Deconstructing “Special Rights”

I heard someone make the claim again yesterday: gays want “special rights.”

So let me understand this argument:  If government respects the civil rights of Christians—and if Human Rights agencies protect those Christians from being picked on because of their beliefs—that’s simply government protecting equal rights.

But if government treats LGBT folks just like it treats everyone else—if it empowers those same Human Rights agencies to protect gay folks from being picked on because of their sexual orientation—that’s “special rights.”

When laws protect Christians, that isn’t a violation of the religious liberty of Jews, Muslims or atheists—it is a simple recognition that all religious people are entitled to hold their beliefs freely, without fear of discrimination. But if laws protect gays and lesbians, that’s an impermissible endorsement of the “gay lifestyle” and a violation of the religious liberty of those Christians who condemn homosexuality.

Got it.

I routinely encounter people who hold these logically incompatible beliefs, and to be honest, I’m getting pissed off. One of these days, I’m going to get in the face of one of these “Christian Nation” folks and demand to know just how they manage to twist the definition of “liberty” to mean their  right to impose their beliefs on those who don’t share them.

We’ve had the “special rights” accusation—lame as it is—for quite some time. But the charge that requiring businesses to treat people fairly violates “religious liberty” is a relatively new wrinkle on that argument—and it is driving me up the wall.

I posted recently about a hearing at which the South Bend, Indiana, Common Council was considering the addition of sexual orientation and gender identity to the categories covered by the city’s Human Rights ordinance. The measure passed handily, but not before a number of people asserted that forcing them to hire or retain qualified GLBT workers, or rent to same-sex couples, would violate their religious freedom.

Very similar claims were made when the Obama Administration ruled that employer-provided health insurance had to cover birth control for female employees who wanted it.

The argument seems to be that “religious freedom” means government can never interfere with me if I am acting on the basis of a genuine religious belief. That, needless to say, is not and never has been the law—I may sincerely believe that I should sacrifice my first born, or deny my child medical treatment, or smoke peyote during a religious ceremony, but the law doesn’t allow me to do any of those things, or hundreds of others, merely because I claim a genuine belief that God wants me to.

One reason that isn’t the law should be fairly obvious, at least to rational people. How on earth would we know that an employer was denying women workers birth control because he believed its use to be sinful, and not just because he wanted to save a few bucks? How would we know whether a landlord’s refusal to rent an apartment to a gay single or a same-sex couple was motivated by theology rather than by garden-variety homophobia?

This is the same problem prosecutors now face in the Trayvon Martin shooting, under the ridiculous “Stand Your Ground” law. Self-defense has always been a defense to a charge of murder—but only as part of a trial, after an initial arrest. Stand Your Ground laws are self-defense on steroids; they allow anyone to make a subjective claim that the government must initially treat as objectively true. Such a practice is simply contrary to the rule of law.

Religious liberty means that each of us has the right to believe what we wish, to follow the dictates of our consciences and theologies, and to observe the tenets of our faiths so long as we do not thereby infringe the equal rights of others or violate laws of general application (i.e., we can’t “kill a commie for Christ” as the 50s joke went). Religious liberty is not a “get out of jail free” card allowing us to deny an equal right to liberty to people we don’t like.


  1. But when you’re talking about mandates specifically to religious institutions to provide contraception coverage that violates the religions tenents, your argument slips. Where do you stop at the government intrustion on religion, telling religiion what views are acceptable?

    Let’s take another example. Let’s say the federal government passes a law saying that any institution which discriminates based on gender loses its tax exempt statuts. No exception for religion. The Catholic Church doesn’t allow women to be priests. (Not my belief…but it’s the Church’s position.) Are we going to say it’s too bad for the Church…government has to look out for the female Catholics being denied employment as priests.

    It’s a slippery slope when you start letting government dictate to religiion what an acceptable religious belief. I don’t agree that women can’t be priests, I don’t agree that priests can’t be married, I dont’ agree with the church’s position against artificial birth control…but that is my religion’s tenents and under the Free Exercise Clause I think government needs to accomodate those religious beliefs.

    You point out some exceptions to the rule above. There have been exceptions…some I might not agree with. But the exceptions do not swallow the rule that government must accomodate religious beliefs. It’s a very dangerous area when government starts telling religions which religious views are acceptable.

  2. Paul–as you know, the law is all about drawing lines. I don’t agree with the peyote decision, but I assume we both agree that government can prohibit sacrificing one’s child. The constitution would not permit enforcing the contraceptive rule against churches; however, allowing any university or hospital with a religious connection–no matter how tenuous–to claim exemption is a different matter.

  3. One of the “lines” that have been drawn in what’s essentially a balancing act in First Amendment jurisprudence is the size of the “zone” protected. (The same is true concerning civil rights issues although perhaps with slightly different constitutional considerations…..for example, employers under a certain size, or the family renting out a spare room….are exempt from antidiscrimination laws.) It’s argued that hositals and adoption agencies ought to be within the same zone as “churches” because the “mission” of these entities are part and parcel of the (generally commendable) faith-motivated work of the denomination involved. What if a religious denomination decided to “feed the hungry” by starting to rival Burger King or MacDonald’s? And that hiring openly gay or lesbain employees or offering same-sex partner benefits simply sent out the wrong messsage?

    And whether we like it or not, there are still a lot of folks who, citing the Old Testament, sincerely believe that interracial marriage is against God’s will? Obviouisly the Catholic Church doesn’t accept that proposition, and so the question of whether or not it could be forced to include interracial couples in its benefits packages doesn’t come up. But what if a faith of sufficient size (and size does seem to matter here) were to operate a hospital and start defying civil rights laws concerning race, etc.? In that arena, we’ve seeminly made a policy decision that says no matter how sincere you’re religious belief concerning race, it has to be trumped by “larger” considerations.

  4. Well, Sheila; you hit several nails on the head and seem to have touched a nerve or two with this blog. People are payig attention so you just keep writing.

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