KENNEDY: Religious liberty—one more time

January 21, 2016

Sheila Suess KennedyIn the heat of Indiana’s battle over civil rights for LGBT Hoosiers, and especially in the wake of the State of the State speech delivered by Indiana’s culture-warrior-in-chief (aka Gov. Mike Pence), there has been a good deal of attention paid to the perceived conflict between religious liberty and civil rights for LGBT Hoosiers.

This is not a new issue. The parties may have changed, but the same debate has raged every time the law has been expanded to protect a disfavored group from discrimination.

I still recall a long-ago discussion with a local banker about then-current civil rights laws. He was a thoroughly nice man, and certainly not a racist, but he took what he thought to be the libertarian position that civil rights laws denied him his constitutional liberty to act upon his religious convictions.

His position was widely shared in the late 1960s, after passage of the 1964 Civil Rights Act. How dare government tell me that my public accommodation—my restaurant, hotel, shoe shop, whatever—has to do business with black customers?! How dare the government tell me I can’t refuse to hire women?

My students today are astonished to learn that, until passage of that federal law in 1964, it was perfectly legal to refuse to hire or serve black people or women, just as it remains perfectly legal under the laws of states like Indiana to refuse to hire or serve LGBT folks, or to fire someone simply for being gay.

Civil liberties—the rights protected by the Bill of Rights—protect Americans from certain actions by government; civil rights laws protect Americans from certain kinds of discrimination by their fellow citizens. People who opposed civil rights laws in the 1960s and those who oppose the extension of those laws today insist that such prohibitions against discrimination deny them the right to act on the basis of their deeply held religious beliefs. Essentially, they argue that religious liberty includes the right to discriminate.

That has never been the law. (See Justice Scalia’s majority opinion in Employment Division, Department of Human Resources of Oregon v. Smith for a primer.)

The U.S. Constitution protects citizens’ right to believe anything. It does not, however, protect an untrammeled right to act on the basis of religious doctrine. If my sincerely held religious belief requires me to sacrifice my firstborn, or murder abortion doctors, or engage in wife-beating or child abuse, the government has the right—indeed, the obligation—to step in.

The constitutions of the United States and Indiana have never been interpreted to privilege socially harmful behaviors simply because those behaviors are religiously motivated.

As I told my banker friend those many years ago, the libertarian principle that informed the founders’ approach to government included more than the right of individuals to live lives of their own choosing; it also specified limitations to that right.

Americans are free to “do our own thing”—to choose our own life paths and beliefs—as long as we do not thereby harm the person or property of another, and as long as we are willing to accord an equal right to others.

Those who want to believe that blacks or women or gays are fundamentally inferior are free to embrace that belief. They are free to shout it from their pulpits or from the rooftops. But they are not free to use the law to disadvantage those they disdain.

Civil rights are entirely consistent with both our libertarian heritage and our Constitution.•


Kennedy is a professor of law and public policy at the School of Public and Environmental Affairs at IUPUI. She blogs regularly at www.sheilakennedy.net. She can be reached at skennedy@ibj.com. Send comments on this column to ibjedit@ibj.com.


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