Freedom for Me but not for Thee

Two state-level anti-LGBT bills, recently passed in Mississippi and North Carolina, have renewed the ongoing debate over “religious liberty” in post-Obergefell America. The details of each are worth considering, but taken together the laws—and their fallout—make this much clear: conservatives still don’t have a coherent approach to what religious liberty should mean in a secular, pluralistic society like our own.

The Mississippi law, HB1523, signed by Gov. Phil Bryant yesterday, forthrightly asserts that it is about “protecting” religious believers from LGBT people, along with anyone who is divorced, anyone who has had sex outside of marriage, and even single mothers. Note the language it uses:

The sincerely held religious beliefs or moral convictions protected by this act are the belief or conviction that:

(a) Marriage is or should be recognized as the union of one man and one woman;

(b) Sexual relations are properly reserved to such a marriage; and

(c) Male (man) or female (woman) refer to an individual’s immutable biological sex as objectively determined by anatomy and genetics at time of birth.

The bill goes on to specify in some detail what those protections entail in practice, which includes everything from giving religious believers the right to not participate in certain marriage ceremonies to allowing for “sex-specific standards or policies concerning employee or student dress or grooming.” (For more, see Zack Ford’s comprehensive account of what the bill means here.)

Some of this, of course, is sensible, even if dealing with largely imaginary problems; for example, no pastor or priest should be forced to marry a couple in a relationship not sanctioned by his or her faith. But as usually is the case with such legislation, its expansiveness generates other consequences. As the Protect Thy Neighbor project points out, this includes the following: “counseling group practice could refuse to see a mother and her teen who is experiencing severe depression because the woman is unmarried;” “a counselor could refuse to help an LGBT person who called a suicide hotline;” and “a corporation could fire a woman for wearing pants,” though such a policy probably would be invalidated by the federal Civil Rights Act if challenged. 

The North Carolina bill is a similarly nasty piece of legislation. It was a response to Charlotte's city council expanding the city's existing nondiscrimination ordinance to include LGBT people and, most controversially, allow transgender residents to use gender-appropriate restrooms. But with HB2, North Carolina's legislature, as Jay Michaelson argues, "went far, far beyond overturning that ordinance": 

Part I of the law does, indeed, require all bathrooms to be restricted by “biological sex” as defined on one’s birth certificate, but Parts II and III have nothing to do with that, and instead roll back any local ordinances protecting gay, lesbian, bisexual, or transgender people from discrimination in employment and public accommodations.

Note that this bill does not invoke religion or religious freedom; it just overturns any and all local ordinances that protected LGBT people from discrimination. 

The problems with the legislation are many. (For a start, see Lisa Fullam's helpful discussion of just how ridiculous and misguided the transgender/bathroom part of the bill is here.) But apart from them, the responses to HB2 deserves particular consideration.

Businesses and corporations who don't like discrimation against LGBT people are threatening to not do business in the North Carolina. PayPal, for example, announced that they would be dropping plans to build a global operations center in Charlotte that would have employed 400 people. This has conservatives livid.

A representative conservative response comes from the Heritage Foundation's Ryan Anderson. He begins with that laughable assertion that one of the bill's main purposes was to make sure there was "one set of regulations for the entire state when it comes to employment and public accommodation, rather than additional piecemeal regulations city by city." Got that? It's has nothing to do with LGBT people, just regulatory consistency! (Such fatuous reasoning might be why North Carolina's attorney general announced he wouldn't defend the constitutionality of the law, calling it a "national embarrassment.") Anderson goes on to argue his main point, which is that PayPal and other companies are "cultural cronyists" and bullies, making them out to be the real villains in this story.

Suddenly, it turns out, acting in accordance with your beliefs about right and wrong isn't praiseworthy at all. Conservatives, stalwart defenders of the "free market," for some reason think it's horrific coercion on the part of corporations to make their own decisions about how (and where) to do business. Why, in a diverse society like our own, one that now lets gays and lesbians marry in all fifty states, should a belief in tolerance and non-discrimination not factor into business decisions? Why should a company risk losing LGBT employees who don't want to live in a state where they are treated like second-class citizens, or make their initial recruitment and hiring less likely because discrimination is written into state law? We're never told.

What the conservative position on LGBT rights and religious freedom, exemplified in the Mississippi and North Carolina bills, amounts to is this: they want maximal ability to opt out of any and all situations that might involve doing business with LGBT people or treating them in minimally considerate and decent ways, but then rail against others for not going along with it. They want the state to sanction their own discrimination, but then are horrified when others freely choose to follow a different, better path. They want their freedom, but despise the free choices of others.

Anti-LGBT conservatives, in other words, want to live in a world made over entirely in their own image. Freedom means getting their way, all the time. The future of religious liberty in this country will be a perilous one indeed if it becomes associated with such nonsense.

Matthew Sitman is an associate editor of Commonweal. You can follow him on Twitter.

Please email comments to letters@commonwealmagazine.org and join the conversation on our Facebook page.

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