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Preserving the public middle ground on religious liberty, LGBT issues

By: Jennifer A. Marshall
September 2, 2016 Updated: September 2, 2016 at 7:06 pm
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photo - Mourners gather under a LGBT pride flag flying at half-mast for a candlelight vigil in remembrance for mass shooting victims in Orlando, from San Diego, California, on June 12, 2016.  Photo courtesy of REUTERS/Mike Blake
Mourners gather under a LGBT pride flag flying at half-mast for a candlelight vigil in remembrance for mass shooting victims in Orlando, from San Diego, California, on June 12, 2016. Photo courtesy of REUTERS/Mike Blake 
(RNS) There will be no middle ground. That’s theologian David Gushee’s pessimistic outlook on the conflict between LGBT issues and religious freedom.


It’s certainly accurate to acknowledge a lack of theological middle ground on issues of marriage and sexuality. Despite government’s and many private groups’ embrace of a new sexual ethic, orthodox religious groups and believers continue to affirm that human beings are created by God male and female, and that marriage is the union of a man and a woman.

That lack of theological middle ground should cause everyone, on any side of these issues, to count the cost of losing our public middle ground and to redouble our efforts to preserve it.

After all, the United States was made for this. Our country’s Constitution and laws are designed to provide the public middle ground for us to peaceably coexist when issues arise on which we can’t find theological or moral middle ground. These constitutional and legal protections have guaranteed a public square free from coercion, so that the laws of the land do not threaten one’s primary allegiance to God.

This coercion-free public middle ground was affirmed by the Constitution’s Bill of Rights. The First Amendment’s guarantees of religious freedom and free speech have allowed for a diversity and vibrancy of religious practice unseen in other parts of the Western world today. The First Amendment didn’t protect just private worship. It guaranteed the freedom to exercise beliefs publicly.

Important legal precedents reinforced the principle of a noncoercive civic space by confirming individuals’ religious freedom in contexts like public schools and the workplace. As many have noted, religion is not like a coat that can be taken off at the door when entering a public space. For many Americans, it deeply forms our identity and shapes our lives.

By the late 20th century, leaders across the political spectrum recognized the need for greater legal clarity to maintain a coercion-free public square. With near unanimity, Congress passed the Religious Freedom Restoration Act in 1993. President Bill Clinton signed it, to the applause of everyone from the ACLU to the Southern Baptists. RFRA balanced the pursuit of the public interest with citizens’ religious freedom by insisting that government policy may only burden religious liberty for very serious reasons and as a last resort.

Throughout American history, our constitutional and legal protections have helped the country navigate conflicts over Quakers refusing to take up arms in wartime, Catholics sending their children to Catholic schools, Jehovah’s Witnesses objecting to taking oaths, and Sikhs wearing religious garb during military service, to name just a few.

Having peacefully resolved so many religious liberty challenges in our nation’s history, it would be a travesty to abandon these tools or to allow them to be buried under new “nondiscrimination” policies that coerce individuals and groups to violate their convictions. Whatever one’s views on marriage or sexuality, we should all be able to agree that no one should be coerced to violate their beliefs. To preserve the coercion-free public middle ground we have inherited, here are a few things we can do in the current debate:

Let’s ensure that photographers, florists, printers, and all expressive professionals — no matter what view they take on these controversial issues — are free to decline to use their talents to convey views with which they disagree without being fined, sued, or driven out of business because of that free choice.

Let’s defend the right of religious adoption agencies and other ministries to help neighbors in need without compromising the religious beliefs that drive their mission to serve their communities. This is hardly the time to decrease the diversity of providers for child welfare and other social needs.

Let’s defend doctors’ rights to use their best medical judgment and to exercise their religious freedom to refrain when asked to prescribe treatments or conduct surgeries to alter gender identity — doctors’ rights that are denied by the new Obamacare transgender mandate.

Let’s speak out against statements that mischaracterize sincere religious belief about marriage and sexuality as bigoted. When religious liberty policies are demeaned as “a license to discriminate,” let’s remind people of the law’s history of protecting religious minorities.

Public middle ground free from coercion is eroding quickly. We can and must change that.

(Jennifer A. Marshall is a Heritage Foundation vice president and the Joseph C. and Elizabeth A. Anderlik Fellow in the think tank’s Institute for Family, Community, and Opportunity)

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