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Religious Freedom or Unlawful Discrimination?

Gay Marriage vs. Religious Freedom: The Collision of Competing Rights or a Mask for Illegal  Discrimination

The welcome and long overdue US Supreme Court decision legalizing same sex marriage generates as many legal issues as it resolves.  One of the areas of controversy is the "collision" of an individual's right to marry and another individual's right to practice her or her religion.  

Take, as a specific example of this, a baker who claims that baking a wedding cake for a gay wedding would violate his religious beliefs against homosexuality and gay marriage.  Does the law afford any protections against such discrimination against the soon-to-be married same sex couple?  Does the storeowner have legal protections if he/she wants to refuse service to someone because of their sexual orientation? 

Religious objections to serving gay couples are on the rise.  If anything, the confirmation by the Supreme Court that the right to marry should be extended highlights the challenges many face as they seek to enforce their basic rights.   In Indiana and Arkansas, the legislatures recently passed laws (which they later retracted due to intense fallout) allowing people and corporations to bring religious-liberty claims against one another and the government. The new so-called religious-liberty bills were just transparent attempts to protect businesses that didn't want to serve gay couples.  They were no more "legal" than laws from Jim Crow permitting white business owners to refuse service to African Americans. But they were cloaked under the guise of being "religious freedom" laws.  

The shameful history of Jim Crow is part of our history and efforts to paint discrimination as  "over" are totally out of touch with reality.  The U.S. Supreme Court recently gutted the Civil Rights Act voting rights protections because of far-fetched notions that discrimination against minority voters was a thing of the past. Acting on the Court's leads, several states pushed forward highly restrictive ballot box measures that would effectively disenfranchise tens of thousands of minority voters.  It's unclear how far the law will regress in this direction, but the recent enactments of laws allowing businesses to refuse to serve gay and lesbians isn't too far a stretch for the conservative majority on the court.   

In many states, a landlord can legally turn away a gay client or tenant.  They can do so even without making any showing that renting to a gay client or tenant violates their legal rights. 

Accommodating religious practices is also required under federal law.  Thus, in a recent U.S. Supreme Court decision, the court ruled that a retail clothing store could not refuse to hire a Muslim woman because she wore a head scarf to her job interview. Abercrombie & Fitch argued to the Supreme Court ruled that a young lady who was denied a job offer because of a policy banning head coverings was asking for favored treatment.  However, she was entitled to wear the head scarf under federal law.  Therefore, the decision not to hire her was a legal violation that entitled her to damages.   

Undue hardship surely does not mean that an employer is excused from accommodating an employee making a request for religious accommodation because doing so would conflict with the religious beliefs of the employer.  

While we enjoy considerable protections in California against discrimination based on religion and sexual orientation, those residing out of state are not so fortunate. The conservative backlash against the protection, under the Constitution, of the right to marry regardless of sex has been intense and it will continue for years.  

Justice Clarence Thomas, in his dissent against same-sex marriage, warned of ''potentially ruinous consequences for religious liberty.'' Two states have passed laws allowing county clerks the right to refrain from issuing marriage licenses on the grounds that gay marriage is against their religious beliefs  Greg Abbott, the governor of Texas, recently proclaimed: ''No Texan is required by the Supreme Court's decision to act contrary to his or her religious beliefs regarding marriage.'' 

The employee's rights to enjoy religious practices at work with reasonable accommodations by the employer is protected under law.  However, so is the employer's right to apply it's religious beliefs to affect rights in the workplace. Thus, the US Supreme Court recently decided that the owners of a business had the right under the constitutional guarantee against restrictions against freedom of religion, not to offer health insurance coverage for birth control for its employees. In a 5-to-4 ruling last year, the Supreme Court gave Hobby Lobby, which is owned by evangelicals, the right to refuse to pay for certain forms of birth control, which were required under the Affordable Care Act.  

The owners argued successfully to the Court that providing health insurance that covered emergency contraception and IUDs offended their religious beliefs.  They claimed that methods induced abortions because they terminated pregnancy after fertilization. Hobby Lobby provided almost no scientific data to support its arguments. The Obama administration presented the Court with the consensus medical view that a women's health was greatly enhanced by giving women many health care options. The tradition of honoring religious beliefs, so ingrained in our collective national conscience, trumped science, the health of the female employees, and their rights to receive full medical insurance unhindered by the religious beliefs of their employers.  Notably, the Affordable Health Care Act did not require that employees who objected to these birth control methods receive them, or even that their health care plans provide coverage for them, at their election.      

The rights recently afforded to marry may give gay couples additional protections. Thus, discrimination against protected groups may soon be prohibited at private religious schools and social-service organizations? In his dissenting opinion on the same-sex marriage case, Justice Roberts predicted that ''Hard questions'' will arise ''for example, a religious college provides married student housing only to opposite-sex married couples, or a religious adoption agency declines to place children with same-sex couples.'' But it's hard to say where the interesection between religious freedom and other rights will land in in view of the Court's truly disturbing decision in Hobby Lobby. 

We are spoiled here in California.  We have statutes that are progressive and help workers protect their rights to be free from discrimination in the workplace based on their religion and religious orientation.  The national discourse is still underway. And the new challenge to civil rights might come in the form of "religious freedoms.'    

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