Religious freedom and marriage equality

In light of questions that have arisen concerning the religious freedom provisions in the D.C. marriage equality bill — specifically, demands from some quarters for a broader religious exemption — our colleague Bob Summersgill has submitted the following supplemental testimony. My supplemental submission on behalf of GLAA follows his.

Chairman Mendelson and members of the Council-

Please include this email as supplemental testimony on the Religious Freedom and Civil Marriage Equality Amendment Act of 2009, Bill 18-482.

I did not comment on Section 2(b) of the bill that protects religious freedom because I had thought it was well written. In light of the testimony and proposed amendments to the section I offer these additional considerations. I will leave the legislative drafting to the experts, you and your staff.

The religious exemption in this bill should not be narrowly focused on marriage. Most, if not all, of the religious objectors to the bill are just as offended by my marriage as my being gay. The Catholic Church finds the idea of my marriage as abhorrent as my taking communion. That is and should be their right. A narrowly focused religious exemption to marriage would merely be used as a way to get around the lack of exemption to sexual orientation, religion, race, etc. It would also fail to live up to the broad guarantees of the First Amendment.

It would be preferable to make a broad exemption for religion and religious practice to the entire Human Rights Act. A religion should be free to discriminate on the basis of marital status, sexual orientation, race, religion, national origin and every other category of the Human Rights Act. Singling out marriage gives the appearance that the government finds that my marriage is something in particular that is offensive. Rather the message should be that religions may discriminate on any basis as their faith dictates. The narrow marriage exemption also gives special status to anti-gay religions at the expense of racist, sexist, and xenophobic religions. The law needs to be neutral to religious belief--including religious discrimination-- without regard to which views we find offensive. The Human Rights Act does not rank different kinds of discrimination, and nor should this bill.

The question should then be around the limits of what practices or facilities qualify for the religious exemption. Clearly that should be any house of worship, service, ritual, or facility used primarily for religious observance or education. This would cover, for instance, wedding receptions and AA meetings held in church facilities.

It should not extend to facilities, programs, or businesses that are not used or operated primarily for religious purposes. If a church operates a business, the business should be subject to the Human Rights Act, much as "unrelated business income" is taxable.

The religious exemption certainly should not extend to a person's or businesses' religious conscience. If I am a caterer, I should not be exempted from the Human Rights Act to discriminate and refuse service to a gay couples' wedding any more than I should be able to refuse service to a Bar Mitzvah, or Black family reunion.

The religious exemption should be pierced by the acceptance of government funding. No service, function, or facility funded in whole or part by the government should be used in a discriminatory manner. This includes delivery of services and employment of people to provide those services. The application and acceptance of government funding must be done in accordance with the same laws that govern any spending of public money. I would find it a fair compromise to say that this applies to future or renewed contracts and grants, but not to current contracts and grants. That would avoid disruption of services.

I believe that broadly writing a religious exemption in this bill should include a repeal of § 2-1402.41(3), which singles out "any person or persons that are organized for, or engaged in, promoting, encouraging, or condoning any homosexual act, lifestyle, orientation, or belief" as legitimate targets of educational discrimination. This clause not only singles out one group for special discrimination, but also anyone for only their speech or beliefs. This section was imposed by a former Congressman over Georgetown University's then discrimination against gay and lesbian students. The exemption has never been used thanks to the active involvement of the D.C. Council into the negotiations between the University and the students. It has worked out well for all involved.

The current bill is a good opportunity to write a broad religious exemption into the Human Rights Act and remove the narrow and anti-gay and anti-First Amendment section of the law.

Thank you for your consideration of these issues. Please feel free to contact me if you have any questions or if I can be of any assistance.

Bob Summersgill

And here's my submission for GLAA:

Dear Chairman Mendelson:

Please include this email as supplemental testimony for GLAA on Bill 18-482, the Religious Freedom and Civil Marriage Equality Amendment Act of 2009.

On behalf of GLAA, I entirely agree with Bob Summersgill's message of October 30 concerning religious freedom protections. I will offer just a few further thoughts.

Just because gay people are involved in this case is no reason to make a significant change in the law's balance between religious freedom and the rights of public accommodation. On the one hand, of course a church should be free to discriminate in its sanctuary, in its core religious function, and in its fellowship hall adjacent to or near the church. However, when a religious organization runs a business serving the general public, or when it accepts government funds to perform a particular public service, it should be bound by the same regulations and human rights protections as anyone else.

A conscience-based exemption is wrong because it would create a huge and arbitrary right for any individual to claim an exemption from the Human Rights Act, and possibly from other laws and regulations, merely by invoking his or her religious beliefs. This would create all manner of at-will breaches in what President Jefferson, in his letter to the Danbury Baptist Association, called the wall of separation between church and state.

Why in the world should a pharmacist be entitled to deny service to a particular customer because of his or her disapproval of what that customer's prescription is for? When he is on duty, does the pharmacy become a church? Why should a florist or photographer be entitled to discriminate against customers whose celebrations he or she doesn't like? What this would effectively mean is that there is no church/state nor public/private separation, that religious protections extend to all of life and trump all other protections and public policies. That would be highly unreasonable. If such a policy were adopted, you would doubtless see many heretofore unchurched people find religion right quick so that they could enjoy the same right to discriminate as intolerant fundamentalists.

Why would we want to undermine the concept of a public accommodation in this way? The witness representing Catholic Charities at the October 26 hearing made it clear that they want a blanket exemption to discriminate as they please. Not with public tax money, they don't. The basic problem with redefining religious freedom so broadly is that it inevitably interferes with the religious freedom of others with different beliefs--that is, it effectively imposes the religious beliefs of more monied and powerful religious groups over others. That would be intolerable.

As strong defenders of the First Amendment, we are prepared to fight alongside any religious organization to defend its right to bar us from its house of worship, deny us its sacraments, and denounce us from its pulpit. But religious liberty in a pluralistic society requires reciprocity and mutual respect. That spirit is lacking in demands for blanket exemptions and conscience clauses.

Thank you for your attention. I would be happy to discuss solutions with you as you proceed with consideration of the bill.

Sincerely,

Rick Rosendall
Vice President for Political Affairs
Gay and Lesbian Activists Alliance of Washington, D.C.