It has been a busy few weeks for claims of religious exemption in North Carolina.
The 4th Circuit Court of Appeals heard arguments in a challenge to Senate Bill 2, which allows magistrates to refuse to perform constitutionally protected same-sex marriages. The statute assures judicial officers “the right to recuse from performing legal marriages based upon any sincerely held religious objection.”
The court below had dismissed the action for technical reasons, finding the particular plaintiffs lacked standing. But the trial judge warned of future, more fruitful challenges, saying: “A law that allows a state official to opt out of performing some duties of office for religious reasons while keeping it a secret is fraught with potential harm of constitutional magnitude.”
He could have gone further. Government officials can’t be excused from the obligations of the 14th amendment. Even if they really, really believe it vital to deny full equality to some citizens. And the statute, by its terms, would also provide refuge to magistrates with “sincerely held” objections to interracial marriage.
Sen. Phil Berger and his colleagues may object to such an attempted extension – arguing they only meant to authorize officials to show disdain for gay Tar Heels, not black, or Latino or white ones. But the language is general and unqualified. The Supreme Court has also foreclosed arguments that some religions are more appropriate than others or that discrimination against gays is more palatable than discrimination based on race.
From the other end of the political spectrum, over Memorial Day, the congregation of St. Barnabas Episcopal Church in Greensboro offered sanctuary to Juana Ortega, a mother of four, grandmother of two and wife of a U.S. citizen who has lived here since fleeing Guatemalan violence 24 years ago. The church voted to offer Ortega shelter rather than see her separated from her family – citing Leviticus’ dictate that “you shall love the alien as yourself.” The rector explained Ortega “is a child of God and we will give her shelter until (the government) drops her deportation order.”
Weeks earlier, Montreat College exercised a more traditionally recognized religious exemption. The Christian college, long associated with Billy Graham’s family, required its faculty and staff to sign a document affirming “the sanctity of marriage between one man and one woman” and the “worth of every human being from conception to death.”
Some refused to sign, effectively ending their employment. Students protested and one critic wrote in the local paper that Montreat’s mandate was “alarming and disgusting, treating LGBT Christians as outside the fold.” Of course, such an oath would be forbidden at a public university. But a campus spokesman explained, accurately, that “as a Christian institution of higher learning, U.S. law protects the freedom of institutions like ours to hire and employ based on sincere religious belief.”
And, finally, at the brutal edge of the frame, a mistrial was declared in a Rutherfordton case charging a minister with kidnapping and beating a congregant “to expel his homosexual demons.” As the victim was leaving a prayer service, two dozen church members purportedly surrounded, “punched, slapped and choked him for two hours.” The preacher said God told him “there was something wrong” in the 23-year-old’s life. The young man thought he was going to die. The prosecutor told the jury, “you don’t get to assault people, hurt people and confine people in the name of religion.” Sincere or not.
Now, like many, I applaud some of these claims of religious conscience (at least one) and abhor others. That’s not my point. We regularly see, in public discourse, a claim – as the Alliance Defending Freedom puts it – that an American “should never be forced to act in a way that violates religious conscience.” And as North Carolina can attest, purported claims of religious freedom have become the new and preferred front in the continuing effort to suppress the full dignity of lesbian, gay and transgender people.
But it’s not really possible, in a diverse democracy, to consistently place the claims of religion above the claims of law.
First, the array of proffered religious liberties is boundless. The Supreme Court itself has entertained cases involving faith-based commands to engage in polygamy, smoke peyote, conduct live-animal slaughter and refuse the draft, taxes, vaccinations, photo IDs, social security and school past the eighth grade.
Second, you cannot, in a system of religious freedom, allow government to sort between good and bad, worthy and unworthy, religious claims. Were a public official to undertake such a classification, he would violate the central premise of the First Amendment.
Third, most free-exercise claims are arguments for special exemption from admittedly constitutional rules of general application. Amish plaintiffs didn’t say truancy laws were impermissible, just that they couldn’t be applied to them. Bob Jones University didn’t argue civil rights laws were void; it demanded immunity from enforcement. They are, at bottom, pleas for special rights. As a result, they pose stark tension with the rule of law.
Of course the answer for free-exercise zealots, including those in the General Assembly, is typically a pragmatic one. Accommodate my religion. Don’t bother with the rest.
Gene Nichol is the Boyd Tinsley Distinguished Professor at UNC-Chapel Hill.