The conflict between Duck Dynasty reality TV stars and the A&E television network has received massive media coverage. It is, however, only one skirmish in a larger conflict between the right of believers to express their faith and the rights of the LGBT (lesbian, gay, bisexual and transgender) community not to be offended by that expression of faith.
In response to a number of cases in which courts ruled against small businesses run by persons who refused for religious reasons to participate in celebrations of same-sex relations, Rep. Raul Labrador, R-Idaho, has introduced the “Marriage and Religious Freedom Act” (H.R. 3133).
According to Rep. Labrador, “Our bill will ensure tolerance for individuals and organizations that affirm traditional marriage, protecting them from adverse federal action.”
The law would prohibit the federal government from discriminating in any way against “individuals and institutions that exercise religious or moral conscience regarding marriage as the union of one man and woman.” While this would not affect state laws, it would prevent the federal government from denying benefits, positions or exemption from taxation to persons who voice support for traditional marriage.
Archbishop Salvatore Cordileone of San Francisco and Archbishop William Lori of Baltimore support the act. According to Archbishop Cordileone, “It would prevent the federal government from discriminating against religious believers who hold to the principle that marriage is the union of one man and one woman. This is of fundamental importance, as increasingly such individuals and organizations are being targeted for discrimination by state governments — this must not spread to the federal government.”
A spokesman for the Human Rights Campaign — a homosexual-rights group — argued that there was no reason to believe that federal programs would discriminate against people based on their support of traditional marriage.
However, when sexual orientation was added to anti-discrimination laws, those opposed argued that such a change could have a negative effect on freedom of religion. Such concerns were brushed aside by the supporters of the change. When courts and legislatures redefined marriage to include same-sex couples, opponents pointed out that such a change could lead to discrimination against those who defend traditional marriage. It now appears these concerns were justified.
A photographer in New Mexico was fined $7,000 for refusing to photograph a same-sex ceremony. Her lawyer, Jordan Lorence of Alliance Defending Freedom, questioned the ruling: “Should the government force a videographer who is an animal-rights activist to create a video promoting hunting and taxidermy? Of course not; and neither should the government force this photographer to promote a message that violates her conscience.”
In another case, Barronelle Stutzman, a florist in Washington state, is being sued under anti-discrimination laws for refusing to provide flowers for the wedding of two male customers. She had sold flowers to them on other occasions, but she felt she couldn’t participate in their wedding.
Jack Phillips, owner of Masterpiece Cakeshop in Colorado, politely refused to create a wedding cake for a same-sex couple who were going to have a wedding ceremony in Massachusetts (such weddings are not legal in Colorado, where marriage is defined as between one man and one woman), followed by a reception in Colorado.
Judge Robert Spencer ruled that Phillips must bake wedding cakes for homosexual couples: “At first blush, it may seem reasonable that a private business should be able to refuse service to anyone it chooses. This view, however, fails to take into account the cost to society and the hurt caused to persons who are denied service simply because of who they are.”
Phillips, however, did not discriminate against the two men because of who “they are,” but because of the message they wanted him to send with his craftsmanship. Philips offered to sell them other baked goods or birthday cakes, just not a wedding cake. Phillips has been consistent in the defense of his faith. He has also refused to bake Halloween treats.
These rulings raise a number of questions: Does the government have the right to force an artist or craftsman to create whatever a potential client demands, even if it sends a message with which the creator disagrees? Do some people have a right not to have their feelings hurt? Are LGBT persons’ hurt feelings sufficient cause to deny other persons’ freedom of religion and creative speech?
Georgetown law professor Chai Feldblum, an openly lesbian Obama appointee to the Equal Employment Opportunity Commission, in a 55-page paper entitled “Moral Conflict and Liberty: Gay Rights and Religion,” argued that the conflict between homosexual rights and religion is a zero-sum game, and “society should come down on the side of protecting the liberty of LGBT people,” because if LGBT persons are denied service, they would experience an “intense and tangible hurt.”
According to homosexual activists, the hurt feelings of LGBT persons are sufficient cause to ignore the fundamental rights of people of faith. On the other hand, calling views of believers “bigotry,” “vile” or “hate” is considered to be acceptable.
Feldblum further argues that if a legislature “passed a LGBT equality law, with no exceptions for religious persons based on belief liberty,” then it would be “perfectly reasonable” to assume that the legislature intended to come down on the side of LGBT rights and against the rights of people of faith.
According to Feldblum’s reasoning, if explicit language acknowledging the right to freedom of religion and speech in these areas is not included in anti-discrimination legislation, then laws prohibiting discrimination against persons based of sexual orientation could be used to prosecute those who refuse to participate in celebrations of same-sex relationships. A number of judges have ruled accordingly.
The federal law proposed by Rep. Labrador is narrowly focused and would not apply to state prosecutions or the actions of businesses or institutions that discriminate against persons who express their belief in traditional marriage. Only a more sweeping federal law or legislation in individual states would protect freedom of religion and speech in this area.
Currently, there is a push to add “gender identity” and “gender expression” to anti-discrimination laws. This could further burden religious freedom, free speech and the right to privacy. At Evergreen College in Olympia, Wash., a man living as a woman used the women’s dressing room of the school’s pool, revealing to a high-school girls’ swim team using the same facility that he was most definitely not female. Following the school’s policy of non-discrimination against the transgendered, the offended girls were moved to another room.
The conflict between the patriarch of Duck Dynasty and A&E has ended with A&E backing down. The U.S. Congress and state legislatures may pass laws protecting freedom of religion and speech in defense of traditional marriage. Higher courts may eventually uphold the freedom of religion and speech of those who refuse to lend their talents to the celebration of same-sex relationships. However, even if defenders of traditional marriage win these battles, they may find themselves characterized not as people who have taken a principled stand for a sane social policy, but as having won the right to be ignorant, mean-spirited bigots.
The defenders of traditional marriage have to do more than defend their fundamental rights; they will have to demonstrate convincingly that restricting marriage to the union of one man and one woman is not only good for society in general, but also for children and for persons with same-sex attraction. While such arguments rarely receive media attention, the evidence is mounting up that children raised by same-sex couples fall behind in a number of areas and that same-sex relationships are more unstable and unfaithful. If the case is not made for defense of traditional marriage as good for all, the next generation will be lost.
Dale O’Leary is a freelance writer and lecturer
and is the author of
She currently resides in Florida.