You may have heard Governor Pence, in his State of the State address, challenging all of us to find a way in which religious liberty can co-exist alongside civil rights laws, including civil rights laws updated to protect gay and transgender Hoosiers.
The American Civil Liberties Union has fought long and hard for religious liberty for all faiths for nearly 100 years and we believe that freedom of religion and freedom from discrimination, both protected by the Constitution, can coexist.
As a nation grappling with how to address discrimination in a diverse society, we have decided again and again that, in this narrow conflict, freedom from discrimination prevails.
Every American enjoys broad and important religious liberty rights. For instance, clergy and faith leaders, not the government, determine which marriages their religious organizations officiate and bless. The ACLU would defend the constitutional rights of any pastor, rabbi, imam, priest or other faith leader if government tried to dictate the nature of their religious rites or ceremonies. The free exercise clause of the First Amendment protects those faith-based decisions. Further, existing Indiana civil rights law preserves full discretion for religious organizations in their hiring decisions. These current protections for religious organizations will not change.
Now, on the threshold of a new General Assembly session, the question is how should gay and transgender Hoosiers be treated in the public square and marketplace, where a potential conflict between the freedom to exercise one's religion and the freedom from discrimination may arise. Our legislators are asking themselves whether government can narrowly tailor enforcement of civil rights protections to limit the intrusion on religious liberty.
These questions may be difficult. Fortunately, these questions are not new. The longstanding answers are currently reflected in our civil rights laws.
Recognizing both the right to freedom of religion and the right to freedom from discrimination, civil rights laws strike a careful and wise balance. That balance protects the faith-based decisions of religious organizations but does not allow individuals to bring their beliefs about racial minorities, women, or other protected groups into decisions about employment, housing or public accommodation, no matter how deeply felt those religious beliefs may be.
Americans and Hoosiers have enacted our civil rights laws over time to protect individuals and groups from discrimination based upon who they are. And each time we have added civil rights protections to our laws – first for race then for others such as gender -- we have rejected the notion that business owners may refuse, on religious grounds, to serve someone.
The same balance should be struck now in Indiana with respect to gay and transgender Hoosiers. I recognize there are many individuals who have deeply held religious beliefs concerning sexual orientation and gender identity, just as there are many individuals – from a variety of religions and faith traditions – who hold firm beliefs on the role and behavior of women.
But, historically, as a nation grappling with how to address discrimination in a diverse society, we have decided again and again that, in this narrow conflict, freedom from discrimination prevails. Our laws do not allow a shop owner to refuse to serve me unless I cover my head with a bonnet or a scarf, lower my hemline or am accompanied by my husband. Nor should our laws allow a shop owner to refuse to serve anyone because of who they are or whom they love.
So, can religious liberty and civil rights laws co-exist?
Yes, they can. They already do. And the same balance of rights should be struck for gay and transgender Hoosiers.
Jane Henegar is executive director of the ACLU of Indiana