When is religious liberty a fig leaf for homophobia?

This article appears as it was originally published on December 7, 2022.

I am always surprised that nearly all religious liberty cases in the United States these days seem to focus on denying LGBTQ people things that most other Americans can reasonably expect: a website designed, a cake baked, a job offered.

A case argued before the Supreme Court this week, which focused on a website designer who refuses to design sites for same-sex marriages, is a case in point. Lorie Smith has stated that she is happy to serve LGBTQ people but not create sites for their weddings.  (It’s worth nothing that Ms. Smith has never been asked to make an same-sex wedding website; she is arguing for the right to refuse to do so.)

But why do so few cases focus on more fundamental religious beliefs that could offend people’s sensibilities even more than same-sex marriage does?

I am not arguing anyone ever should do this, but a Christian web designer could easily say, “I’m not creating a website for a non-Christian religious ceremony (e.g., a bar mitzvah, a Buddhist ritual, a Hindu wedding) because the customer doesn’t believe in Jesus and I cannot support that.”

In other words, a merchant providing a service related to a non-Christian ceremony could decide that this was giving tacit approval to non-Christian beliefs. Taking it one step further, serving non-Christians in any capacity could be construed as support for a position they disagree with, or as an offense to one’s religious beliefs.

Why do few merchants take this position? Why is what offends so rarely about fundamental beliefs about Jesus, or God more generally (say, the Trinity, the Incarnation or the Resurrection) and more about the activities of LGBTQ people? What is more problematic for a devout Christian merchant: a person who marries someone of the same sex or a person who denies that Jesus Christ is Lord? 

Why is what offends so rarely about fundamental beliefs in Jesus … and more about the activities of LGBTQ people?

The response is often, “Those ceremonies you’re using as an example—the bar mitzvah, the Buddhist ritual, the Hindu wedding—don’t offend people’s religious sensibilities like same-sex marriage does.” But why not? What offends a particular Christian merchant or businessperson is highly subjective, dependent on their own consciences.

Some might argue, “The web designer said she is happy to serve LGBTQ people, but not create something for their wedding.” But what about the merchant who doesn’t want to serve a married LGBTQ person at all? What about the business owner who says, “Serving a married LGBTQ couple would compromise my beliefs because I’m against same-sex marriage”? That is clearly illegal.  But, again, what offends someone’s conscience is highly subjective.  

“You’re still missing the point,” some might say. “It’s not about who they are, but their activities.” But again, which activities offend someone depends on a person’s conscience. Currently, same-sex marriage offends. In the future, other activities might bother people. If you’re a U.S. Christian who is against interracial marriages (and more Christians oppose this than you might want to think), could you decline to create a website for the marriage of a mixed-race couple?

Taking it a step farther, a devout Catholic might refuse to bake a cake for someone they knew was divorced or living with their partner, on similar grounds.  A Christian doctor could even refuse to prescribe potentially life saving drugs to gay patients, as was recently argued in one case. Which activities offend, and perhaps more importantly, the perceived level of participation in, and approval of, those activities, depends on the merchant. 

Let’s use a thought experiment that shifts the discussion away from same-sex marriages. What about a website designer who refuses to create a website for a gay-straight alliance meeting at a local high school? No question of marriage is intended or implied for the high school students, who are still teenagers and unmarried. A designer could say, “I don’t like this after-school activity, because it advances the ‘gay agenda,’ which I reject. Therefore, I’m not creating a website for this activity.” 

Most U.S. Christians have realized that simply because something offends their own deeply held religious beliefs, they cannot legally refuse to serve people from a different religion or people who practice things with which they disagree.

Most U.S. Christians have realized that simply because something offends their own deeply held religious beliefs, they cannot legally refuse to serve people from a different religion or people who practice things with which they disagree.

But in the case of designing websites, baking cakes and, more importantly, employing people, the religious liberty argument is increasingly deployed. It would make more logical sense (and, again, I’m not suggesting they do this), if Christians merchants simply said, “I refuse to serve non-Christians.” Or if employers said, “I refuse to hire non-Christians.” But they don’t, thank God.

Why not? Mainly because they understand the legal requirements for public accommodation and against discrimination. They also know that the United States is a pluralistic nation with many different religious beliefs and practices. More to the point, they know and like non-Christians. But when it comes to LGBTQ people and their lives, that tolerance dries up. It is their activities that seem to trouble some U.S. Christians almost exclusively. 

Religious liberty is an essential element of our nation’s laws. It is important—and necessary—to allow people to express their religious convictions in public. But the protection of religious liberty should not be used as a fig leaf for homophobia.