Equal Protection, LGBT and Religious Freedom

             An Executive Order signed by President Obama took effect on April 8, 2015 barring discrimination against members of the LGBT community working on federal projects. The Office of Federal Contract Compliance Programs is responsible for enforcement of the President’s initiative. When will Congress finally pass legislation banning discrimination on the basis of sexual orientation and gender identity? Not until Republicans are replaced with enlightened politicians who understand that equality means equality for everyone.

            Over the last few weeks I corresponded with radio talk show host Peter Heck of Indianapolis about Indiana’s “religious freedom” law. I must have baffled him in my final position statement when I pointed this out to him:

I think the freedom argument works both ways. A person isn't free if the government sanctions discrimination against them. That's tyranny. Under your argument anti-discrimination laws are tyrannical because the government is forcing people to behave a certain way. 

Moreover, the RFRA was enacted to appease one and only one religion. Indiana legislators I believe did not intend to protect the rights of the Muslim community, some members of which can now deny with impunity business services to "infidels" based on conscience. 

I note that Indiana's anti-discrimination law states that "[i]t is the public policy of the state to provide all of its citizens equal opportunity for education, employment, access to public conveniences and accommodations ***." The statute then identifies the currently recognized protected classes (race, religion, gender, etc.). Yet, certain Indiana citizens are not covered by this Indiana public policy despite the fact that the public policy encompasses "all of its citizens." I would argue that any law that sanctions discrimination against any citizen violates the public policy. 

Providing business services to all citizens is the price paid for participation in society. If a person objects on the basis of "religious freedom" then the solution is clear: live like the Amish, separate and apart from mainstream society.

            He had no response and that was the end of the discussion. For me at least it’s easy to see why. If all citizens are guaranteed equal opportunity employment rights, then how can the law not provide equal rights to any segment of the citizenry? Yet that is what employment anti-discrimination laws accomplish --  courts interpret them to allow discrimination against the LGBT community. Equal does not mean equal when it comes to protection against employment discrimination. Perhaps the key to changing the common law is to make an equal protection argument. This I will do the next time an opportunity arises.