Is it Religious Liberty or Discrimination? Yes.

State-level attempts at religious liberty laws pose difficult questions.


Once again Virginia lawmakers have passed legislation to protect religious freedom. Once again, Gov. Terry McAuliffe (D) will veto it. And so the debate goes on.

Supporters of such measures—which, in various forms, are being debated around the country—say they simply want to ensure that government does not force the faithful to violate the dictates of their conscience. Opponents retort that religious-liberty bills grant some people a license to discriminate.

Who is right? Both of them.

Many conservative Christians (and Muslims) sincerely believe gay marriage, among other things, is morally wrong. Forcing them to participate or endorse such practices is an affront to their most deeply held beliefs. So, they argue, they should not have to.

And in fact, some of them don't. Churches, for instance, are not obliged to host gay weddings and clerics are not obliged to officiate them.

It's another story for businesses such as photographers and bakeries that make wedding cakes. Three years ago the Supreme Court declined to hear a case involving Elane Photography, which had been sanctioned by New Mexico for turning down a request to photograph a same-sex commitment ceremony. Last year Colorado's supreme court let stand a ruling against a baker who refused to make a cake for a gay wedding.

Gay-rights groups and their supporters say such refusal is nothing but rank discrimination, similar to the discrimination against blacks in the Jim Crow South. That is not entirely correct.

If a gay couple goes to a bakery run by a conservative Christian in search of a dozen chocolate chip cookies, the baker will gladly oblige. Likewise, a religious photographer will be happy to take pictures of a same-sex couple's home so they can put it up for sale. The baker and the photographer are not refusing to do business with an entire class of people. They are refusing to participate in a certain type of activity.

In some cases, though, it's impossible to separate the two. Certain states let adoption agencies refuse to place children with same-sex couples, and several more are considering it. Allowing adoption agencies to exercise their consciences does authorize discrimination against an entire class of people. Many agencies are one-service shops. It's not as if an adoption agency can say, "We won't help you adopt a child—but can we interest you in a box of cookies?"

And in Oklahoma, lawmakers recently considered a sweeping measure that would let a wide range of individuals and groups "refuse to provide goods, services or accommodations to certain groups if they were following sincerely held religious beliefs or conscience … regarding marriage, lifestyle or behavior." Refuse to provide service to certain groups? That is indeed a license to discriminate.

But even more narrowly tailored measures, like the proposal recently passed here in Virginia, codify discrimination in another sense. The bill sponsored by Republican Del. Nicholas Freitas stipulates that no person shall be "required to participate in the solemnization of any marriage" or be penalized by the state for acting on "a sincerely held religious belief or moral conviction that marriage is or should be recognized as the union of one man and one woman."

In short, the bill carves out a special exception for religious belief in one very specific instance: gay marriage.

Yet people have intensely held religious beliefs about all sorts of things, not just gay marriage. So a bill that genuinely aimed to defend religious liberty would be much broader. It would stipulate that no person should be required to participate in any activity he or she finds objectionable—period. And it would stipulate that no person should be penalized by the state for acting on a sincerely held religious belief or moral conviction—period.

You can easily imagine the sort of difficulties to arise from a policy like that. Individuals could claim they have a religious aversion to paying taxes and obeying traffic laws—and that their consciences command them to play with high explosives in heavily populated areas.

Those sorts of concerns motivated the Supreme Court a quarter-century ago, in a case about two workers who were denied unemployment benefits after they got fired for using peyote in Native American religious rituals. The majority on the court held that "the right of free exercise does not relieve an individual of the obligation to comply with a 'valid and neutral law of general applicability.' " The author of that majority opinion was Antonin Scalia, otherwise deemed a saint by the religious right.

This does not exhaust the issue by any stretch. Religious people point out, correctly, that exercising their faith means more than simply going to church on Sunday. For many of them, it is an around-the-clock affair. And the insistence by some that people of faith keep their beliefs locked up inside a house of worship looks like a form of discrimination in itself.

On the flip side is another question: Why should religious beliefs receive special deference? People can have intense moral convictions without God—and they deserve consideration, too.

There seems to be no neat and tidy solution to all of this. If you run across one, drop a note to the Supreme Court. It will be grateful for the guidance.

This column originally appeared at the Times Richmond-Dispatch.