PHOENIX — The constitutional right to religious freedom is increasingly colliding with federal, state and local laws and ordinances that accommodate sexual minorities who claim a vague but wide-reaching right to be treated with dignity or to be made “welcome.”
One of the most recent expressions of this clash of rights occurred Feb. 26, when the Phoenix City Council expanded its human-rights code to protect homosexuals and transgendered people from discrimination in the workplace and when renting accommodations.
Christian critics, including the Diocese of Phoenix, fear the code can be used to force churches and private businesses to hire homosexuals, to let transsexuals use either the men’s or women’s washrooms and to justify punitive fines against businesses that make homosexuals or transgendereds feel “unwelcome.”
The diocese joined with the Center for Arizona Policy, a conservative Protestant group, in resisting the expanded ordinance, which came to light only a few weeks before the Feb. 26 vote.
On Feb. 25, the diocese released a press statement calling on the city council “to acknowledge and protect the conscience rights of all people to live and act according to their faith and values.”
While the statement affirmed the diocese’s support for any “sincere and well-intentioned effort to protect the human dignity of all people,” it said the ordinance was “so broadly worded that it risks trampling the religious liberties of Phoenix citizens for doing nothing more than living their faith.”
Warned the diocesan press statement, “As written, the proposed ordinance could be interpreted as forcing people to actively endorse, support and promote actions and behaviors that violate their own personal, deeply held religious beliefs. … Such a result would clearly run afoul of the time-honored tradition of religious freedom on which our nation was founded.”
“It appeared it was rushed,” diocesan spokesman Robert DeFrancesco said after the Phoenix City Council passed the ordinance by a 5-3 vote. “We would have hoped to have more of a say in the democratic process.”
While religious institutions such as churches, schools and hospitals appear to be exempted from the expanded ordinance, said DeFrancesco, protection for individual Catholics and other Christians “remains a concern for us.”
However, Aaron Baer of the Center for Arizona Policy said the religious exemption is as broadly and badly worded as the rest of the expanded ordinance.
“We were given plenty of assurances it wouldn’t be used against religious institutions,” he said. “But it would have been easy enough to write these [assurances] into the ordinance.”
Baer warned that, as it stands, the religious exemption could be interpreted to apply only to specifically religious jobs, such as pastors, hospital chaplains or religion teachers.
The ordinance also presents a big problem for business operators, according to Baer. “Say you had a crucifix hanging on the wall in your business. A gay person who comes in says that makes him feel unwelcome because the Catholic Church condemns homosexual activity. This ordinance prohibits making anyone feel unwelcome.”
In effect, says Baer, “the ordinance criminalizes speech.”
Councilman Tom Simplot, who is openly homosexual, said during debate over the expanded ordinance that arguments about its damaging effects were outdated and that Phoenix was merely following the lead of other jurisdictions, The Arizona Republic reported.
“With all due respect, those may have been valid arguments back in 1977,” Simplot said. “They’re not valid today.”
Background information provided with the Phoenix bylaw named more than 160 U.S. cities and counties that have added gender identity to their human-rights codes since 1999.
But Kevin Theriot of the Alliance Defending Freedom, a conservative legal advocacy group, told the Register that Phoenix’s expanded code “goes further than any I’ve seen. It has profound implications, especially for business people. It prohibits any speech that makes people feel unwelcome.”
Freedom From Disapproval?
And for those who think these fears are far-fetched, Max Franck, director of the Witherspoon Institute’s Simon Center on Religion and the Constitution, pointed them to the Elane Photography case, soon to be considered by the New Mexico Supreme Court.
In 2008, the state’s human-rights commission ordered Elaine and Jon Huguenin, the owners of the business, to pay $7,000 in damages to a lesbian couple whose “commitment ceremony” they had refused to photograph because they could not as Christians celebrate homosexuality.
Franck also cited a New Jersey church that lost its property-tax exemption for refusing to let its hall be used for a same-sex “marriage” ceremony and an Oregon baker prosecuted for refusing to bake a cake for a similar occasion.
In all these cases, noted Franck, “there were other places to go: Other bakers to bake; other photographers to hire. But instead of respecting the religious convictions of those involved, they decided to punish them.” He said what was being advanced by human-rights commissions is “the right of sexual minorities not to be disapproved of.”
Both Theriot and Franck believe free speech is being better protected by the courts than is religious freedom. As evidence, they cite the Supreme Court’s Westboro Baptist decision that affirmed the tiny, independent congregation’s right to picket the funerals of American service personnel, claiming their deaths were signs of God’s wrath.
“It’s hard to imagine something more offensive,” said Theriot, “yet the Supreme Court upheld their right to say it.”
Commented Franck, “It seems if what you say is totally extreme, like at Westboro Baptist, your right to free speech is protected. Ironically, what isn’t protected is your right as an ordinary practicing Christian or Jew or Muslim to operate your business in a way that is consistent with your faith.”
Steve Weatherbe writes from Victoria, British Columbia.