Pro-Discrimination Law Jeopardizes Religious Freedom

West Virginia’s Legislature saw a version of the Indiana gay rights/religious freedom debate this year. Fortunately for Mountaineers, a public hearing and public outcry defeated the Republicans’ pro-discrimination bill on the House floor. After the public hearing, Delegates Arvon and Howell let their law die in committee. Not so in Indiana, where an entrenched right-wing legislature passed the legislation.

The outcry in Indiana came after-the-fact, but has been even more impressive and brought Hoosiers national attention. Businesses, citizens, the NCAA and others strongly denounced the law. The Republican governor began talking about “clarifying” the law, a sure sign of a pol who misjudged his electorate and wants a way out.

In the meantime though, apologists for these laws have to show up and defend the pro-discrimination, gay-baiting laws like West Virginia’s HB 2881. They say “the law is just about religious freedom!” Because nothing could be more dangerous for our First Amendment rights, I’d like to address that argument and the danger it holds to our cherished religious freedom.

For many years, anti-gay prejudice reliably won votes. In some places, it still does. Even as mainstream America has largely embraced our fellows citizens’ quest for equal rights, in sports, in the business world, and in the courtroom, strong prejudice against being gay, lesbian or transgendered still exists. What is unfortunate is that those votes are still being courted, even by leaders who should, and actually do, know better.

Therein lies the problem. It would be one thing for Republicans to pitch anti-gay prejudice to us on merit, as was done not long ago: “gay behavior is deviant,” “gay marriage will hurt traditional marriage,” or “gay parents hurt children,” we used to hear all of that. But once legislatures and courts began approving gay marriage, these arguments ran into a problem: nothing bad happened. When the merits arguments were tested in court, highly conservative judges found them utterly lacking in evidence.

But those votes were still out there. And the (to me, self-styled) conservatives needed a new argument to go after them. So they picked religious freedom. The idea became to wrap up something that had become unpalatable in mainstream America — anti-gay prejudice — in something people love — the First Amendment. But it’s not a coincidence that these laws coincided neatly with the shift in thinking on gay rights and marriage in this country. They’ve gone hand-in-hand.

And that is the real harm being done now. “States Rights” happens to be an important political doctrine in our country — if we are to remain a Republic. But (quite correctly) we hear the phrase today as code for racism and Jim Crow. We hear it that way because when racism became unpalatable in this country, people looked for something people liked to wrap it up in. “States Rights” is what they picked, and it will be a long time before the doctrine recovers from that abuse. Gun rights face a similar danger — that comes from those who insist that any common-sense regulation of firearms somehow violates the Second Amendment.

The Indiana law, and its West Virginia counterpart reflect the same gambit. Few rights, if any, are more precious than religious freedom in the United States. Frankly, I’ll be damned if anyone is going to make “religious freedom” code for a right to discriminate in places of public accommodation, employment, schooling or anywhere outside a church, temple, mosque or other place of worship. Freedom of worship is freedom of worship. Let me give you some reasons why.

First of all, equal rights for gay Americans has and will continue to win. If that win really does abrogate religious freedom, then religious freedom will lose and there is no reason for that to be the case. We don’t allow religious discrimination in employment or public accommodations in America. We likewise will not tolerate discrimination based on sex, race or orientation. These are not defeats for religious freedoms, they are its victories. If anyone were to successfully lash religious freedom to racism or sex discrimination, it could easily sink. Since we cannot let that happen, the argument that equal rights for gay Americans violates religious freedom must fail.

Second, the Indiana and West Virginia laws were both a fraud — even on the anti-gay voters themselves. West Virginia Republicans actually named their law the “West Virginia Interstate Commerce Improvement Act.” Even conservative West Virginia journalists derided that title. West Virginia’s law would likely have been held unconstitutional, since the Supreme Court has indicated state laws that abrogate specific anti-discrimination laws violate the Equal Protection clause. So in reality, these laws serve no one — they whip up anger, fear, and hatred while delivering only embarrassment, with no real progress made for anyone.

Third, neither West Virginia, nor America, needs this anymore, if we ever did. We need a revitalized middle class. We need a raise for low-wage workers, and rising wages across the board. We need to end the stranglehold that organized corporate money has on our politics.  We don’t need a fight amongst ourselves over the basic right to equal treatment outside our places of worship.

Remember what happened to heterosexuals in states that voted for marriage equality and nondiscrimination: nothing. The Republican bills seeking to inflame the issue distract us from policies that affect the lives we lead and the future we could have. We should reject these bills, firmly recognize the equal rights of all, amend our anti-discrimination statue to include orientation, agree to live and let live, and get on with what really makes a difference in our standards of living.