Anti-Gay Legal Guns For Hire: How The Right Uses ‘Religious Liberty’ To Fight Discrimination Suits

by Jillian Rayfield, TPM Muckraker

Phyllis Young, the owner of the Aloha Bed And Breakfast in Oahu, Hawaii says that being gay is “detestable” and “defiles our land.” That’s why she denied a lesbian couple a reservation in 2007, and that is why the couple filed a discrimination suit against her in December.

But Young’s got a little high-powered help. Her attorney, from the Alliance Defense Fund, argues that the lawsuit threatens Young’s religious freedom because “no business owner should be forced to violate his or her religious beliefs because someone is offended by those beliefs.”

This argument is a mainstay with the ADF — which has for years attached itself to similar legal battles across the country — as well as the broader movement against anti-discrimination suits by members of the right-wing.

(NOTE: And here are all the religious freedoms the gay movement lawyers would like to destroy....)

Recently, the concept of “religious liberty” as legal loophole has gotten a degree of national attention, with state legislators in Tennessee and Michigan proposing language to exclude religious beliefs, or “moral convictions,” from state bullying laws. Michigan Republicans backed off their version of the gutted anti-bullying bill after public outcry. But Tennessee has its own version that may soon be taken up by the legislature. This bill creates a loophole for religious, philosophical or political beliefs in current anti-bullying laws.

The bullying laws are the most recent manifestation of a much broader effort by groups like the ADF to argue that “religious liberty” should provide cover for people who would discriminate against gays and lesbians. There is an essential conflict, the ADF argues, between religious freedom and discrimination lawsuits, because if discrimination against gays and lesbians is based on a religious conviction, then it is protected under the First Amendment.

In practice, the ADF has used this argument in a wide range of lawsuits, like that against Young, the B&B owner, and, in one of its most high-profile suits, in defending the Boy Scouts of America over its right to oust troop leaders for being openly gay. The 2000 case made it all the way to the Supreme Court, and the justices ruled 5-4 in the Boy Scouts’ favor.

In another case, the ADF unsuccessfully defended Jennifer Keeton, a former student at Augusta State University. The Georgia-based school had expelled Keeton from its graduate level Counselor Education Program, because she said she would not comply with the American Counseling Association’s Code of Ethics and keep her anti-gay views to herself when counseling other students. Keeton said the school violated her First Amendment rights when it forced her to attend a remediation program for understanding LGBT issues, after she indicated that she would try to “convert” gay students she was counseling.

The ADF also settled with Missouri State University officials on behalf of Emily Brooker, a student in the school’s social work program, after she wouldn’t participate in a class assignment to write a letter to state legislators in support of adoption by same-sex couples. The school had threatened to withhold her degree.

Outside of the courts, the ADF has pursued similar arguments in opposition to things like federal hate crime legislation, which was broadened by Congress in 2009. “This is the first time you would have written into law a government disapproval of a religious belief held by the majority of Americans — that homosexuality is sinful,” said Erik Stanley, senior legal counsel for the Alliance Defense Fund, according to USA Today. “It’s more of a slippery slope argument than about the law itself.”

“When you have pastors being called to testify about what they taught or preached to a person convicted of a hate crime, that’s going to send a shock wave through the religious community,” says Stanley. “It will lead to a chill on speech and free exercise of religion as it relates to homosexual behavior.” (Which is exactly the purpose.)

read … Talking Points Memo

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Two commenters actually get the point:

1) This is a tough call for me. On the one hand some one shouldn't be denied services because you disagree with them on an issue they practice, assuming it is a practice that doesn't hurt anyone. On the other hand, folks should be allowed to decide what they do with their private property. If some one says they will only serve folks that take off most of their cloths and paint themselves purple.......I should be allowed to decide who comes into my house to buy used furniture I am selling, kind of a grey issue to me.

And this exchange

A) There is indeed sometimes a need to balance different rights. This is something that neither side here wants to recognize. One side is arguing that anyone must always allow gays to stay, and the other that any owner with religious convictions against same-sex couples should always be allowed to discriminate against them. I think both extreme views are wrong. When it's a normal public accommodation, it seems to be that anti-discrimination provisions should apply regardless of the owner's religious views. But where it's a small, traditional bed and breakfast where rooms in one's home are being rented out (some bed and breakfasts are more like little hotels, and they should be treated like hotels IMHO), it seems to me that the right to have one's religious convictions govern what happens in one's own home should take precedence. Googling about this B&B, it appears to be 3 bedrooms with one shared bathroom in someone's home. It doesn't matter how much I disagree with this couple, I think they should be allowed to decide who can stay in their home…..

B) Let's rewrite what you posted a little bit and it should be illustrative of why you are wrong: "There is indeed sometimes a need to balance different rights. This is something that neither side here wants to recognize. One side is arguing that anyone must always allow black people to stay, and the other that any owner with racial convictions against interracial couples should always be allowed to discriminate against them. I think both extreme views are wrong."

A) I don't see why it illustrates why I am wrong. I think the principle applies regardless of what the home owners are discriminating on - it could be sexual orientation, ethnicity, size, political beliefs, religious affiliation, age, anything. FYI, my wife and I are an interracial couple. I don't think I'm insensitive to discrimination. I'm not a libertarian, but I do think that one should be able to decide who stays in one's own home no matter how bigoted one's views are. I think society's need to protect the rights of all must be balanced with individual rights.