Last week was not a good one for Team Anti-Gay. The Supreme Court struck the unconstitutional Defense of Marriage Act, and the nation’s largest state resumed marriages for same-sex couples. Nor is the future likely to be any better for opponents of equality. As conservative Justice Antonin Scalia complains in dissent, the Court’s opinion striking DOMA is riddled with language that can be used to attack anti-gay state laws. Moreover, two cases squarely presenting the issue of whether states must provide gay couples with the equal protection of the law are now ripe for review by the left-leaning United States Court of Appeals for the Ninth Circuit. The question of full, nationwide marriage equality could be before the justices in as little as two years.
And even if a majority of the Court does reject this final push for marriage equality, time is simply not on the side of discrimination. Nearly 7 in 10 Americans under 40 approve of the Supreme Court’s recent pro-marriage decision. The only age cohort where a majority oppose that decision are people over age 65. In twenty years, supporters of equality will run the country from top to bottom, and most opponents will be dead.
Religious conservatives, however, still have one more card to play in their efforts to deny equal rights to LGBT Americans. As the socially conservative writer Ross Douthat suggested shortly after the Court struck DOMA, the best way to continue to limit the rights of gay people is to “build in as many protections for religious liberty as possible along the way.”
It’s clear that anti-gay leaders are already executing this contingency plan. Heritage Foundation President Jim DeMint claimed on Tuesday that marriage equality “means trampling First Amendment religious liberty protections along the way.” At least fifteen anti-gay individuals, ranging from wedding cake bakers to bed and breakfast owners to t-shirt makers, have claimed the right to discriminate against gay people — often in direct violation of the law — with many citing their religious beliefs as justification. The conservative U.S. Conference of Catholic Bishops claimed in a brief they filed in the Supreme Court that treating anti-gay discrimination permissively “protects the religious liberty of those employers with a religious objection to providing” health coverage to same-sex partners.
The Bishops’ brief may be the biggest window into how religious conservatives plan to construct a wall around their own right to discriminate. At the same time that the Bishops urged the justices to protect a special right to deny health care to gay people, numerous employers — with the enthusiastic backing of the Bishops themselves — are litigating the question of whether their religious objections to birth control give them the right to ignore a federal rule requiring them to include it in their employees’ health plans. Last week, a federal appeals court embraced a particularly aggressive reading of religious liberty that not only held that for profit companies may refuse to comply with the birth control rule, it also included language suggesting that a religious employer could refuse to comply with anti-discrimination law if they believed discrimination was compelled by their faith.
This, simply put, is the social conservative end game. They are not going to succeed in blocking marriage equality. But if they can exempt the very people who are most likely to engage in invidious discrimination against gay people from laws prohibiting such discrimination, then they can suck the life out of many pro-gay laws. Their exaggerated view of “religious liberty” can no more be squared with equality than it could when Bob Jones University claimed a similar religious right to engage in race discrimination.
Ultimately, social conservatives’ efforts to expand religious rights to the point where they devour other essential freedoms such as the right to be free from discrimination are likely to backfire. In the 1980s, the Supreme Court developed a workable framework for religious liberty. Such liberty is robust, but it does not include the right to engage in invidious discrimination, and it does not give businesses a right to “impose the employer’s religious faith on the employees.” Then, in 1990, Justice Scalia blew up this framework with his majority opinion in Employment Div. v. Smith. Smith shrunk religious liberty far more than many Americans were willing to tolerate; Congress passed the Religious Freedom Restoration Act of 1993 (RFRA) to restore the religious liberties lost in Smith almost unanimously, and it was signed into law by President Clinton.
Now, however, religious conservatives want to go far beyond the 1980s framework that RFRA restored. They claim both the right to defy anti-discrimination law and the right to ignore the Supreme Court’s decision in United States v. Lee, which held that “[w]hen followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity.” Religious liberties are rightfully enshrined in our Constitution, but they have not been understood as a sweeping right to deny equally important liberties to others. If religious conservatives insist upon the right to do so, the consensus that led to RFRA’s passage is likely to break down, and people of faith could ultimately wind up with fewer protections than they enjoyed before a small number of religious conservatives decided to overreach.