These cases are different from Cochran’s, but they do contain a common thread — government officials demonstrated substantial intolerance in the name of “inclusion” and rather than seeking solutions that allowed each member of the community to exercise their liberty (to enjoy rights to cakes and conscience, for example), they took sides against Christians, using their power to send a clear message: Traditional Christianity is incompatible with the progressive state.
That is not a decision the Constitution empowers them to make. Chief Cochran’s case illustrates an emerging First Amendment truth. The personal cost of state bigotry is high, and justice demands that the government pay for its sins.
The classic American response to deep conflicts like that between gay rights and traditional religious faith is to protect the liberty of both sides. The very arguments that underlie protection of same-sex marriage also support strong protection for religious liberty. Religious believers and same-sex couples each argue that a fundamental component of their identity, and the conduct that flows from that identity, should be left to each individual, free of all nonessential regulation.
When religious and LGBT interests conflict, the church advocates civility, protection of core rights for all, and reasonable compromise, with the goal being pluralism rather than domination by either side. The church joins this brief out of a conviction that this court must rigorously protect basic First Amendment rights to free speech and the free exercise of religion to safeguard the conditions that make such pluralism possible.
Believing in basic fairness for all, the Church has openly encouraged and participated in legislative efforts to secure essential rights for LGBT citizens while protecting religious freedom.
The nation’s laws can protect both religious liberty and the rights of LGBT citizens. That is the meaning of fairness for all.
In short, laws on sexual orientation and gender identity seek to regulate decisions that are best handled by private actors without government interference. They disregard the conscience and liberty of people of good will who happen not to share the government’s opinions about issues of marriage and sexuality based on a reasonable worldview, moral code, or religious faith. Accordingly, these laws risk becoming sources of social tension rather than unity.
The Heritage Foundation has long opposed the expansion of antidiscrimination laws to elevate “sexual orientation” and “gender identity” as protected classes. Where enacted, these laws—known as SOGI laws—are frequently used as swords to persecute people with unpopular beliefs, rather than as shields to protect people from unjust discrimination.
Part of the problem with these laws is that they treat reasonable actions as if discriminatory. So, for example, if a baker creates custom wedding cakes for marriages, but won’t design or create them for same-sex unions, that’s considered “discrimination” on the basis of “sexual orientation.” If a Catholic adoption agency works to find permanent homes for orphans where they’ll be raised by a married mom and dad, but won’t place children with two moms and no dad, or two dads and no mom, that’s considered “discrimination” on the basis of “sexual orientation.” If a small business provides health insurance that covers a double mastectomy in the case of breast cancer, but not for women who want to transition and identify as men, that’s considered “discrimination” on the basis of “gender identity.” If a school provides separate bathrooms and locker rooms for male and female students, but won’t let male students who identify as women into the female places, that’s considered “discrimination” on the basis of “gender identity.” These reasonable policies on disputed questions should not be penalized by the government as if discriminatory.
Compelling governmental interests can at times trump fundamental civil liberties, but laws on sexual identity and gender identity do not pass this test. Rather, they trample First Amendment rights and unnecessarily impinge on citizens’ right to run their local schools, charities, and businesses in ways consistent with their values. These laws do not protect equality before the law. Instead, they grant special privileges that are enforceable against private actors.
These laws would impose ruinous liability on innocent citizens for alleged “discrimination” based on subjective and unverifiable identities, not on objective traits. They would further increase government interference in markets, potentially discouraging economic growth and job creation.
In essence, elevating “gender identity” to a protected class across our federal antidiscrimination laws could impose a nationwide transgender bathroom policy, a nationwide pronoun policy, and a nationwide sex-reassignment health care mandate.
These cases are different from Cochran’s, but they do contain a common thread — government officials demonstrated substantial intolerance in the name of “inclusion” and rather than seeking solutions that allowed each member of the community to exercise their liberty (to enjoy rights to cakes and conscience, for example), they took sides against Christians, using their power to send a clear message: Traditional Christianity is incompatible with the progressive state.