Shortly before he exited the 2020 Democratic presidential field, former Texas Rep. Beto O’Rourke asserted that churches and other faith-based organizations should lose their tax-exempt status if they oppose same-sex “marriage.”
His remark raised concerns for many about what this election could mean for people of faith and their freedoms, especially in light of the subsequent disregard his fellow candidates have shown for religious freedom when it comes to issues of sexual orientation and gender identity.
“There can be no reward, no benefit, no tax break for anyone, or any institution, any organization in America, that denies the full human rights and the full civil rights of every single one of us,” O’Rourke commented at CNN’s “Equality in America” town hall last month.
He later walked back his initial remarks by stating that “when you are providing services in the public sphere, say, higher education, or health care, or adoption services, and you discriminate or deny equal treatment under the law based on someone’s skin color or ethnicity or gender or sexual orientation, then we have a problem.”
On the same program, U.S. Sen. Elizabeth Warren, D-Mass., and South Bend, Indiana, Mayor Pete Buttigieg were quick to say that they did not agree with stripping churches of their tax-exempt status over their beliefs on marriage. However, both candidates have essentially agreed with O’Rourke’s prior statement regarding services in the public sphere and have expressed similarly extreme views on religious freedom.
When asked by an audience member about what she would say to someone who believes that marriage should only be between one man and one woman, Warren replied that she would assume a man holds that belief and she would tell him, “Then just marry one woman. I’m cool with that,’” adding that was “assuming you can find one.”
Her attack on that belief as being a fringe view — and one likely to be held only by a man — is out of line with recent polls by Pew and Gallup, which found that more than a third of Americans continue to believe in marriage as between one man and one woman. According to the Pew poll, there is no wide disparity in views between women and men on the issue, as 66% of women and 57% of men expressed support for same-sex “marriage.” And former President Barack Obama would have been among those Warren would tell to “just marry one woman” as recently as 2008, when he said he was opposed to same-sex “marriage,” although he later flipped on the issue.
In relation to Warren’s comments about individuals who support traditional marriage, Alliance Defending Freedom (ADF) senior counsel Greg Baylor reflected that “we’ve come a long way from what Justice Anthony Kennedy said in his Obergefell majority opinion: that there are reasonable people on both sides of this issue, and there’s no reason to disrespect those who hold to the true understanding of marriage.”
“I think we’ve come a long way from the day when President Obama changed his mind about same-sex marriage [and] cautioned those with whom he now agreed not to disparage those who held the views that he till recently held himself,” Baylor added.
Emilie Kao, the director of the DeVos Center for Religion and Civil Society at the Heritage Foundation, told the Register that another comment that “stood out” to her from Warren at the televised town hall was her remark that she would take “the California ‘Sexual Orientation and Gender Identity’ curriculum and make that a nationwide curriculum.”
Kao called that proposal “very concerning,” arguing that “the federal government really should not be the primary teachers to children about sexual matters — that should be the right of parents — and the California curriculum has met with a tremendous amount of opposition across the board from religious and non-religious parents in California because it’s teaching kids about things like transgender ideology and same-sex marriage at very young ages.”
Buttigieg and RFRA
Buttigieg, an Episcopalian who is in a same-sex union, argued during the CNN town hall that when religion is used “as an excuse” to harm other people, “it makes God smaller” and is “an insult to faith.”
He elaborated this past Sunday on those remarks, when asked “how he would approach religious freedom broadly.”
“The touchstone has to be the idea that religious freedom, like any other freedom, is constrained when it becomes a rationale for doing harm,” he argued. “The original doctrines and federal legislative law go back to, I think, substances in rituals among Native Americans” and what that “says about freedom to undertake a religious practice.”
The law that Buttigieg appears to be citing is the 1990 Employment Division, Department of Human Resources of Oregon v. Smith decision in which the Supreme Court decided that two Native Americans who were dismissed from their jobs for smoking peyote as part of a religious ceremony were not exempted from Oregon state law banning the use of peyote, a hallucinogen. That case held that as long as a law is “neutral and generally applicable” — meaning it applies equally to everyone regardless of his or her particular faith — then it is not a violation of the First Amendment.
In response to cases like Smith, the House and Senate, led by Sen. Charles Schumer, D-N.Y., and former Sen. Edward Kennedy, D-Mass., passed the Religious Freedom Restoration Act in 1993, which then-President Bill Clinton signed into law. The Religious Freedom Restoration Act limits the government’s ability to “substantially burden a person’s exercise of religion” to cases where the government can demonstrate that the burden is “the least restrictive means of furthering” a “compelling government interest.”
Buttigieg not only seemed to be opposing that principle behind RFRA but went on to say that when religious freedom is cited to allow “hiring discrimination,” the issue gets “tough and sticky.”
He concluded that the principle of “constraining” religious freedom when it is allegedly used to do harm “would move us further than we’ve moved so far, in terms of enforcing, for example, anti-discrimination expectations, even on private organizations, and I think that bar goes even higher when we’re talking about anybody seeking federal funds.”
Luke Goodrich, senior counsel at Becket, a law firm that specializes in issues of religious freedom, said that Buttigieg’s remarks could potentially contradict Supreme Court precedent.
“When it comes to employment in particular, there are two Supreme Court decisions, both of which were unanimous, and both upheld the right of religious organizations to hire people who are fully committed to their mission,” Goodrich pointed out, “and upheld the idea that not only is that not discriminatory, it’s a fundamental constitutional right.”
Goodrich was referring to the 2012 Supreme Court decision in Hosanna-Tabor v. EEOC and the 1987 Corp. of Presiding Bishop v. Amos. In Hosanna Tabor, the high court unanimously held that the federal government cannot intervene in the hiring or firing of religious ministers. In Amos, the court ruled that faith-based groups could hire for non-religious positions based on religious beliefs.
Goodrich added that Buttigieg and the other Democratic candidates keep “their comments at a pretty high level of generality,” but “if what they mean by every right is limited, and you can’t use religious freedom to do harm, is that the government can require religious organizations to hire people who reject tenets of their religious mission, then they’re advocating something that the Supreme Court has ruled clearly unconstitutional unanimously.”
When asked to clarify, a representative from Buttigieg’s campaign told Catholic News Agency Monday that “his words speak for themselves.”
The Equality Act
Warren and Buttigieg are not alone in dismissing concerns and past legal precedent on the issue of religious freedom.
Former Vice President Joseph Biden, a Catholic who supports same-sex “marriage” in defiance of Church teaching on the matter, commented at the CNN event last month that “the American people are better than we give them credit for, but we allow the homophobes to be able to control the agenda,” in reference to someone potentially losing their job over their sexual orientation. He did not clarify who he thought the “homophobes” were.
Biden and his fellow candidate Sen. Bernie Sanders, I-Vt., voted for RFRA in 1993, although their views on religious freedom appear to have evolved dramatically based on their support for the “Equality Act,” proposed federal legislation that would largely nullify RFRA by removing the ability under RFRA to cite religious freedom as a defense against discrimination claims.
In June, Biden went so far as to declare the Equality Act his No. 1 legislative priority as president. Buttigieg and U.S. Sens. Kamala Harris, D-Calif., Warren and Sanders have also named the legislation a “top priority.” U.S. Sens. Amy Klobuchar, D-Minn., and Cory Booker, D-N.J., have both backed the legislation, as well.
Kao outlined what would occur if the Equality Act that all the 2020 Democratic front-runners have endorsed were implemented.
“The Equality Act is going to punish people who don’t conform to the new sexual ideology, and it’s not only going to punish religious people — it’s also going to lead to the endangerment of women and girls in private facilities that will now be open to any man who identifies as a woman,” she said. “It will lead to the destruction of women’s sports and again to the erosion of parental rights of parents of children with gender dysphoria.”
She added that the legislation would create new legal liability for faith-based organizations like the Little Sisters of the Poor if they don’t cover sex-reassignment hormones and surgeries in their insurance plans.
“Catholic adoption is on the front line of being targeted by these SOGI [Sexual Orientation and Gender Identity] laws in the states, and the Equality Act would impose a nationwide SOGI law and potentially lead to a shuttering of hundreds of faith-based adoption agencies and foster care,” she pointed out.
‘Frontal Assault’ on Religious Freedom
Baylor called the Equality Act “the biggest frontal assault on religious freedom perhaps in our nation’s history.”
“Not only does it violate the religious freedom of many,” he said, “it explicitly refuses to provide the sort of religious exemptions that you usually see in laws banning SOGI discrimination. On top of that, it actually partially repeals the Religious Freedom Restoration Act, under which individuals and organizations would at least have a chance to have their day in court.”
Baylor said the legislation would undermine “the progress that women have made in the athletic arena due to Title IX,” as it “would require schools and other sponsors of athletics to allow boys who identify as girls and men who identify as women to participate in female athletics.”
He said, “We've seen this phenomenon begin to happen already: Certain states like Connecticut have on their own created something like the Equality Act and have created a lot of unfairness for women and girls who are participating in sports.”
He added that the legislation generally would “undermine the privacy and safety of women,” as “it would require spaces that are set aside for women for reasons of privacy and safety to be opened to men who identify as women.”
Baylor cited one case where ADF is representing “a women’s shelter in Alaska that was sued under a local version of the Equality Act when it declined to allow a biological male who identifies as female to stay in an overnight shelter for abused women.”
Goodrich pointed out the newness of the Equality Act, saying that it “goes far beyond what even the most aggressive LGBTQ-rights organizations were advocating for as late as 2014.” He explained that before 2014, their main piece of proposed legislation was the Employment Nondiscrimination Act (ENDA), which “would’ve extended Title VII, the main federal nondiscrimination law, to cover sexual orientation and gender identity.”
He noted that ENDA “always had a broad religious exemption, saying if you are a religious organization, the ban on discrimination based on sexual orientation and gender identity doesn’t apply to you; and that was the consensus position of Democrats and of LGBTQ-rights organizations throughout the 90s until 2014.”
“In 2014, some of the prominent LGBTQ-rights organizations withdrew their support for ENDA because they wanted to eliminate the religious exemption, and they wanted legislation that would go beyond employment,” he explained, “so that’s what we have in the Equality Act.”
“The candidates who support the Equality Act are going far beyond what even the most aggressive LGBTQ-rights organizations wanted until 2014,” Goodrich concluded, “and the fact that the Equality Act doesn’t include protections for religious organizations makes it a serious threat to religious liberty and seriously troubling.”
Lauretta Brown is a Washington-based Register staff writer.