Sara Love in a Baltimore Sun piece makes the point that it is, in fact, legal for religious schools to discriminate based on their religious beliefs. She cites the expulsion of a gay student and a girl who had said that she might be a lesbian. Additionally, a teacher was fired for marrying her partner, a woman.
In each of these cases, the American Civil Liberties Union was called in to assist the victims but was unable to do anything. Despite my personal convictions that these actions are not justified from either a religious or moral perspective, the fact is such discrimination is legal for religious institutions.
It seems that religion already occupies a privileged position in our society, so is there a need for additional laws protecting it? Religion already enjoys special treatment in a number of areas, including its tax exempt status. Time magazine has an article that focuses on the politics and divisiveness of the current interest in such legislation. There is little effort to actually determine what kind of protection is needed and for whom. In fact, the impetus for the Indiana law did come from those who specifically wanted to discriminate against gays and lesbians, especially those in same-sex marriages.
The problem is real, and the issues involved are complicated, but it is difficult to see how we get to a meaningful discussion on the matter. Edward Correia suggests that legislation should be specific and the courts should stay out of the process altogether. I'm not sure about that suggestion, as this does seem to be an area where the courts have an important role in determining what is and is not constitutional.
Andrew Koppelman in Commonweal focuses on defining what religion is. He is interested in balancing the religious interest with that of the state. Who and what constitutes religion? Some of the discussion can seem a little esoteric, and while it may be too much to say we know it when we see it, we can say that religion is more than an individual looking for special treatment based on his or her personal beliefs.
The religious liberty law passed by the Clinton administration in 1993 grew out of the Supreme Court denying Native Americans the right to use peyote in their religious ceremonies. As Correia notes, the law actually changed the standard by which the exercise of religion was judged. Any law restricting religious liberty must now meet a "compelling interest" test. Thus, the government cannot burden religious liberty unless it has a compelling reason and burdens religion in the least possible way.
Some previous examples of attempting to balance the rights of individuals and the rights of the religious community include the Supreme Court refusing to allow the practice of polygamy among Mormons. It just appeared to be too far out of character with what could be acceptable in our society. Another issue involved the Amish community traveling on our highways at night and how to balance their rights with the need for safety.
Looking at the context of the laws that were debated in Indiana and Arkansas, I believe the 1964 law regarding public accommodations is relevant. One example often mentioned is baking a cake for a gay wedding. We went through this on civil rights. The argument given was: "I own this store, and if I don't want to serve black people, that is my right." The law and the courts said no, it is not your right. If you open a store or provide a service to the public, you serve all of the public. You don't pick and choose whom you serve.
My suspicion is that too often the religious community sees their position as primary. Their stance is supported by their religious convictions and is thus somehow superior to any other point of view. They therefore fail to see the need for balance; that is, the need to protect the rights of others with whom they disagree.
I believe our own Catholic bishops have too often been the best example of this. They appear unable to recognize that their demands at times infringe on the rights of others who don't subscribe to the same beliefs the bishops hold. This approach is just not acceptable in our multicultural society.
Religion does hold a special place in our society. It deserves protection and freedom to exercise its beliefs. Yet the very essence of freedom under our Constitution is about the competing rights of groups and individuals. As Koppelman notes, it is a mistake to think that the religious perspective is always the correct one, just as it would be a mistake to assume that the state's interest should preclude any accommodation with religion. It is that balance that eludes us and will probably continue to do so as long as the arguments being put forward are coming from the most strident voices on each side of the issue.