Claiming a religious right to discriminate is nothing new.
Once upon a time it was used to justify racial discrimination. Most recently we’ve been seeing the cry of “religious freedom” being used by businesses that don’t want to provide contraception to their employees and don’t want to serve or employ gay, lesbian and transgender people.
In Billings, the argument is being used by those who oppose a nondiscrimination ordinance that would prohibit discrimination based on sexual orientation and gender identity in housing, employment and public accommodations.
These arguments are bogus.
But just as courts have repeatedly ruled that religion can’t be used as a reason to permit racial discrimination, it is also an unconstitutional justification for discrimination against LGBT people.
The First Amendment provides two protections for religious freedom. It prohibits government from imposing religion and provides the freedom to worship (or not).
But this freedom to worship does not extend to businesses. Businesses are different from churches. They are commercial enterprises. And all generally applicable laws apply to businesses, including laws prohibiting discrimination.
The claim of religious discrimination being espoused by the Montana Family Foundation and other anti-gay groups and businesses is a false one. “Religious discrimination” suggests that businesses are being treated differently from other businesses, but that is not the case. They are being held to the same standard as everybody else. If it’s “on the menu” at a public business, all protected classes must have equal access to that accommodation.
Anyone who opens a business in Montana knows that they are required to provide their goods and services to the public without discriminating on the basis of race, sex, disability or religion. For instance, a child care provider can’t refuse a child because his parents are Hindu; a car dealer can’t refuse to sell a car to a woman because he believes woman shouldn’t drive; and an obstetrician can’t refuse to see a single woman because she believes premarital sex is a sin. The nondiscrimination ordinances in place in Missoula, Helena, Butte and Bozeman, and hopefully still in the works in Billings, simply add gender identity and sexual orientation to the list of protected classes.
There is a long history of the use of religion to discriminate in the United States, but while courts once ruled in favor of such arguments, they have since firmly denied the constitutionality of such opinions.
One key case in that history is Newman v. Piggie Park Enterprises.
A barbecue owner said ‘I refuse to serve Blacks. It’s against my religious beliefs.’ The 4th Circuit Court of Appeals ruled against him. Your religious beliefs don’t get to trump anti-discrimination laws. It was a watershed moment.
Religion is not an excuse for discrimination, pure and simple.
