Huston III: Who Decides and in What Forum?

March 30, 2015

For the use of the membership only; not for duplication, distribution or quotation without permission of the author.

by Tom Charles Huston

Rep. Ed DeLaney (D-Indianapolis) articulates the Democratic case against the religious-freedom statute in a temperate and reasoned Facebook post while professing his own commitment to defending “anyone’s right to their belief and any church’s right to exercise its own creed.” It is this sort of assurance that best explains why advocates of the religious-freedom statute believe it is necessary.

No one doubts that as long as the First Amendment survives Democratic attempts to gut it, no unit of government is going to force anyone to profess a belief contrary to his own or deny a religious congregation the right to exercise its creed within the confines of its sanctuary. DeLaney’s professions of support for religious liberty are sincere but myopic. He ducks every issue that is fundamentally in play in the current discussion about religious liberty.

How, for example, would Representative DeLaney answer these questions (assuming for our purposes that the individual or church involved has a sincere religious conviction that the only legitimate marriage is one between a man and a woman)? May the state compel:

More broadly, may the expression of a religious belief (i.e., that same-sex marriage is morally wrong) under any circumstance be grounds for a finding of discrimination under a human-rights ordinance? Would the exclusion of gay couples from a church-sponsored social function constitute discrimination under such an ordinance? With respect to all the foregoing questions, who decides and in what forum?

The truth that critics of the religious-liberty law want to avoid is that many people have strong religious convictions on issues raised by the assertion of gay rights that they do not have with respect to the claims of other protected classes under human-rights ordinances. No human-rights agency today has to deal with claims of religious liberty in the context of traditional categories of discrimination. It is only in the context of sexuality that these claims arise, and because these claims are plausibly within the scope of rights protected by the First and Fourteenth Amendments, they present difficult issues for which more precise and clear rules ought to be brought into play.

I have seen it remarked in several places that courts don’t need to be told by legislatures how to resolve these cases — that is the business of judges. This is simply untrue: legislatures routinely establish rules of construction for judicial interpretation of statutory law. Many of our most common “rights” exist by virtue of statute, not as a result of our Constitution. A discriminatory act may be constitutional yet violate a statute or ordinance. The role of a court in construing a statute is to determine the intent of the legislature, and it is perfectly logical for the legislature to give the courts guidance on how to do so.

I have focused here on questions involving gay rights because the thrust of the attacks on the religious-freedom law are predicated on the assumption that it is a license to discriminate against gays. As I have written repeatedly, I believe that the critical issues of religious liberty that we will face in the future will be peripheral to gay rights, but you have to address the charges made by your opponents today, not those you ultimately expect them to make tomorrow.

These opponents assert that all persons engaged in commerce must by their conduct acquiesce in the moral equivalency of decidedly different forms of marriage. Not only must they so acquiesce, they must personally participate in marriage ceremonies to which they have sincere religious objections. To object to this coerced participation on the grounds that it constitutes an infringement upon their liberty is itself deemed an act of discrimination in intent and purpose.

In the 16th century, people who dissented on religious grounds to the dictates of government were put to the stake. Today, they are put out of business.


HOW BIG OF A GAY DISCRIMINATION PROBLEM do we have in Indiana? Numbers are hard to find because gays are not a separately protected class under state law, and only some of our municipalities have human-rights ordinances that include within their scope discrimination based on sexual orientation or gender identification.

Indianapolis prohibits discrimination against gays, as I noted in some detail in an earlier post. According to information from the city department that enforces the ordinance, over the past three years 37 complaints of discrimination have been filed with the city in which sexual orientation or gender identity (or both) were listed as a basis for the complaint (although in some instances other grounds were also listed such as race, disability, etc.).

The city has not released information on the disposition of these complaints (dismissed, mediated, etc.) so it is not possible for me to evaluate the merits of the claims. The numbers, however, are interesting even if we assume that every one of the complaints had merit (which is unlikely because a majority of EEOC complaints are dismissed on the merits).

Prior to the adoption of Indiana’s religious freedom law, Indianapolis experienced approximately one reported instance a month of anti-gay discrimination – this in a community of 852,000 people with the largest gay population in the state. Of course, it is not unreasonable to assume that, for every reported incident, there may have been one or more that went unreported. My guess is that unreported incidents with merit would not exceed by much the number of reported ones that were deemed unmerited, but I have no evidence to support that assumption. Still, let’s assume that unreported cases are four times as likely as reported ones (which seems extreme given the sensitivity of gays to acts deemed discriminatory and the publicity that the anti-gay discrimination ordinance has received in the gay media). If such were the case, however, once a week a gay or lesbian in Indianapolis is discriminated against. Considering the frailty of the human condition, this hypothetical level of self-perceived discrimination in a city the size of Indianapolis does not constitute — in my estimation — a hate wave, although it would certainly be lamentable if it in fact existed at this level.

Opponents of the religious freedom statute appear to believe that there are all sorts of religious fanatics anxiously waiting to engage in acts of anti-gay discrimination under the color of law. I have two problems with this scenario: first, there is no evidence that we face a gale of heretofore unleashed discriminatory practice and, second, critics have not cited a single instance in which a human-rights ordinance affording protection to gays has been overridden by a state religious-freedom statute in one of the nineteen states that have such laws.

It is much easier than I thought to whip up a frenzy in our state. It’s scary, really, and the rantings of the mob lead me to believe that religious liberty is more endangered by its self-professed friends than by its indisputable enemies.

Tom Charles Huston, A.B., J.D., an adjunct scholar of the Indiana Policy Review who resides in Indianapolis, served as an officer in the United States Army assigned to the Defense Intelligence Agency and as associate counsel to the president of the United States.



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