A Kansas bill that would allow any person to discriminate against LGBT people in the name of religion, no matter what services they were supposed to provide, passed both houses of the state legislature this spring.

In theory, conservative religious caretakers of public museums could kick out a gay couple holding hands as they toured the galleries; homophobic employers who hiring or firing decisions depending on the sexual orientation or gender presentation of their prospective employees using religion as an excuse; and hotel owners could refuse to rent rooms to same-sex couples who desired to share the same bed.

While not explicitly targeting LGBT individuals, the Kansas bill is the most extreme example using religious exemptions to circumvent anti-discrimination laws or laws aimed at granting LGBT Americans equal rights.

And Kansas isn't alone. Recent legislative struggles for same-sex marriage from Maryland to New York have also leaned on religious exemptions; giving religious institutions license to discriminate against gay people who have been determined in the eyes of the law as warranting equal. This is true of marriage bills and for less-controversial antidiscrimination protections in states like Iowa, whose protections for gender and sexual minorities don’t extend to religious organizations.

Although most gay advocates and secular groups agree that religious institutions should be able to select their leadership according to their faith say some of these laws go too far, and can negate the very purpose of legal equality. They argue that inclusion of minorities in society is necessary to maintain a pluralistic, liberal democracy.

Whether any individual statute or clause crosses the line is a divisive and bitter question—and one with serious real-world consequences for both LGBT and religious people-- including those whose lives aren't so neatly cleaved to fit just one of those realms of existence.

Religious exemptions have been a precondition for every marriage law and LGBT inclusion in antidiscrimination statutes in the United States, and a clarification in every court order for marriage equality. These exemptions most clearly allow churches to opt out of marrying gay couples, and out of hiring people as ministers who don’t represent the tenets of the faith (known as the ministerial exception).

Even most gay activists allow for religious freedom in refusing to marry same-sex couples. Brian Silva, the Executive Director of Marriage Equality New York, told Campus Progress that his organization takes religious liberty very seriously, and supported religious exemptions from New York’s same-sex marriage push.

New York’s exemptions don’t apply to individuals who run businesses that provide public accommodations — they aren’t exemptions along the lines of “conscience clauses” for contraceptive dispensers. That isn’t true for every religious exemption; no matter how the exemption is provided — and it can be provided in a number of different ways, from statute to court order to unrelated legislative decree — there are three categories of entities that may be exempted for religious reasons: Churches, church-affiliated organizations, and religious individuals.

“I think it's pretty well-accepted by both the right and the left that houses of worship have a right to determine their own policies, and this would extend beyond the question of gay and lesbian rights,” Rob Boston, senior policy analyst with Americans United for Separation of Church and State, told Campus Progress. “Consider a Catholic church. A Catholic church doesn't have to marry anybody outside of the Catholic faith, and indeed can impose conditions on Catholics who desire to be wed. That's the church's private business. They're not required to accommodate anybody who doesn't meet their religious standards.”

Where it gets fuzzier, Boston said, is whether exemptions apply to church-related institutions like hospitals, schools, and charities.

In the recent Hosanna-Tabor Church vs. Equal Employment Opportunity Commission case, the Supreme Court ruled that the ministerial exception is constitutional and applies broadly, to more than simple parish ministers (in this case, a teacher at a Christian school). Beyond that, whether the First Amendment covers religiously-affiliated organizations is a divisive matter — as is whether it covers the conscience of individuals.

Religious individuals and religious freedom acts

Originally powerful protections for Native American religious freedom, the advance of gay rights has turned the religious liberty bills into a new weapon in the culture warrior’s arsenal.

Kansas’s House Bill 2260 is a religious freedom act, akin to similar laws in Alabama, Arizona, Connecticut, Florida, Idaho, Illinois, New Mexico, Oklahoma, Pennsylvania, Rhode Island, South Carolina, and Texas. All of these acts establish a “compelling interest” test to determine whether a law that places a burden on religious practice violates the free exercise clause; the state-by-state approach compensates for a Supreme Court ruling in 1997 that struck down parts of the federal Religious Freedom Restoration Act. 

While acts like that seem broad, interpretation varies significantly. In 2008, New Mexico photographer Elaine Huguenin found herself in court for refusing to shoot a lesbian commitment ceremony. Despite the religious protections, the state’s Human Rights Act prohibits discrimination in public accommodations based on marital status, race, and — among other characteristics — sexual orientation, “actual or perceived.”

The court ruled that Huguenin’s refusal to photograph the same-sex couple, based on her religious convictions as an Evangelical Christian, amounted to discrimination in public accommodations. She was ordered to pay court fees for the lesbian couple and to act differently in the future; Huguenin lost her 2010 appeal. 

But what constitutes a compelling interest, and a public accommodation?

University of California Los Angeles Law Professor Eugene Volokh took exception to the Huguenin case. “Along with a freedom of religion issue, it’s a freedom of expression issue,” Volokh told Campus Progress. Because wedding photography is a customized service, Volokh doesn’t believe it counts as a public accommodation; as a libertarian, he would like to see firm protections for religious individuals that do not work in government.

Volokh is not alone in his support for individual exemptions. “We believe the conscience of all individuals should be respected,” Becket Fund for Religious Liberty Communications Director Emily Hardman told Campus Progress. The Becket Fund’s brief on same-sex marriage endorsed protection for private individuals: “These individuals may now face civil suits and retaliatory state action for standing by their religious beliefs.”

Taylor Flynn, former ACLU attorney and professor at Western New England University’s School of Law, calls such exemptions an attempt to return to a “religious marketplace.” “Individuals, in effect, would be required to conform their lives to others‘ religious beliefs as a condition of their equal participation in the marketplace,” Flynn wrote in the Fall 2010 issue of the Northwestern Journal of Law & Social Policy. 

Flynn and Boston both cite the civil rights movement as a precedent for antidiscrimination statutes. “When we get to the point in this country where those laws also cover gays and lesbians — I think we will someday — at that point individuals who have some sort of objection to serving gays and lesbians are going to have to decide if they want to stay in business or if their prejudice is so strong that they want to shut down,” Boston said. 

In the model of civil rights legislation, Volokh said he could see a use for wide-reaching antidiscrimination laws in a situation where there is a broad geographic disparity in acceptance vs. non-acceptance of gay people. Whole swathes of land rendered virtually uninhabitable for victims of prejudice, like the South pre-Civil Rights Act, are unlikely — but their avoidance represents a compelling government interest.

What does this mean for the marriage equality battle?

Both proponents and opponents of religious exemptions point out that there have been few court cases relating to religious discrimination against LGBT people — as gay people are unlikely to demand services from a religious institution that does not respect their relationships, the specter of gay couples holding churches hostage remains a convenient straw man. Churches and gay marriage are not diametrically opposed, as the United Church of Christ and Unitarian Universalist Association, along with many other individual churches, bless gay unions.

Still, religious exemptions have proven crucial in state efforts to approve same-sex marriage. 

New York’s marriage equality law was particularly broad in its religious exemptions, explicitly securing the right of any religiously-affiliated organization, from churches to faith-based charities, to “tak[e] such action as is calculated by the organization to promote the religious principles for which it is established or maintained.”

Towleroad blogger and California Western School of Law Professor Ari Ezra Waldman expressed concern that this might lead religious hospitals to prevent gay couples from visitation rights — although the Department of Health and Human Services’ quiet memo requiring hospitals to recognize gay and lesbian partnerships received no national outcry from religious hospitals. These religious exemptions, too, have yet to undergo significant court evaluation that will delineate what amount of recognition churches are required to extend to same-sex unions.

Regardless of exemptions, religious institutions that discriminate against LGBT people may lose state funding, subsidies, or access to state facilities (in 2006, the California Supreme Court ruled that Berkeley could refuse to grant a Boy Scout affiliate free access to the marina if it continued to discriminate against gay men). While they have religious liberties, they are not granted carte blanche access to public money or government support — they may continue to discriminate, but the choice to do so may not be publicly subsidized.

Kansas’s radical bill died in conference, just a hair away from complete passage, and proponents and opponents of same-sex marriage are united in their support for religious freedom clauses. But as more people support and value LGBT individuals, religious exemptions become less concerning: The battle for full inclusion of gay people in society is being fought more in minds and hearts than in courts and capitols.

Shay O'Reilly is a reporter with Campus Progress. Follow him on Twitter @shaygabriel.

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