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Discrimination: Who Decides
And in What Forum?

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by Tom Charles Huston

Rep. Ed DeLaney (D-Indianapolis) in a temperate and reasoned Facebook post articulates the Democratic case against the religious-freedom statute while professing his own commitment to defending “anyone’s right to their belief and any church’s right to exercise its own creed.” It is this sort of assurance that best explains why advocates of the religious-freedom statute believe it is necessary.

No one doubts that as long as the First Amendment survives Democratic attempts to gut it, no unit of government is going to force anyone to profess a belief contrary to his own or deny a religious congregation the right to exercise its creed within the confines of its sanctuary. DeLaney’s professions of support for religious liberty are sincere but myopic. He ducks every issue that is fundamentally in play in the current discussion about religious liberty.

How, for example, would Representative DeLaney answer these questions (assuming for our purposes that the individual or church involved has a sincere religious conviction that the only legitimate marriage is one between a man and a woman)? May the state compel:
  • An organist to play at a gay marriage ceremony?
  • A photographer to photograph such a ceremony?
  • A caterer to serve a gay wedding reception?
  • A church to let its sanctuary for a gay marriage ceremony?
  • A pastor to officiate at a gay marriage ceremony?
More broadly, may the expression of a religious belief (i.e., that same-sex marriage is morally wrong) under any circumstance be grounds for a finding of discrimination under a human-rights ordinance? Would the exclusion of gay couples from a church-sponsored social function constitute discrimination under such an ordinance? With respect to all the foregoing questions, who decides and in what forum?

The truth that critics of the religious-liberty law wish to avoid is that many people have strong religious convictions on issues raised by the assertion of gay rights that they do not have with respect to the claims of other protected classes under human-rights ordinances. No human-rights agency today has to deal with claims of religious liberty in the context of traditional categories of discrimination. It is only in the context of sexuality that these claims arise, and since these claims are plausibly within the scope of rights protected by the First and Fourteenth Amendments, they present difficult issues for which more precise and clear rules ought to be brought into play.

I have seen it remarked in several places that courts don’t need to be told by legislatures how to resolve these cases; that is the business of judges. This is simply untrue: legislatures routinely establish rules of construction for judicial interpretation of statutory law. Many of our most common “rights” exist by virtue of statute not as a result of our Constitution. A discriminatory act may be constitutional yet violate a statute or ordinance. The role of a court in construing a statute is to determine the intent of the legislature, and it is perfectly logical for the legislature to give the courts guidance on how to do so.

I have focused here on questions involving gay rights because the thrust of the attacks on the religious freedom law are predicated on the assumption that it is a license to discriminate against gays. As I have written repeatedly, I believe that the critical issues of religious liberty that we will face in the future will be peripheral to gay rights, but you have to address the charges made by your opponents today, not those you ultimately expect them to make tomorrow.

These opponents assert that all persons engaged in commerce must by their conduct acquiesce in the moral equivalency of decidedly different forms of marriage. Not only must they so acquiesce, they must personally participate in marriage ceremonies to which they have sincere religious objections. To object to this coerced participation on the grounds that it constitutes an infringement upon their liberty is itself deemed an act of discrimination in intent and purpose.

In the 16th century, people who dissented on religious grounds to the dictates of government were put to the stake. Today, they are put out of business.


Tom Charles Huston, A.B., J.D., an adjunct scholar of the Indiana Policy Review residing in Indianapolis, served as an officer in the United States Army assigned to the Defense Intelligence Agency and as associate counsel to the president of the United States.
 
The Indiana Policy Review Foundation is a non-profit education foundation focused on state and municipal issues. It is free of outside control by any individual, organization or group. It exists solely to conduct and distribute research on Indiana issues. Nothing written here is to be construed as reflecting the views of the Indiana Policy Review Foundation or as an attempt to aid or hinder the passage of any bill before the legislature or to further any political campaign.
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Spring 2013

Spring 2015

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