Military ‘Conscience Clause’ Reveals ‘Religious Liberty’ Strategy to Undermine Equality

Our guest bloggers are Crosby Burns, Research Associate, and Katie Miller, Special Assistant for LGBT Progress.

Beyond the so-called “fiscal cliff,” Congress has a number of other important items on its agenda before packing up for the holidays. This includes voting on the National Defense Authorization Act, a critical piece of legislation that outlines the military budget and approves defense expenditures for Fiscal Year 2014. With respect to this bill, most members of Congress have rightly focused on funding the programs and initiatives that preserve our security and care for our troops. However, instead of working to pass the single most important bill to our military, anti-gay Republicans have spent the year playing politics with our national security by inserting irrelevant amendments in the defense bill that are squarely aimed at rolling back the military’s strides toward LGBT equality following “Don’t Ask, Don’t Tell” repeal.

Earlier this year, Congressman Todd “Legitimate Rape” Akin (R-MO) succeeded in including a harmful and anti-gay “conscious clause” in the House version of the defense bill. If the Akin Provision were to be included in the NDAA in its entirety, it would give service members the legal right to discriminate, harass, and intimidate LGB troops. And in doing so it would pose a danger to troops’ health and safety, it would undermine unit cohesion, and — as the White House has stated — it would be a threat to the good order and discipline necessary for military effectiveness. Luckily, the Senate version of the bill did not include this harmful provision.

As the House and Senate began to reconcile the differences between the two bills, Congressman Akin and other Republicans, including Rep. Buck McKeon (R-CA) and Sen. John McCain (R-AZ), have pushed to include Akin’s “license to discriminate” provision in the final version. McCain was, of course, a fierce opponent of DADT repeal. McKeon said that he’d rather see Congress fail to pass a defense bill for the first time in a half century than pass a bill that failed into include anti-gay amendments.


In the reconciled version of the Pentagon bill, Congress has sadly retained the Akin amendment, though not in its entirety. What remains is a watered down version which reaffirms the right of troops and chaplains to hold anti-gay views as long as they are not actively discriminating against LGB service members. In other words, the amended Akin provision simply reiterates existing religious liberty protections that service members and chaplains already enjoy.

While Congressman Akin’s amendment did not survive as originally written, let’s be clear. Congressman Akin’s original “conscious clause” provision was not about protecting the religious liberty of service members or chaplains. It is instead about giving people in the military a legal right to discriminate, harass, and intimidate service members based on their sexual orientation.

We’ve seen this before. In the states, conservative groups are vociferously calling for a weakening of nondiscrimination, relationship recognition, adoption, and other laws all in the name of “religious liberty.” When a restaurant owner refuses to serve a patron because he or she is old, black, or Christian, we would never call that an affront to religious freedom. We would call it discrimination, plain and simple. The same is true for gay individuals as well.

In this way, anti-gay initiatives are increasingly being cloaked in arguments about “religious freedom.” That is because opponents of LGBT equality have seen the polls and know that strong majorities of Americans are now accepting of LGBT people. By working to insert “conscious clauses” into laws, they are hoping to slow down the inevitable march toward fairness for all. Going into 2013, advocates must be on the lookout for these attempts to undermine LGBT equality, and call them out for what they are: discriminatory, unfair, and wrong.