The Christian Right claims that religious freedom depends on a religious refusal to bake a wedding cake. They also heavily supported laws prohibiting same-sex marriage. The “refused wedding cake” occurs in a for-profit secular activity. The laws prohibiting same-sex marriage directly interfered with the religious activity of MCC and other inclusive religions.
The Christian right wants to pit LGBT rights against their claimed “religious” rights. Therefore, it becomes important for the LGBT communities to understand religious freedom issues.
Unpopular opinions need more protection than popular opinions do. Similarly, stigmatized religious minorities need more protection than safe religious majorities do.
At least three religious minorities currently have contested religious freedom issues: Native American religions, Islam, and the Pagan revival. A fourth tradition, Santeria, has recently escaped from interference, at least in South Florida. Like LGBT identity, religious identity lacks outward markers.
Religious minorities face some of the same issues as LGBT people do. People from both groups can pass, and have complex, managed identities with disclosure issues.
The Christian calendar forms the basis for the standard U.S. work week and school calendars. Sundays, Christmas, and Easter are never workdays in the standard workweek. This creates problems for religious Jews, Muslims, Pagans, and other non-Christians. Some use their vacation days for their religious holidays. Christians do not have to sacrifice vacation days for their religious holidays. Requesting days off requires either disclosing or lying to follow your religious tradition.
The Native American Religions Traditions and the U.S. Legal Tradition
Some, but not all, Native American Tribes (Nations) historically had socially valued roles in which LGBT people could be comfortable. In 1990, LGBT Native Americans decided to use the English term “two-spirit,” as a pan-Indian term for these roles.
Many Native Americans today follow traditional religious practices. Three major areas of conflict occur between Native American religions and U.S. culture. First, some Native American religious practices fuse rite and location. Some religious rites can only occur in specific locations, which may lie outside of reservations. If these sites became disturbed or polluted, parts of Native American religion would disappear. Second, some sacred objects such as eagle feathers, involve endangered species. Third, some Native American religious practices involve ritual use of criminalized drugs such as peyote.
The current conflict with the Dakota Access Pipeline Project involves the fusion of rite and location. It will transport oil from North Dakota to Illinois, crossing two rivers. Members of the Sioux (Dakota) Nation charge that the pipeline will pollute those rivers and disturb their sacred sites. The Dakota have set up a Spirit Camp near the Standing Rock Reservation. After months of exchanging legal motions, Dakotas surged onto the construction site on August 16, 2016. Work has stopped on the pipeline.
Supreme Court rulings in the 80s and 90s narrowed earlier concepts of religious freedom. In one case, the Court defined a “substantial burden” as a fine, an imprisonment, or a benefit denied. The Court excluded pollution of sacred land from their definition of a “substantial” burden, even if that “insubstantial” burden caused parts of Native American religion to disappear.
The second case involved two members of the Native American Church. When drug testing found peyote in their system, the two were fired. The ingestion of peyote forms the central rite of the Native American Church, much as Communion does for Catholics.
The Court held that religiously neutral laws fail to violate the First Amendment. In order to avoid First Amendment Issues, the laws have to fulfill two criteria. The law has to apply to all citizens and fulfill a compelling state interest.
These two decisions produced an unusual bipartisan coalition. Congress passed The Religious Freedom Restoration Act (RFRA) in 1993. RFRA refined the concept of “strict scrutiny.” The government has to prove two things to avoid a violation of the First Amendment. The government, not the aggrieved religion, has the burden of proof. First, the law has to be necessary to further a compelling government interest. Second, the law must be the least restrictive method to achieve that interest.
RFRAs arose from these conflicts between Native American religions and the Federal Government. Now RFRAs form the legal basis of religious freedom law. Hobby Lobby used RFRA to challenge The Affordable Care Act (“Obamacare”). Twenty states have passed state RFRAs.
Recently, a Michigan Court ruled that a funeral home could fire a transitioning employee under RFRA. The court held that the government had failed to prove that an EEOC suit was the least restrictive means to enforce its compelling interest in protecting LGBT people from discrimination. While higher courts could reject this ruling, it stands for now.
While slaveholders prevented enslaved Africans from maintaining African customs and languages, some did survive. In the Caribbean and Louisiana, more African traditions survived by hiding within another religion. African traditions, beliefs, and practices became embedded inside a Catholic practice. Patron saints masked the god-like African Orishas.
In Cuba, these traditions have the name, Santeria. Cuban migrations have brought this hidden tradition to Florida. Some people into Santeria consider themselves Christians. Others consider themselves to be practicing a traditional African religion.
Santeria has different sub-traditions. While some sub-traditions have LGBT people in leadership positions, others are much less welcoming. Manny Tejeda-Moreno, PhD, a social science researcher focusing on religious discrimination, estimates that about 10 percent of all people into Santeria would identify as LGBT.
Santeria, a minority religion, is associated with a stigmatized group. Some people think of Santeria as a “lesser” religion, as they think of Africans as a “lesser” race. Cities enacted laws to bar Santeria practice within city limits. These laws targeted animal sacrifice. The Court decision of 1993 in Church of Lukumi Babalu Aye v City of Hialeah voided all such laws. After that decision, official harassment ceased.
Santeria can involve ritual animal sacrifices to improve someone’s relationship with an Orisha. These sacrifices occur rarely. Tejeda-Moreno described this discomfort, “It's part of overall hypocrisy of wanting our food packaged without any blood.”
Tejeda-Moreno knew of no current cases of discrimination against people into Santeria.
Islam and Islamophobia
Like the largest Christian denominations, mainstream Islam has a bad record on LGBT issues. The Islamic State, Boko Haram, and Al-Qaeda are infinitely worse. Progressive pro-LGBT Muslims do exist, but their number is unknown. Just as LGBT Catholics, Mormons, and Southern Baptists can exist within hostile religious cultures, so can LGBT Moslems. As LGBT people have more reason to flee Syria and Iraq than others do, a higher percentage of LGBT people probably have become refugees than any other group. Most of us have not even thought about LGBT refugee rights.
U.S. bias against Islam probably results from three factors. First, most people in the U.S. lack familiarity with Islam or individual Muslims. Second, many African-Americans have converted to Islam, which many whites perceive as a rejection of U.S. culture. Third, violent, apocalyptic death cults, such as The Islamic State, Boko Haram, and Al-Queda, have claimed that Islam justifies their war crimes. As most of the people that they have killed are Muslim, large numbers of Muslims reject that claim.
A large number of people in the U.S. feel OK about expressing open hostility towards Muslims. They conflate all 1.6 billion Muslims in the world with the miniscule number in the violent, apocalyptic death cults.
People have opposed mosque construction in Wilson, Wis., Newton County, Ga., Murphysboro, Tenn., and other locations. Most attempts to block church construction involve religiously neutral concerns, like parking. In these cases, however, people objected to Islam itself. In Wilson, Wis., a county commissioner asked whether the proposed mosque would train people in the use of weapons. In Murphysboro, a former GOP Governor, Ron Ramsey, asked whether Islam was a religion or a cult. Pat Robertson chimed in, wondering if the Islamic takeover of the US was imminent. Eventually, the County gave permission to build the mosque in Murphysboro.
On May 29, 2015, an armed anti-Muslim demonstration of 200, “Rally for Free Speech” occurred in Phoenix, Ariz. About the same number of counter-protestors met them. As Arizona allows the open carrying of firearms, all this was legal. The right to free speech protects the demonstration. The display of guns, however, may cross over to harassment and attempted intimidation. That mosque had already publically condemned terrorist violence.
The number of complaints of anti-Moslem work-place discrimination filed with the Equal Employment Opportunity Commission (EEOC) rose from 330 in 2001 to 880 in 2011.
On Aug. 13, a Queens Imam and his assistant were killed leaving their mosque. A New York Grand Jury indicted Oscar Morel, 35, of Brooklyn for the murder. Police are investigating this murder as a potential hate crime. As of press time, the police have not released a motive.
The Pagan Revival
Paganism supposedly died out, with Christianity replacing it. In the last half century, Euro-American Paganism has begun to revive. The adjective “Euro-American” distinguishes this revival from living traditional religions.
Generally, Euro-American Paganism has welcomed LGBT members. Tejeda-Moreno estimates that about 20 percent of Pagans would identify as LGBT.
Tejeda-Moreno discussed the results of a survey about Pagans in the workplace. Most Pagans reported a great deal of anxiety about disclosure. Those who had disclosed reported slights such as being invited to Christian centered prayers prior to meals. Insults that are more serious involved “praying” for the “salvation” of the Pagan.
Tejeda-Moreno reported, “Many Pagans prefer not to disclose in the workplace because they do not want to confront the negative stereotypes of their bosses and other workers.” The harassment, at least in South Florida, remains verbal and does not last long.
The Pagan revival has had to fight to gain recognition as a religion. It took a seven-year legal and political battle before the Veterans Administration (VA) allowed pentacles on grave markers of Pagan veterans. Since the VA began to allow these markers, over 100 have been distributed.
Pagans have had to struggle to be recognized as needing prison and hospital chaplains. The progressive state of California only allows paid Roman Catholic, Protestant, Jewish, Muslim, and Native American chaplains in its prison system.
Pagan inmates in California prisons face many problems. Guards and other prisoners harass Pagan prisoners. Guards have placed Pagan inmates into solitary confinement for Pagan practices.
In 2008, Patrick McCollum testified before the U.S. Commission on Civil Rights about inmates’ religious rights. According to McCollum, prison guards refused to take an inmate with cancer to chemotherapy unless he removed his pentacle. The inmate missed chemotherapy. McCollum charged that prison officials tend to view all actions using a monotheistic lens.
When couples with children break up, anti-Pagan bias sometimes becomes an issue in child custody. Courts have declared some Pagan parents to be “unfit” parent solely based on their religion. Accusations of raising children as Pagans have triggered Children’s Protective Services investigations. In one case, authorities took a child from a Pagan home. They then placed the child in a foster group home that promoted Christianity.
It is not just the “refused” wedding cake.
Right-wing pharmacists could refuse to dispense PrEP, the morning after pill, or birth control. Right-wing landlords could refuse to rent to unmarried, same-sex, or intra-racial couples. As the Michigan ruling shows, the use of RFRA could justify firing someone for religious reasons.
This twisted use of RFRA could turn back years of civil rights work and not just for LGBT people. The more adept the LGBT political coalitions become in arguing religious freedom issue, the better the chance to defeat the Christian Right in the next chapter.
The American Civil Liberties Union (ACLU) provides help to anyone who feels they have been the victim of religious discrimination. Contact 212-549-2500 or www.aclu.org.
While the ACLU is always available, some religious traditions have their own civil rights organization.
If someone feels that they have been a victim of discrimination against Islam, they should contact the Council on American-Islamic Relations (CAIR) 202-488-8787 or www.cair.com.
For information on progressive Islam, visit http://www.mpvusa.org/ and http://www.patheos.com/blogs/quranalyzeit/2014/11/15/who-are-progressive-muslims-and-what-do-they-believe.