Op-ed: It's Time To End 'Swiss Cheese' Equality

By Ian Thompson

Originally published on Advocate.com March 06 2014 1:45 PM ET

Following Arizona Governor Jan Brewer’s veto of a bill aimed at allowing businesses and service providers to refuse to serve LGBT people, it’s time for those of us pushing back on efforts to misuse religious liberty as a license to discriminate to realize that the momentum is on our side.

First, some background. As marriage for same-sex couples becomes a reality in more states, the go-to “Plan B” for opponents of LGBT equality has been to support measures that purport to protect religious liberty, but really exist to give a license to discriminate against LGBT people. In this distortion of religious liberty, a failure to provide employers and service providers with special rights to break non-discrimination laws somehow represents an attack on religious freedom.

This strategy is not new or unique to LGBT people. It is something that opponents of civil rights — for African-Americans, women, and others — have repeatedly turned to throughout history, particularly when it becomes clear they can no longer defeat, outright, the underlying civil rights gains of a particular movement. These efforts become a way to undermine and rollback gains, creating a kind of “Swiss cheese” equality. Sure the rights exist, but with a lot of holes.

To be clear, it is important to acknowledge that religious liberty is one of our nation’s most cherished values, and something that the ACLU has fought to safeguard since our founding nearly a century ago. It guarantees us the freedom to hold any belief we choose and the right to act on our religious beliefs, unless those actions harm others or result in discrimination.

Coming on the heels of success in Arizona and numerous other states, we must recommit ourselves to keeping up the fight against efforts to misuse religious liberty as a license to discriminate. We should also see it as an opportunity and a sign that this is a fight we can win, not only at the state level, but at the federal level as well.

One example is the sweeping religious exemption in the Employment Non-Discrimination Act (ENDA). This exemption would be unprecedented in federal laws prohibiting employment discrimination, and could provide religiously affiliated organizations — including hospitals and universities — with a blank check to engage in employment discrimination against LGBT people. An exemption that could leave a transgender doctor at a hospital or a gay food services director at a university without protection from workplace discrimination based on being LGBT is one that is too broad.

ENDA’s current religious exemption sends a message that LGBT discrimination is different – more legitimate – than discrimination against individuals based on their race or sex. If there’s one thing the national uproar over the Arizona bill tells us, it is that the American public no longer believes this is true. We as a nation understand that discrimination against people because of who they are is inconsistent with our country’s values about fairness and equal treatment under the law.

It is time that the religious exemption in ENDA reflects this reality. We are a world away from where we were a decade ago – and maybe even a year ago. There is no reason to continue to settle for an exemption that would needlessly dilute ENDA’s critically important protections and treat LGBT discrimination differently.

Passage of ENDA is vitally important to LGBT people across the country. In 2014, it remains an unacceptable reality that there are individuals who are forced to hide who they are or who they love when they go to work out of a fear of losing their livelihood. The sky-high public support for legislation like ENDA (more than 7-in-10 Americans favor it), not to mention the mistaken assumption that it is already the law, should make this a no-brainer for Congress.

However, if ENDA does not advance in the House of Representatives this year, and thus is not signed into law by President Obama, its sponsors will need to reintroduce it once again in 2015. If that happens, I hope they will see the importance of including a narrower, more appropriately tailored religious exemption that does not provide a blank check for discrimination. To do otherwise would diminish the good that the bill will achieve and unnecessarily limit the number of people who will receive protections against discrimination.

Whether the discrimination at hand involves a business turning away an LGBT person or same-sex couple or an employer firing or refusing to hire someone based on their sexual orientation or gender identity, we must remain vigilant against efforts to misuse religious liberty as a license to discriminate. While we still have a long way to go, we have already achieved so much as a movement and community, let’s not settle for partial equality, or one with holes, at this point.

IAN THOMPSON is a legislative representative on issues related to LGBT rights in the ACLU's Washington legislative office and can be reached on Twitter @iantDC.