Jay Bookman

Opinion columnist and blogger with The Atlanta Journal-Constitution, specializing in foreign relations, environmental and technology-related issues

Should anti-gay bigotry be legally protected as religious faith?

It's not about wedding cakes. It was never really about wedding cakes.

In Rowan County, Kentucky, County Clerk Kim Davis is refusing to perform her official duty of issuing marriage licenses because she would have to issue them to gay as well as to straight couples. Davis believes that if she signs a marriage license for a gay couple, as county clerks must do to make the license valid under Kentucky law, she has participated in sin.

Citing her First Amendment rights and claiming to be acting "on God's authority", Davis asked the U.S. Supreme Court to exempt her from issuing marriage licenses. She also cited Kentucky's so-called "religious freedom" law as protection. However, in a one-sentence ruling Monday, the nation's highest court refused to grant Davis an exemption from the duties that she agreed to perform.

I have a certain degree of sympathy for the dilemma in which Davis finds herself. She has in effect taken two oaths, one to uphold the law and the second to live by her personal religious beliefs. However, if that personal faith means that she cannot perform the duties of her job as a representative of the government, she should resign to resolve that conflict. She cannot use her government position to impose her own personal religious faith on others and deprive others of a constitutional right.

In Texas, former football star and broadcaster Craig James is suing Fox Sports for religious discrimination, charging that the company withdrew a job offer based on inflammatory, anti-gay statements made by James during an unsuccessful campaign for the U.S. Senate. As a Fox spokesman put it, “We just asked ourselves how Craig’s statements would play in our human resources department. He couldn’t say those things here.” Fox also noted that James had "abused a previous on-air position to further a personal agenda" when he used his broadcasting role to criticize his son's college football coach, suggesting that it did not want to risk him doing so again.

In his lawsuit, however, James contends that Fox Sports was required to hire him anyway, because those statements were an expression of his religious faith and thus protected under the First Amendment. "I will not let Fox Sports trample my religious liberty," James said. "Today, many people have lost their jobs because of their faith. Sadly, countless are afraid to let their bosses know they even have a faith. This is America, and I intend to make sure Fox Sports knows they aren’t above the law.”

And of course, in the city of Atlanta former Fire Chief Kelvin Cochran has filed suit in federal court claiming that he too is a victim of religious discrimination. Cochran was suspended and later fired after he distributed religious-themed but anti-gay material to people who worked for him. (The material, a book written by Cochran, condemns the "gay lifestyle" as akin to bestiality.) The city also contends that Cochran violated procedures and disobeyed orders in publishing and publicizing the book.

While the facts in each case differ, basically they come down to the same question. It has long been a compelling government interest to prohibit discrimination on the basis of sex, race, national origin or religious faith. In some parts of the country -- but not in most of Georgia -- it is also a compelling government interest to prohibit discrimination on the basis of sexual orientation.

Most corporations have come to a similar conclusion, believing that expressions of bias or prejudice -- even under the color of religion -- endanger the diverse, mutually respectful workforce that they believe essential to success.  For purposes of recruitment and good corporate citizenship, they also believe it important that the communities in which they operate also abide by that understanding.**

But what if people claim that their religion in effect requires them to discriminate against gay people by refusing to grant them marriage licenses, publicly criticizing their "lifestyle" as immoral, refusing to hire or rent to gay couples or denying gay married couples the same health insurance and other benefits available to straight couples? Certainly, those dissenters have every right to believe what they wish, but do they have the right to act upon those beliefs in the role of a county clerk, a high-profile sports broadcaster, or a fire chief with more than 1,000 subordinates?

It's worth noting that there's a substantial and not all-that-encouraging history of using religion as justification for bigotry. In the most obvious example, multiple biblical passages endorsing and regulating slavery were commonly used to justify the enslavement of millions of black Americans on religious grounds, with abolitionists condemned by many Southern clergy as anti-biblical and unChristian.

It's also much more recent. In 1967, when a Virginia judge ruled that a black woman and a white man had no right to get married, he did so by citing biblical verses that to his mind required that the races be kept separate and not allowed to mix. When Bob Jones Sr., founder of Bob Jones University in South Carolina, argued in 1960 in favor of segregation today, segregation forever, the evangelical leader did so on the basis of a passionate religious faith:

"If you are against segregation and against racial separation, then you are against God Almighty....," Jones thundered. "God is the author of segregation. God is the author of Jewish separation and Gentile separation and Japanese separation. God made of one blood all nations, but He also drew the boundary lines between races."

Many of the so-called "seg academies" created in that era by white families fleeing newly desegregated public schools also claimed a religious justification for their retreat, arguing that God “separated mankind into various nations and races,” and that such separation “should be preserved in the fear of the Lord.”

In the end, the American people and the American judicial system did not find that argument convincing.  By the 1970s, the federal government began to strip those segregated institutions of their tax-exempt status on the grounds that agencies that practiced discrimination did not qualify as "charitable" and that government should not in effect be subsidizing bigotry.

As the Supreme Court ruled in 1983 in upholding the denial of tax-exempt status to Bob Jones University:

"It would be wholly incompatible with the concepts underlying tax exemption to grant tax-exempt status to racially discriminatory private educational entities. Whatever may be the rationale for such private schools' policies, racial discrimination in education is contrary to public policy. ...The Government's fundamental, overriding interest in eradicating racial discrimination in education substantially outweighs whatever burden denial of tax benefits places on petitioners' exercise of their religious beliefs."

The logic in that ruling makes it clear where we are headed in this argument. It just may take some time to get there.


**That has inspired a backlash in some quarters, as expressed eloquently if archaically by state Sen. Josh McKoon of Columbus in recent remarks to the Paulding County GOP;

"We’ve had this problem because very large multi-national corporations that are headquartered in this state – their executives, many of whom are not from Georgia, have different values than you and I do. They think that their cultural norms, their liberal, far-left cultural norms, should be applied to our state."

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About the Author

Jay Bookman writes about government and politics, with an occasional foray into other aspects of life as time, space and opportunity allow.