Religious freedom laws suppress visibility for the benefit of the pious.

The Real Goal of Religious Freedom Laws? Making Queer People Go Back Into the Closet.

The Real Goal of Religious Freedom Laws? Making Queer People Go Back Into the Closet.

Outward
Expanding the LGBTQ Conversation
June 30 2017 10:45 AM

Religious Freedom Laws Are More About Suppressing Visibility Than Protecting the Pious

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They don't want to see us.

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Hey, Daddy! is a monthly column exploring the joys and struggles of parenting from a gay father’s perspective. Got a topic idea or question for Daddy? Send your letter along to johnculhane19104@gmail.com.

Discrimination threatens LGBTQ visibility by encouraging subterfuge. I know from experience.

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When David and I were foster parenting our daughters, I was in court for a remarkable exchange. Even though the status hearing to discuss the birth mother’s progress wasn’t supposed to be about us—except to make sure the girls were in an appropriate place—the attorney for the birth mother went down an unexpected path. He asked the city worker for the names of the foster parents. Taken aback, she provided them, and the attorney then repeated them, loudly, for the benefit of the court: “John and David, Your Honor.”

This revelation put the judge on high alert. In his chambers before the next hearing, he expressed concern that the girls were with “two men.” (One of the attorneys ratted him out to me, a courageous act for which I will be forever grateful.) The judge’s concern had real consequences. He entertained a ridiculous suggestion that would have torn the girls away from us after a year, and prolonged the termination of parental rights process for about a year beyond what the law and the evidence called for. (Only after that step was completed were we able to adopt our children.)

It would have been worse had the law not been on our side. Philadelphia’s antidiscrimination law protects the LGBTQ community, so I was able to work behind the scenes to move the case to a just resolution. Without that law, there would have been no effective way to get the judge to do the right thing. Since we couldn’t marry at that time in Pennsylvania in any case, without the law’s protection we probably would have been advised to hide our relationship, and for one of us to have entered the foster/adopt rolls as a single parent.

Although Philadelphia has a law that outlaws discrimination on the basis of sexual orientation or gender identity (SOGI), Pennsylvania offers no similar protection. People can be fired for coming out at work and denied basic goods and services available to the general public. That’s also true in about half the states, even as of this writing. And this lack of protection has real-world consequences. When I lived in Dallas for a few months, I was shocked by the tiny pool that the LGBTQ swim team occupied. I was even more aghast when I learned that the team had been turned away from a much more suitable location expressly because it was gay-identified. Many of the gay men I met there were closeted—which is exactly the result you’d expect when people know they can be treated so crappily when they come out.

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These experiences were very much on my mind as I read Debating Religious Liberty and Discrimination, the new book pitting John Corvino against Ryan Anderson and Sherif Girgis. Corvino, a philosophy professor, has long been one of the leading public intellectuals arguing for a progressive, but not radical, LGBTQ rights regime. Anderson and Girgis are best known for writing, with Robert George, What is Marriage?, a book that presents a natural law argument for defining and limiting marriage to the union of one man and one woman. (Echoes of their argument about the natural “complementarity” of mothers and fathers can be found in Justice Alito’s dissent in Obergefell v. Hodges, the 2015 Supreme Court marriage-equality decision.)

As the title suggests, Debating Religious Liberty and Discrimination is a chapter-by-chapter volley between the combatants. They argue over the wisdom of religious freedom restoration acts, which excuse non-compliance with various laws. Among those laws, of course, are SOGI antidiscrimination statutes. In an unexpected twist, Corvino is forced to spend much of his time and space making what should be the easy case for such laws, because Anderson and Girgis think they aren’t needed in the first place. For them, religious exemptions need not even arise in the case of anti-LGBTQ discrimination, because such discrimination should be perfectly legal.

Their argument, in a twisted nutshell, is that “the strongest grounds for enacting SOGI laws—denials of housing, or employment, or medical care—are mercifully rare to vanishing. So are denials in public accommodations.” Tell that to any trans-person caught up by laws mandating that they use restrooms inconsistent with their gender identity. (They also suffer extensive discrimination in other public accommodations.) More centrally, as Corvino points out, “there is a substantial literature demonstrating not only the harms of anti-LGBT discrimination but also the effectiveness of antidiscrimination law in ameliorating it.”

Anti-discrimination laws are important not just for the legal protections and recourse they create, but also for their teaching function. As Supreme Court Justice Anthony Kennedy stated in a 1996 case, “enumeration is the essential device used to make the duty not to discriminate concrete”; naming protects the group in question and serves the law’s important signaling function. By stating that racial, gender, disability, SOGI and, yes, religion are protected, antidiscrimination laws have vital secondary effects. As Corvino points out, they reduce the incidence of hate crimes and cut down on stigma—which is itself a risk factor for discrimination, anxiety, and even suicide.

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Anderson and Girgis ignore these concerns. But just in case there are SOGI laws, they argue in support of businesses that would just rather not deal with LGBTQ couples trying to use wedding-related services: Their rights to public accommodation, not to mention just being themselves in public, should be trumped by the business owners’ rights to invoke religious exemptions. After all, they say, it’s not the parties’ sexual orientation the business owners object to, but their conduct in marrying.

Corvino skillfully picks this nonsense apart, noting that Anderson and Girgis aren’t as skeptical of other antidiscrimination laws. He wonders whether they would support a motel owner who refused to rent a room to a Catholic couple on the grounds that they weren’t “true Christians.” (I have a guess: They wouldn’t.) His peroration is devastating: Religious freedom laws are “not really about freedom. They’re about signaling disapproval for certain forms of life. Their proponents want freedom for themselves that they proudly oppose for LGBT citizens: the freedom to marry, [and] the freedom to enter the commercial sphere without the threat of discrimination. It’s a double standard.”

Legal protections, even where they exist, are hardly a panacea. When I returned from Dallas, secure in the belief that what happened there could never happen to my Philadelphia LGBTQ swim team, I was coaching one evening when the coach of the youth diving team, which used the diving well right next to the pool, approached me angrily to complain that two of the guys had kissed each other on the pool deck. (“Kids don’t need to see that!”) Never mind that he was likely the only one who even noticed the kiss. Never mind that on a diving team there were sure to be some young gay divers. (Greg Louganis, Tom Daley … ) Never mind that a similar, utterly chaste kiss between a man and a woman would have gone unremarked. A few weeks later, we were kicked out. So were all other outside groups that had been renting the pool. Although we’d never be able to prove it, that one kiss had caused a cataclysm, culminating in a camouflaging wholesale policy change.

That’s the kind of visibility-punishing outcome Girgis and Anderson are after. They turn the facts of the world upside down, ignoring the deep homo- and transphobia that still persists even today and casting the vast Christian majority as the true “victims.” The universe they’d prefer to inhabit would drive LGBTQ people back into a closet, afraid that visibility would compromise their jobs, their safety, and even their lives. For some, that’s already the reality. We can’t afford to fall further back.

John Culhane is the H. Albert Young Fellow in Constitutional Law at Delaware Law School, and Co-Director of the Family Health Law & Policy Institute. He is a frequent contributor to Slate, and is working on a book about the legal recognition of relationships other than marriage. Following him on Twitter is possible, but not necessarily wise.