Following the repeal of “don’t ask, don’t tell” in late 2010 and the successful transition to open service for gay, lesbian, and bisexual service members in 2011, many assumed that enshrined discrimination against LGBT people was on its way out.
But some opponents of LGBT equality in Congress have refused to give up the fight. Now that they could no longer keep lesbians, gay men, and bisexual people from serving openly in the military, they have shifted gears. What is their new strategy? To misuse religious liberty as a license to discriminate.
Religious liberty is one of our nation’s most cherished values, and something that the American Civil Liberties Union has fought to safeguard since our founding nearly a century ago. It guarantees us the freedom to hold any belief we choose and the right to act on our religious beliefs — but it does not allow us to harm or discriminate against others.
We’ve seen this play out over the past several years during the annual debate on the defense bill — known as the National Defense Authorization Act — in Congress. Those most opposed to DADT repeal and open service have sought to authorize discrimination against certain service members based on their sexual orientation under the guise of religious freedom. Last year then-representative Todd Akin, whose remarks that pregnancy cannot result from a “legitimate rape” became infamous during the 2012 election campaign, successfully added an amendment that required accommodation of all beliefs of members of the armed forces “concerning the appropriate and inappropriate expression of human sexuality,” which could have required that the military turn a blind eye to harassment and discrimination.
Thankfully, this direct attack on open service was not included in the final version of the defense bill that was sent to President Obama for his signature. And while Akin is no longer in Congress, these efforts to enshrine discrimination in the military have a new champion in Rep. Tim Huelskamp and the misnamed Military Religious Freedom Protection Act, which would give a green light to discriminate against lesbian, gay, and bisexual service members.
These anti-LGBT attacks are a naked attempt to give license to discrimination. These efforts are part of a broader trend that opponents of LGBT equality are employing with increasing frequency. As LGBT people gain greater equality under the law — at the local, state, and, federal levels — opponents argue that because of their religious beliefs, they need to be given special authorization to break the law and discriminate. For example, some business owners have refused to serve same-sex couples who want to buy flowers or a cake to celebrate their relationships. These businesses claim they should not have to serve gay couples because they have a religious objection to allowing same-sex couples to marry or form civil unions. Likewise, we are seeing a renewed push to expand religious exemptions to laws designed to end discrimination and ensure access to health care.
It is for this reason that the ACLU as well as a number of LGBT legal organizations including Lambda Legal, the National Center for Lesbian Rights, and the Transgender Law Center expressed serious concerns about the sweeping scope of the religious exemption in the Employment Non-Discrimination Act when the legislation was reintroduced in Congress last month. Given that only 16 states have workplace nondiscrimination laws that are fully inclusive of LGBT people, the need for ENDA and the importance of it to LGBT people across the country is without question, and we continue to fight for its passage.
However, ENDA’s current sweeping, unprecedented exemption for religiously affiliated organizations — far beyond churches, synagogues, and mosques — could provide a blank check to engage in employment discrimination against LGBT people, potentially allowing, for example, a religiously affiliated hospital to fire a transgender doctor or a religiously affiliated university to terminate a gay groundskeeper. The exemption gives a stamp of legitimacy to LGBT discrimination that our civil rights laws have never given to discrimination based on an individual's race, sex, national origin, age, or disability. This is not acceptable, and ENDA’s religious exemption must be narrowed.
Now is the time for the LGBT community to make clear that contorting religious liberty into a right to discriminate and harm is incompatible with basic fairness and equality under the law. Today, discrimination against individuals based on their race, sex, national origin, age, or disability is almost universally seen as unacceptable. We did not arrive at this point in a vacuum. This discrimination is seen as unacceptable because the American people, our elected leaders, and the courts have made it so. Now, at this critical and defining moment in our nation’s history, is the time to do the same with discrimination based on sexual orientation and gender identity.
IAN THOMPSON is a legislative representative on issues related to LGBT rights in the ACLU's Washington legislative office and can be reached on Twitter @iantDC.