Discrimination Against Gays and Lesbians

Note: this post was prepared for religiousleftlaw.com (thus the focus on the left), but it should be of interest here

Chip Lupu and Robert Tuttle were recently interviewed in the Pew Forum about the class of cases involving discrimination against gays and lesbians on religious grounds. Suppose a pharmacist refuses to serve someone because he is gay and the pharmacist believes same sex relations are sinful. I think most people on the left would think that the pharmacist should not be able to defend the refusal to serve on religious grounds any more than a pharmacist could refuse to serve some of another race on religious grounds. But see Bob Jones case (many on right believe that race discrimination on religious grounds should be constitutionally protected).

But the cases that are arising are not of this sort. They involve, for example, sex counselors who refuse to counsel persons about same sex relations, ministers who refuse to preside over gay weddings, and photographers who refuse to participate in gay weddings because they (wrongly in my view) believe that same sex relations are sinful. These cases seem different than the first class of cases. In the first class of cases, the pharmacist discriminates against persons. In the second class, the counselors, ministers, and photographers do not want to be involved in (what they perceive to be) sinful activity and that refusal has a discriminatory effect. But it is not discrimination against persons. If one of the participants in the wedding wanted to hire the photographer to take pictures of him playing basketball, there is no reason to think the photographer would refuse to take such pictures on religious grounds.

I believe the left is divided on the second class of cases – even the religious left might be divided. I think the religious claim should lose in the first class of cases and win in the second. But I am not sure why the distinction between persons and refusal to participate in perceived sinful activity should make a difference. After all, the pharmacist in the first example may think that serving gays is sinful activity. To be sure, the government interest in fostering respect for individual and supporting human dignity is more deeply offended in the first line of cases. And a contrary ruling in the first line of cases would open the door for widespread evasion of anti-discrimination laws in a way not threatened by the second. But I believe that a part of the pull to reject the religious claim in the first line of cases is that the theology of the claimant in the first line of cases is more odious than that of the claimants in the second line of cases. That, theoretically, should not be on the table in a free exercise inquiry.

In any event, Lupu and Tuttle conclude their very useful survey of the cases with the conclusion that the legal cases involve the second line and that claimants are likely to lose in the courts. Much as I lack admiration for the theology of the claimants, I hope Lupu and Tuttle’s predictions prove to be off the mark.