Will we be allowed to disagree about marriage in the future?

Washington D.C., Dec 15, 2015 / 03:01 am

The future of a diverse and pluralistic public square is at stake in the debate over marriage and sexuality, said one legal scholar at an event in D.C. sponsored by the Atlantic.

"Part of freedom is going to have to be the right to disagree about the truth," Ryan Anderson, a senior research fellow at the Heritage Foundation, proposed at "Unfinished Business: The Atlantic LGBT Summit" on Dec.10.

Anderson was addressing the topic of civil rights and civil liberties, with regard to the proposed anti-discrimination Equality Act.

Although the Supreme Court ruled earlier this year that same-sex marriage is legal nationwide, there are still "disparate views" on marriage and sexuality, he noted. The "big question" is whether these views will co-exist or beliefs in traditional marriage will be silenced by federal anti-discrimination legislation.

"Do we want to impose an orthodoxy for the entire nation, enforceable by law, or do we want to let this solve itself out by saying that diversity and pluralism and tolerance is really the best of the American tradition?" he asked.

"And so you can agree to disagree, and peaceful coexistence is acknowledging that there are going to be people who disagree with you, and they still have the right to think what they think and live their lives in accordance with those beliefs."

The Equality Act, introduced in July, would create a protected class of sexual orientation and gender identity – just as race is protected against unlawful discrimination in the Civil Rights Act – and it would extend anti-discrimination protections for sexual orientation and gender identity to areas of employment, housing, credit, jury duty, and education.

It would apply to public accommodations, which were originally defined as places like hospitals, gas stations, restaurants, and theaters in the Civil Rights Act, but would now mean most any private business that serves the public, Anderson explained in a Nov. 30 report.

Supporters like the Human Rights Campaign claim that although same-sex couples can legally marry in all 50 states, they can be refused goods like housing because of their marriage status, and can supposedly be "fired simply for getting married and wearing their wedding ring to the office the next day." Broad anti-discrimination protections are needed to ensure this doesn't happen, they argue.

The bill was introduced in the House this past summer. It currently sits in the House Subcommittee on the Constitution and Civil Justice and has 170 co-sponsors in the House and 39 in the Senate, all Democrats or Independents.

Publications like the New York Times and Minneapolis Star-Tribune have endorsed the bill, and corporations like PayPal, Google, Amazon, Facebook, Apple and Microsoft have supported "LGBT non-discrimination protections," according to the Human Rights Campaign.

Democratic presidential candidates Hillary Clinton, Bernie Sanders, and Martin O'Malley have endorsed it, as well as the White House.

"That bill is historic legislation that would advance the cause of equality for millions of Americans," stated White House press secretary John Earnest on Nov. 10. He added that it would enhance civil liberty protections while maintaining religious freedom.

Legal experts have warned that while the bill contains many "good" anti-discrimination protections of civil liberties, it is so broad and vague that it could easily be used to silence the religious beliefs of anyone who believes that marriage is between a man and a woman.

For instance, its prohibitions on "exclusion," "harassment," and "unfair treatment" could be interpreted as a ban on voicing moral opposition to same-sex marriage because such statements could discomfort someone else.

There are already lawsuits against small businesses that refuse to cater same-sex weddings, Anderson noted at the Atlantic summit. He gave the example of Washington state florist Barronelle Stutzman, who has employed gay people before and served same-sex couples but not same-sex weddings. She faces a discrimination lawsuit from the ACLU and the State of Washington for not serving a same-sex wedding.

This clash of beliefs is ultimately a test of a free and pluralistic society, Anderson said. Instead of free and public debate about the nature of marriage and sexuality, and the freedom of business owners to operate according to their religious beliefs, federal legislation could force everybody to respect one set of beliefs.

And this legislation is by nature "a very blunt instrument" and "not a finely-tuned, finely-crafted mechanism for fixing these problems," Anderson said. People aren't just going to change their deeply-held religious beliefs "overnight," and "it would be a mistake if the government tried to do that under the penalty of law."

The Equality Act doesn't even contain "meager" religious liberty protections, he explained in his Nov. 30 report, and nullifies any protections under the Religious Freedom Restoration Act for a person who believes that marriage is between a man and a woman and is "charged with 'discrimination'."

Religious freedom is higher than civil law, Anderson maintained, citing James Madison that "there's a duty that takes precedent to civil society, and that's a duty that every individual owes to the Creator, in how he or she understands the nature of that Creator and the nature of that duty."

Madison saw religious freedom as a "natural right," he added, and recognized that "the government can't coerce religious action, they can't place undue burdens on religious practice."

This is already the case with pacifists who refuse the military draft and pro-life doctors who refuse to perform an abortion, he explained. Although the Supreme Court recognized a woman's legal right to an abortion in Roe v. Wade, he said, that decision did not recognize the duty that all doctors must perform abortions.

"What the Equality Act would do is more or less render a belief that's common to all of the Abrahamic faith traditions – so Orthodox Jews, Roman Catholics, Evangelical Christians, Latter-Day Saints, and many other people, who share that belief system wouldn't be able to live it out at their workplace, at their school, at their charity," Anderson said.