National Edition

Liberty versus liberty: religious freedom bills trouble gay rights supporters

Published: Tuesday, Feb. 25 2014 10:25 a.m. MST

Pizer said that to oppose bills such as Arizona's is not to oppose religious liberty: "To say no to religious discrimination is not discrimination. We all need to live together, and the marketplace needs to be open to everybody," she said.

Finding middle ground

Other attorneys and scholars want states to find a middle ground. Douglas Laycock, the Robert E. Scott Distinguished Professor of Law at the University of Virginia Law School, said from Charlottesville, Va.: "On the more specific issue of objections to participating in or facilitating same-sex marriages, I think the small entrepreneur who's providing services, like the wedding photographer in New Mexico — they ought to be protected."

Laycock is part of a group of legal scholars promoting bills that would protect religious rights for "businesses of five or fewer employees," because he said these were firms in which the owner — whose beliefs might come into play — is likely to be directly involved in providing the service. He said such an exemption would apply only in areas where a similar service was available from other providers.

Robin Fretwell Wilson, a University of Illinois Law School professor and director of the school's Program in Family Law and Policy, told the Deseret News it's essential to balance rights on both sides of the equation.

"You're not going to and should not get protection in the law to treat people differently," Wilson said. At the same time, "Marriage is not like a hamburger or a taxi ride; it's a deeply intimate service that's religiously infused."

She added, "This is one of the places where the law can temper bad impulses. We don't want to run religious people out of the public square, nor do we want to drive lesbians and gays out of society."

Stephen Prothero, a professor of religion at Boston University, said in a telephone interview that the issue of baking cakes or taking photos is not, in his view, one where religious exemptions can be claimed. He compared the issue to decades-earlier claims that racial discrimination was sanctioned by some peoples' readings of the Bible. Once government ruled such discrimination invalid, the argument, he said, became irrelevant.

"If the state or federal government decides this discrimination is not constitutional, the issue of conscience is not going to carry the day," Prothero said. "That's what all religious liberty law (cases) at the Supreme Court level (are) all about: balancing the rights of the individual versus the state."

Attorney La Rue, however, suggests the issue isn't as cut and dried: If a religious baker "believes that baking that cake will cause them to sin against their God, then it is a crushing blow to their dignity to force them to bake that cake," he said.

What's more, he asserted, alternative suppliers are generally available: "We at ADF represent approximately 10 clients in active cases involving these types of issues," La Rue said. "And in each of those cases, the person who is suing them found the service that they wanted, at the same or cheaper price, and have testified that in each case they were pleased with the services they found."

Email: mkellner@deseretnews.com

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