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writing for godot

LGBTQ Rights and Religious Freedom

Written by sjtpm   
Tuesday, 05 June 2018 05:16

By Steven Jonas, M.D., M.P.H.


The original version of this column was published on OpEdNews the day after the Supreme Court heard the arguments in the “Baker’s Refusal” case.  It seems appropriate to republish it today, the day after the handing down of the Court’s decision in that case.  Writing for the majority, Justice Kennedy tried to make it clear that the decision in favor of allowing discrimination against a certain identity group in a public business was not to be taken as precedent.  That it really revolved around what Kennedy and his six colleagues saw as the impoliteness towards the practice of religious authoritarianism/exclusion on the part of one member of the Colorado Civil Rights Commission.  Oh dear!  But of course, the Religious Right is taken it as a sanction for discriminating, and they will do it to a fare-thee-well.  As a practical matter, as I put it in a tweet yesterday: thepoliticaljunkies‏ @tpjmagazine 14m14 minutes ago: … Supreme Court has legalized homophobia and discrimination in public places, based on "religious belief" (sic). Next on the docket? Discrimination against persons of color, Muslims, Hindus, Jews, and etc., for the same reason. Religious War, here we come.”

And now to the original column.


Today, December 5, 2017, the Supreme Court heard the arguments in the "Baker' Refusal" case. In simple terms, the case is about the challenge of a (can we say it?) homophobic (few others do, but I will) baker who refused to make a wedding cake for a gay couple. This led to his being charged with a violation of an anti-discrimination law in the state of Colorado. The baker maintains that his "religious beliefs" (really his homophobia, but nobody wants to talk about that) about the sinfulness of homosexuality and in particular the practice, now legal throughout the land, of same-sex marriage. He argues that because the institution of same-sex marriage (now established as the law-of-the-land) violates his religious beliefs, he should not be subject to the Colorado anti-discrimination statute.

The baker lost before the Colorado Civil Rights Commission, the courts in Colorado, and the Federal Courts through the Court of Appeals level. A basically right-wing Supreme Court, with a new far-right member, will for the indefinite future now decide a case that will set the standards for possible public discrimination, not only against the LGBT community, but any other one to which some "religious" person might find some "religious" objection. And of course, the homophobic Trump Administration and its "Justice" department are supporting the baker.

Now the standard way for approaching this case for the pro-LGBT rights forces is that the prohibition of discrimination, in the public marketplace, based on various identifying features of various persons, is prohibited by the state law in Colorado and that the Colorado Civil Rights Commission has the power to enforce the law, which stands against such discrimination, in matters covered by the law. In other words, for LGBT side, it is simply a matter of prohibiting exceptions to a civil discrimination law, based on equality before the law. The baker and his supporters claim that their religious beliefs, and their behaviors based on those religious beliefs, are in control here, as matters of "free speech" and "religious freedom."

In essence, their argument is that their religious beliefs are controlling (click here) for them for certain of their behaviors, and thus over-ride any interest of the State of Colorado in outlawing discrimination in the public square. Thus, they contend that their "religious freedom," couched in terms of "free speech," permits them to openly discriminate in the public square, against any persons they choose to discriminate against, based, I suppose, on any characteristic of those persons they decide offends their "religious sensibilities."

In my view, the issue here goes well beyond the validity of a state anti-discrimination law and whether a given person, operating in the public square, can choose to disobey it based "free speech" and "religious freedom." As I wrote some weeks ago (modified here to deal with the LGBT-rights issue), in dealing with the abortion-rights issue and "freedom of religion:”

The position of the anti-LGBT-rights forces is based exclusively on the religious concept of "what is 'normal' sexual identity and behavior." And it is a religious concept (just like "life begins at the moment of conception" is a religious concept). In fact, to support it, the anti-LGBT rights movement most often cites the "inerrant word of God" as found in the Bible. They make no bones about the religious source of their position. There were certainly plenty of gay people around in Biblical times. Otherwise the homophobes who were around then too would not have felt the urge to put their proscriptions into the Biblical text.

That the version of the Bible most often cited by the anti-LGBT-rights forces is the King James version, an English translation created in the early 17th century by a 52-member committee of scholars and theologians, is a point often missed by the "inerrantists" (and their critics as well). If the King James version were to be regarded as "inerrant," one would have to assume that "God" spoke through every one of them. And, of course, what does that say about all of the other versions, appearing in numerous translations from the original Aramaic, Hebrew, Greek and Latin? It should also be noted that the man who made the first English translation of the Bible, one William Tyndale, in 1536 was burned at the stake, in England, for having the temerity to do so.

What the Republican Religious Right (and it is the Republican Religious Right, to be sure) wants to do is right out of the 16th century: put the power of the State behind one particular set of religious doctrines (some would call them dogmas). Beyond the matter of whether discrimination based on personal identity can be prohibited by the law is this fundamental question: are religious fundamentalists going to be allowed to set social policy on one of the oh-so-many matters of personal being and belief, based solely on the religious dogmas that they personally adhere to. Of equal importance is that fact that many LGBT people are themselves religious, and within their religious belief is the doctrine that homosexuality is a perfectly normal state of human existence. Thus, they simply have a different set of religious beliefs than do the Republican Christian Rightists, the Fundamentalists, and the Dominionists (like the current Vice-President of the United States).

And so, as in the case of fighting for abortion-rights, this is truly the fundamental issue: can the State, in the guise of "protecting religious freedom" endorse one religious view as against another. In the case of abortion, as I pointed out in the previous column, the Republican Religious Right wants to use the force of the criminal law to enforce one religious view (and it is always a religious view, told to us most forcefully by its holders) of "when life begins" as against another. In the case of the rights of LGBT-people, the Republican Religious Right wants to use the civil law to make them into second-class citizens --- that is outside the protection of a civil law against discrimination in the public square.

In terms of state support, and enforcement, of one religious view as against certain others, the Republican Religious Right would take us back to the 16th and 17th centuries when, after the onset of the Protestant Reformation, religious wars were fought all over Europe over such questions of religious doctrine, religious freedom, and the Role of the State in matters of religion. So, the Cake Baker's case goes well beyond the concept of what exactly is the relationship between a given religious belief, (and as in the matter of abortion-rights it is always a matter of belief) and potential discrimination in the public square. Should it be state-sanctioned? Indeed, the State and Religion: a very dangerous, often lethal, combination.


This column, originally published at:, as noted in the text is based in part on a previous OpEdNews column: "Losing the Abortion Wars,” also published at RSN/Writing for Godot, your social media marketing partner


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0 # kyzipster 2018-06-06 10:52
I was truly surprised by the ruling. It will be a mark of shame on the Supreme Court down the road imo, like the 1986 ruling in Bowers vs Hardwick when state laws criminalizing homosexuality were upheld, making homosexuals sex criminals. That was shocking. A case where two men were arrested in their bedroom for having sex while having sex. It wasn't overturned until 2003 in Lawrence vs Texas, another case where two men were arrested while having sex in their home. Scalia's dissenting opinion is a religious based, homophobic rant void of logic and legal justification, history will not treat him well.

People get offended when comparing LGBTQ history to African American civil rights and that's understandable sometimes but it's difficult to not mention the civil rights era because there are so many similarities, legally. Few people seem aware of what many individuals have gone through in recent history. Extreme marginalization , lives destroyed from getting arrested and humiliated in the press, many other scenarios. My partner in my 20s was arrested for simply hanging out with other gay people in a park. Threatened with a sodomy charge so he would agree to plead guilty to a lesser charge. There was absolutely no sympathy in the press or the culture at large, no way to fight it really.

The slavery comment seemed to offend the court. It's an apt comparison, not comparing the gay experience to the brutality of slavery, comparing the Christian justification for bigotry.
+1 # laborequalswealth 2018-06-06 11:13
First, the baker - Clark - claimed that putting together flour, sugar and eggs for a same sex marriage violated his belief in "Biblical marriage" between "one man and one woman."

Apparently Clark is so clueless about his own religion that he hasn't even read Gensis, which is a bonanza of POLYGAMY, NOT "one man and one woman" marriage.

Second, the "hostility" toward religion constituted a couple FACTUAL comments by a Commissioner about how religion has been used as an excuse for slavery, the subjugation of women, etc. Now telling that TRUTH about religion is considered "hostile."

Finally, this intellectually bankrupt Court cited two other cases before the Commission where the bakers prevailed because they would not put offensive MESSAGES on their cakes. Clark was NOT discriminating on the basis of the cake itself but WHO was going to use the cake. It's hard to find anything MORE discriminatory than that.

But then we have an Orwellian Court that decrees that money is speach, corporations are people, and a profit-making business enterprise can have a religion.

With this case, SCROTUS (sic) has moved from "1984" to "Alice in Wonderland."
0 # kyzipster 2018-06-06 14:51
"this intellectually bankrupt Court cited two other cases before the Commission where the bakers prevailed because they would not put offensive MESSAGES on their cakes."

I found this part of the justification to be amazing. They seem to be saying that hate speech or more mildly, prejudiced speech, is the equivalent of religious expression, that's how I interpret it.

People who order a cake with an anti-gay message are not part of a protected class under the law, they're not Christians asking for a Christian themed cake. LGBTQ people are a protected class under Colorado law. To suggest that the CO commission was using a double standard boggles the mind.

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