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.