Why the “Religious Freedom” Bills Are Bad for Christians (Part I)

There is something rotten in the state of Mississippi. Earlier this month, the governor of Mississippi signed HB 1523 into law. It’s called the “Protecting Freedom of Conscience from Government Discrimination Act” and it is similar to other laws being advocated by conservatives in red states since the Supreme Court legalized same-sex marriage last year. These laws are controversial, to say the least.

Last week I posted a link to a video explaining North Carolina’s “Bathroom Bill” featuring Katie Couric. A number of my readers were disappointed that I had not shared my own thoughts on these pro-religious freedom/anti-LGBT rights bills. The reason, as I explained on Facebook, was that I was too busy working on a new book to put my thoughts on this subject down. Pressure has mounted, however, so here we go.

Here’s my short response: Although there may be a few redemptive elements to these bills, overall I find them too dangerous, unneighborly, and unchristian.

Over the next few days, I’ll post my three reasons for opposing these new religious liberty bills. Here’s the first…

Reason One: The rights of churches and pastors to not perform same-sex marriages is not in danger.

While researching the interwebs about these new religious liberty bills, one line of reasoning emerged repeatedly—Christians are worried that the government is going to force churches and pastors to perform gay marriages, and state laws must be passed to stop the overreach of liberal courts and a zealous federal government. While such logic may be gobbled up by fearful conservatives, there is zero chance of this happening.

The last time someone tried to prosecute a minister for marriage discrimination was in 1985 after a pastor refused to marry an interracial couple in Kansas (State v. Barclay). That suit was laughed out of the Kansas Supreme Court and the prosecutors reprimanded for wasting the court’s time. If pastors are still permitted to discriminate based on race a half-century after the Civil Rights Movement, there is no chance the courts will suddenly require pastors to ignore a couple’s sexual orientation.

It is a long-standing matter of law that non-discrimination statutes do not apply to clergy or churches. The last time a church employment discrimination case made it to the U.S. Supreme Court the justices ruled 9-0 in favor of the church. This is not a debated, gray, or partisan area of constitutional law. No one is going to force your church or pastor to participate in same-sex unions. Period.

To show you how irrational this line of arguing has become, consider the editorial by Ben Boychuk, associate editor of the Manhattan Institute’s City Journal. Boychuk said the protections churches and clergy currently have under the First Amendment “will go away” if “enough elected officials feel enough public pressure.” Boychuk’s language is revealing. He’s admitting that churches and clergy are currently protected under the Constitution which supersedes any state law making the Mississippi law both unnecessary and redundant. His argument, instead, is that the religious rights of clergy are under threat and could “go away.” He goes on:

“But what’s to prevent some future government bureaucracy from ordering a church or a minister to marry a same-sex couple or face fines and imprisonment? A judge may find a ‘compelling state interest’ to do so. And a Supreme Court with more justices inclined to think like Elena Kagan or Ruth Bader Ginsburg rather than Antonin Scalia or Clarence Thomas may very well agree.”

That sounds very scary, but Boychuk fails to include any evidence. What’s remarkable, and what Boychuk and other defenders of the Religious Freedom bills often elect not to mention, is that both Kagen and Ginsburg have already ruled on the exemption of churches and clergy from non-discrimination laws in 2012 (Hosanna-Tabor Church v. Equal Employment Opportunity Commission) and they sided with the conservatives. The ruling was unanimous. It is very likely that if the court had more justices like Kagen and Ginsburg, religious liberty would be perfectly safe. Of course, that’s a message that doesn’t sell in a red state during an election year.

Saying we need state laws to protect clergy from being forced to perform same-sex marriages is like saying we need state laws to protect us from a zombie apocalypse. It is based solely on the irrational fears of those who consume too much cable television.

I’ll be back later this week with my second reason for opposing the laws passed in Mississippi and North Carolina.




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13 Comments

  • April 19, 2016

    Richard Evans

    Thank you for clarifying this issue Skye, its tough to wade through the sound bites these days.

  • […] Part 2. Why religious liberty bills are bad for Christians […]

  • April 19, 2016

    Bill

    Agree with much of your underlying sentiments, but you really should read Hosana-Tabor and all of the “ministerial exception” cases before you come out this strongly using it as a basis for your conclusions – especially in light of Obergefell. You are right that we are nowhere near the courts forcing a minister to conduct a marriage that he finds disagreeable – but we are not so far removed from a state removing said preacher’s right to conduct marriage under the power of the state if he is unwilling to conduct all marriage condoned by the state. See the slope?

    We should not make people feel like they are foolish for fearing the State on these issues.

    • April 20, 2016

      Richard Vander Zwaag

      I agree with you , Bill . In light of cultural trends and SCOTUS response , I am afraid nothing is safe anymore . What was right is now wrong seems to be the wave of the future .

  • April 19, 2016

    Chris F

    Thanks for taking the time to get your thoughts down and for concrete information about how previous marriage discrimination cases have gone. When our church was looking at the best way to protect ourselves from potential suit over allowing use of our church building I didn’t come across it. Just a number of instances where cases weren’t filed, one where a non-religious tax exemption was lost, and the Bob Jones University case. What I found is that, looking at history, a church doesn’t have reason to be concerned but a Christian college may have some cause for concern.

    One thing that I would like your thoughts on is what role laws like this may have in preventing state action against churches that opt to not perform same-sex marriages. I have no doubt that it wouldn’t stand up in court but there’s gossip about Vermont trying to take away tax exempt status for churches based on this. I understand that it’s kind of a moot point because a state that would pass a religious freedom law is highly unlikely to discriminate against churches. However, it is interesting to ponder if a form of religious freedom law would be appropriate if action against a religious group based on their belief, and practice following from that belief, appears likely in order to save the group from needing to go through a suit.

  • April 19, 2016

    Joshua Noel

    Excellent reasoning! I couldn’t agree more. Just like when we witness to people, we must build relationships to earn the right to speak into their situations, I believe we must love people who are in the LGBT community enough that we earn the right to have real conversations with that community. Passing bills as a response to this movement will never make any changes in our culture but real love, real relationships, and real conversations will.

  • April 20, 2016

    Jeff

    I’m not so much concerned about the clergy but rather parishioners being targeted for belonging to a church that refuses to tow the line. There are already threats circulating to that effect in Washington state.

  • April 20, 2016

    Perry

  • April 20, 2016

    Perry

    What about safety for women and children in restrooms?
    Just google “Male attack in restroom” for a long list of examples.
    Now they are trying to make it so you can’t complain if a man goes into a women’s restroom?
    Is it right to disrespect women in order to respect transgenders?
    I remember when we applauded the little boy brave enough to say the emperor has no clothes. Now he’s called an arrogant judgmental bigot..

  • April 20, 2016

    alison

    You are naive if you don’t think Christian pastors/churches will be forced–sooner rather than later–to perform these marriage ceremonies.

    • April 20, 2016

      Perry

      According to one of the prominent LGBT activists the goal is not to get marriage extended to the LGBT community.. but to redefine the family and destroy marriage altogether.
      In the video below Gessen states
      “Gay marriage is a lie.”
      “Fighting for gay marriage generally involves lying about what we’re going to do with marriage when we get there.”
      “It’s a no-brainer that the institution of marriage should not exist.” (This statement is met with very loud applause.)
      She also talks about redefining the traditional family. This may be important to her because she has “three children with five parents”:
      “I don’t see why they (her children) shouldn’t have five parents legally. I don’t see why we should choose two of those parents and make them a sanctioned couple.”

      You can hear it in her own words here.
      This is the entire clip.. The most interesting part starts about 6 minutes in.
      https://youtu.be/n9M0xcs2Vw4

  • […] Why the “Religious Freedom” Bills Are Bad for Christians (Part I) […]

  • […] by Timothy C. Morgan “Why the Religious Freedom Bills are Bad for Christians” by Skye Jethani Part 1: The religious freedoms of clergy and churches are not at risk. Part 2: The latest religious freedom bills do not pass the Golden Rule test. Part 3: By linking […]