It’s time to revisit the issue of LGBT rights and legislation to protect individuals from prosecution for refusal to provide some service or good to a homosexual or homosexual couple.  As many know by now, both Georgia and North Carolina passed legislation that would either restrict public restroom use to biologically determined individuals or would establish protections for businesses and individuals who refuse on conscience grounds to provide goods and services to homosexuals, or both (as in the case of North Carolina).  The Georgia bill was vetoed by the governor, after pressure from some large corporations who said they would not do business there if the bill was signed.  Disney Enterprises was one of those who threatened the state.  In North Carolina the bill passed, containing language on both subjects above, but now the governor is attempting by executive order to backtrack a bit on the restroom part of the legislation.  He is also calling for a special legislative session to address the legal protection aspect of the bill, apparently wishing, after hearing threats similar to those in Georgia, to eliminate the protection for “conscientious objectors.”

I don’t need to spend much time on the restroom aspect, except to say that the initial legislation made very good sense, limited as it is to public restrooms.  Private owners are free to do what they wish, subject of course to potential and substantial lawsuits if something criminal occurred in a restroom, such as sexual assault or rape.  The LGBT community of course is (not arguing) screaming that this is discrimination.  I would like to know exactly how they propose to support that assertion.  Are they going to use a Plessy v. Ferguson/Brown v. Board of Education argument, asserting that forbidding use of one sex bathroom by another gender is “separate but equal” and thus (under Brown) separate but not really equal?  Are they going to say that mere sexual identification is enough to get them admitted to the restroom of another gender?  I can’t tell yet that they have any argument at all, except to cry that it isn’t fair.  And how will they address the argument that the issue of race is one that is a relevant category because one cannot control his or her racial identity (unless one argues that like sexual identity, racial identity is also constructed—which some have actually argued), and ought not to be discriminated against on that basis, while one’s sexual identity, while determined and thus uncontrollable, one’s use of a restroom in no way detracts from anyone’s dignity or standing as a person.  The object of restriction of a restroom is not to treat someone as an inferior human (as some LGBT people would say) but to protect a modicum of modesty between the sexes and to prevent potential abuses of such actions.

At any rate, my main concern here is the protection for religious conscience.  The First Amendment states in part that “Congress shall make no law…prohibiting the free exercise thereof [of religion].”  The meaning of that clause has been the subject of much debate and many court decisions—as well as a great deal of confusion and obfuscation.  Besides the First Amendment, and because of the Supreme Court’s interpretation of it in 1990 in the Smith case (494 U.S. 872), Congress passed the Religious Freedom Restoration Act (1993) and , after the Supreme Court struck down part of that legislation, many states passed similar legislation.  The purpose was to protect those who were affected by any action against them that would impinge on the free exercise rights by (usually) requiring that the courts examining the action apply a strict scrutiny to governmental actions.  Now these laws didn’t provide automatic protection to one objecting on conscience grounds, but they did erect a barrier to government overreach that had to be overcome in a court of law.  North Carolina was simply attempting to establish a clear protection through its legislation.

The big question however always is and will remain:  What constitutes an interference with one’s conscience rights under the RFRA or the First Amendment, and how ought a court to decide?  Now for a Christian, the first hurdle is simple: Does the request made of you violate your firmly held beliefs regarding the will of God for your life and actions?  The answer must be given by the Christian himself.  We can argue all day that we ought to serve anyone, but until or unless that individual Christian is fully convinced that that is allowed, his conscience must govern.  He must refuse the homosexual, whether it is objectively acceptable or not to serve.  Violating the conscience is a sin, as Saint Paul clearly says in Romans.

But the public question, to be decided by a court, is not as “easy.”  We need a criterion with which to address such cases, and such a criterion is hard to find.  At one end of the spectrum, we can always just accept the statement of the Christian who says his/her conscience is violated.  At the opposite end we can disregard what the individual Christian asserts as irrelevant in a given case and simply say he is wrong (for reasons to be explored later).  Both these possible actions are problematic.  While it is tempting to just accept whatever the believer says, it presents a problem because though that may be true for him, it also has ramifications outside himself, and so we would do better to find some kind of objective standard that accounts for his conscience but also for other criteria that are relevant.  On the other hand, for a court to ignore conscience is, well, “unconscionable.”  Genuine religious sensitivities are then just treated as obstructions to what the state wants to do.  That could be unjust in any given situation.

So what do we do?  The answer depends on how one analogizes the refusal to serve a homosexual in some way and on what kind of service is in question.  The homosexual community wants to assert that the service of a homosexual is just like the service of a black person (in the 1950s).  Since refusal to serve a black person has been held illegal in most cases, then this kind of refusal should also be illegal.  After all, they say, being homosexual is just like being black—it is genetic.  The problem here is that, even assuming that homosexuality is genetic (in terms of predisposition), the life of being a homosexual is a choice that is made by a moral agent (unlike the black person, who has no choice). Moreover, being a black person is not a sin to any Christian (except a few wildly radical ones), while homosexuality as a life is sinful in all historic Christian teaching and pretty clearly in Scripture itself.  I am of course speaking of the life of homosexuality, its practice, not the possibility that one may feel a same-sex attraction.  The old word “celibacy” fits well here.  At any rate, the analogy doesn’t hold and so the homosexual I argue cannot use it legitimately to support the ignoring of religious scruples.

Without that analogy the homosexual community has lost a major argument.  But does that mean that any and all “discrimination” should be allowed by asserting conscience?  The obvious answer would seem to be “no.”  But why not?  My aim is to protect sincere conscience objections but not to allow frivolous or irrelevant ones.  But the task of distinguishing objections is not easy.  Even the use of the words “frivolous” and “irrelevant” is ambiguous.  I might believe some claim is irrelevant but the Christian may not believe that.

My tentative proposal is this.  In cases in which the content of the particular issue involves the possibility of some violation of a sincere conscience objection, that refusal based on the objection ought to be allowed by a court.  For example, if a homosexual couple wants a wedding cake that contains homosexual symbols of some kind, the baker should have the right to refuse to make that particular cake.  On the other hand, if the homosexual couple wants just a cake (generic cake for example) the baker would not have the right to refuse service.  The nature of the conscience objection determines the allowance or disallowance of the right of refusal.  To generalize, if the LGBT person(s) is seeking service or a product that contains by its very nature the substance of something related to a conscience objection rooted in the free exercise of religion, the provider would have the right to refuse to serve or provide the product.  This is not a foolproof test.  There will inevitably be hard cases at the margins.  But my sense is that this test would cover most cases.  Of course it will not satisfy any radical LGBT person who wants all refusals to be treated as illicit discriminations.  He/she simply refuses to recognize the existence of the First Amendment as in any way determinative.  But it is highly unlikely that a court would completely ignore the First Amendment.  My proposal is a way to give guidance to courts (not that they would care) on these matters.  And the guidance is at least better than what we presently have, which is virtually nothing (Note: In fairness, the Supreme Court has not yet addressed this specific kind of case).

So let the commenting begin.  I welcome input from anyone who can suggest a better or improved approach to this problem that accounts seriously for both the First Amendment and general rights under Equal Protection.