. (Photo courtesy Pui Shan Chan)

Following the Supreme Court’s decision in June that struck down state statutes banning same-sex marriage, the culture war between the recently-discovered constitutional right of same-sex couples to marry and the more mature constitutional right to the free exercise of religion has entered a new phase. Advocates against discrimination and defenders of religious freedom have been battling for decades, with anti-discrimination activists gaining more and more sympathy in the minds of the American public. Religious liberty and protection from discrimination are not mutually exclusive and each deserve a place in America. Now that both sides have secured constitutional protections for their arguments, the United States needs to find an amicable balance between the two before either persuasion uses the mighty power of the government to force full capitulation of the other.

If politicians and judges on both sides are truly willing to compromise a small set of each of their beliefs to find common ground – a big if – then an agreeable policy is not out of reach. Such a policy would require some concessions from both sides.

On the one hand, advocates against discrimination based on sexual orientation must be willing to entertain the possibility that not all opposition to homosexuality and same-sex marriage is rooted in bigotry and hatred. While these are the roots of opposition for a small but still significant number of extremists, the vast majority of people who still oppose same-sex marriage following the Supreme Court’s decision would likely argue that their position is based in moral, religious, and traditional values. Once the anti-discrimination movement accepts that Americans who may disagree with its position are not arguing from a place of hate, but a place of moral skepticism, then they must cede to their fellow Americans all of the rights and privileges associated with having a minority political view granted to them by the First Amendment. This concession may be difficult for some to accept, but it is the price of compromise.

The compromise goes both ways, however. Advocates of religious liberty must be willing to support measures that prohibit discrimination based on sexual orientation, following the example of statutes that do the same for race, sex, and disability. The 14th amendment dutifully protects the individual rights of every American from discrimination already, so another statute that guarantees the rights of a class of people who have been oppressed throughout history should, theoretically, be easy to accept.

The compromise we arrive at, then, comes in the form of a legal distinction between discrimination which is based on sexual orientation and individuals and businesses who refuse to participate in or facilitate a same-sex marriage. Business owners who have moral or religious reservations about same-sex marriage and politely decline to perform a service that involves participation in the marriage should not be regarded by the law in the same way as business owners who decline service to a couple simply because they are gay. There is a genuine distinction between the two and there should be a formal legal distinction as well. The former is an exercise of the business’s 1st amendment rights and the latter is violation of the customer’s 14th amendment rights.

The Constitution and Bill of Rights were designed to protect the rights of the minority while still advancing the political consensus of the majority. Americans have changed their views on same-sex marriage dramatically over the past decade. A majority of Americans now support gay rights and the view that same-sex marriage should be legal, but that does not mean that the minority of Americans whose views have not changed deserve to be prosecuted or persecuted as they are now (consider Memories Pizza in Indiana, or Masterpiece Cakeshop in Colorado).

Religious liberty and anti-discriminatory factions need not be directly opposed to each other. The United States is a country built on balancing different viewpoints. Compromise is just the next step.

— Connor Kitchings is Managing Editor of THE ARCH CONSERVATIVE

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