by Lisa Keen

In the early days of the gay civil rights movement, conservative opposition came in the form of appeals to religion, particularly Christianity, and its tradition rejection of homosexuality. While some anti-gay pressure is still based on similar claims, a new type of faith-based objection to gay rights is gaining currency.

According to these new challenges to gay civil rights, legal protections and demands for equal treatment of gay couples trample the religious freedom of those who discriminate against gays based upon deeply held theological beliefs.

The "old school" objections to gay rights have grown very familiar, especially since 1977, when entertainer Anita Bryant said "the Lord" called on her to "save our children" from the "sin of homosexuality."

Bryant managed to overturn laws in four jurisdictions before her message faltered two years later. Ultimately, her religious indignation inspired ridicule and disdain for her campaign and her singing career, and three of the four cities subsequently re-enacted their laws.

Others have taken up Bryant’s call, from religious broadcasters like Jerry Falwell and Pat Robertson, to the Southern Baptist Convention and Pope John Paul II. But their efforts have been stymied, like Bryant’s before, by growing public tolerance toward gays. Polls show that over time, fewer and fewer Americans consider homosexuality "a sin." A Gallup poll released in June showed a continuation of a gradual, and to some degree steady, increase in the liberalization of American public opinion about homosexuality.

The new approach does not appeal to the public to reject gay rights as offensive to religion, but switches gears, claiming the need for similar civil rights protection for "religious freedom" -- in this instance, the freedom of conservative Christians and other individuals, groups and institutions to practice their faith by discriminating against gays.

At least three legal challenges are making their way through the federal court system based upon this sort of demand for protection of religious freedom. Congress is also expected very soon to again take up consideration of President Bush’s Faith-Based Initiative, which contains an exemption permitting funding to religious groups that do not adhere to state and local gay civil rights laws in the name of religious freedom.

The Faith-Based Initiative faces substantial opposition in the Democrat-controlled Senate over concerns that it undermines state and local civil rights laws. The outcome of the court cases is more difficult to predict, but their potential impact, noted one civil rights attorney, could "knock out gay rights laws nationwide."

Gays v. 1st Amendment?

In two cases, Hyman v. Louisville and Hyman v. Jefferson County, a Baptist gynecologist named J. Barrett Hyman is challenging the constitutionality of human rights ordinances in Louisville and Jefferson County, Ky., because the ordinances prohibit discrimination based on sexual orientation and gender identity.

Hyman is arguing that his anti-gay religious beliefs leave him vulnerable to prosecution under the local ordinances because he won’t hire gay employees. The ordinances already exempt religious institutions from the law, but Hyman wants the court to rely on his First Amendment right to free exercise of religion to be used to extend the exemption to include individuals with religious beliefs opposing homosexuality.

Chief Judge Charles Simpson of the U.S. District Court for Western Kentucky rejected Hyman’s plea, saying, "While discrimination against individuals on account of their sexual orientation or gender identity may be a religious practice for Dr. Hyman, the ordinances’ prohibitions are textually and contextually secular."

Simpson pointed to a 1982 U.S. Supreme Court decision rejecting a challenge brought by an Amish employer who did not withhold Social Security taxes from his employee wages, saying that payment of taxes violated his faith. The high court noted then that not every burden on a person’s religious beliefs is unconstitutional if it is "essential to accomplish an overriding governmental interest."

The human rights ordinances "may not, and do not, regulate the beliefs of Dr. Hyman," wrote Simpson in his March 21 decision. "Rather," said Simpson, the ordinances "merely seek to regulate the conduct of all individuals who are engaged in the employment of others."

Hyman has appealed his case to the conservative 6th Circuit U.S. Court of Appeals, which several years ago upheld a ballot referendum repealing Cincinnati’s gay civil rights ordinance, despite an earlier U.S. Supreme Court decision striking down a statewide anti-gay ballot initiative in Colorado.

The Hyman appeal puts the 6th Circuit in another race to the Supreme Court on a gay-related issue -- this time with the Atlanta-based 11th Circuit Court. In the 11th Circuit case, Weiss v. REN, a Florida man has claimed his employer violated the Civil Rights Act of 1964 when he was fired for, among other things, expressing anti-gay religious beliefs to a lesbian co-worker.

The federal Civil Rights Act makes it unlawful to discriminate in the workplace based on religion, as well as race, color, sex and national origin; it does not include sexual orientation as a protected category, so Weiss’ lawsuit does not directly jeopardize a gay civil rights law.

But Weiss’ employer, REN Laboratories, said Weiss was not fired because of his religious beliefs; but instead because his behavior created a "religiously hostile work environment." The Supreme Court refused on Oct. 29 to review the case, but it will still go back to federal district court in Florida for a jury trial to determine whether Weiss’ religious expressions on the job did, in fact, create a hostile work environment.

Another Kentucky case in federal court also pits gay rights against religious freedom. Alicia Pedreira and seven others have sued a Baptist-run home for at-risk youth for violating the U.S. Constitution when Pedreira was fired over the Baptist "core value" that homosexuality is wrong. [See related story in this issue.]

The lawsuit argues that the agency’s firing of Pedreira constituted religious-based discrimination. Pedreira also charges that the agency violated the First Amendment’s prohibition against establishing an official religion because the facility used government funding to support its religious beliefs in firing gay employees and in instilling Baptist tenets on at-risk youth.

Religion in the workplace

Much like in the Weiss case out of Florida, KBHC claims it did not discriminate against Pedreira because of religious beliefs on homosexuality. Instead, said the agency, Pedreira was fired because KBHC needed to ensure that its public image did not convey any message that the Baptist agency accepted homosexuality.

"By employing people who assert their own homosexual behavior, said KBHC President Bill Smithwick, "we would be sending a message of approval of that lifestyle to our youth."

So far, KBHC has had the upper hand in the legal battle.

"KBHC does not condition employment on the acceptance or practice of its religious beliefs," wrote Chief Judge Charles Simpson of the U.S. District Court for Western Kentucky. "Employees need not embrace the religion-based moral code which the KBHC espouses in order to comply with the conduct requirement. The code of conduct, although requiring behavior which is consistent with KBHC’s values, leaves the religious freedoms of employees and potential employees unfettered."

In a preliminary ruling July 23, Judge Simpson said there was no evidence that KBHC fired Pedreira based on her own religious beliefs. Still, Simpson said Pedreira has a chance of succeeding on the claim that KBHC violated the First Amendment’s Establishment Clause.

Supreme Court history does not bode well for the gay rights supporters in these cases. Laws prohibiting anti-gay discrimination have been hit hard by U.S. Supreme Court rulings that have given greater weight to the First Amendment rights of opponents than to the local or state government’s pro-gay ordinance.

In 1995, the Supreme Court said the First Amendment free speech rights of parade organizers of Boston’s annual St. Patrick’s Day outweighed a Massachusetts law prohibiting discrimination on the basis of sexual orientation. Last year, the court ruled the Boy Scouts’ First Amendment right to express its "core values" against homosexuality outweighed New Jersey’s law against anti-gay discrimination.

In its original form, President Bush's faith-based initiative included an exemption that permits federal funding to religious groups like the Salvation Army that discriminate in ways that may run afoul of state and local gay rights laws. A revised version, to be introduced in the Senate, likely will not include the controversial exemption. (by Paul Sakuma/AP)

Faith-based discrimination?

Gay rights advocates may fare better in the fight over President Bush’s Faith-Based Initiatives, also known as the Community Solutions Act. After the Sept. 11 attacks, Congress scaled back its legislative agenda, and the Bush administration likewise scaled back its efforts to pass the initiative.

The main thrust of the legislation is to encourage Americans to give to charitable organizations by extending greater tax incentives for such donations. But the original version of the bill also sought to expand an existing federal program called "Charitable Choice" to make it easier for religious-based charities to win federal funding for their social service activities.

The Charitable Choice Act, passed in 1996, allows religious organizations to receive federal funding even if they do discriminate based on religion in hiring. But opponents of expanding this law are concerned that some organizations -- like the Salvation Army -- will evoke religious beliefs as a cover for discrimination that is really based on other grounds, such as sexual orientation, race, or marital status.

In a case decided by a California appeals court in July, for instance, a Catholic Charities group sought to evade a state law requiring that all employers in the state provide health benefits that covered prescriptions for contraceptives.

Catholic Charities said that state law violated the group’s First Amendment right to free exercise of religion. The court rejected the challenge, ruling that the law is "neutral."

An attorney with Lambda Legal Defense & Education Fund said the California ruling could be particularly helpful because it upheld the state law with regard to the delivery of non-religious services. Opponents of Bush’s original faith-based initiative argued it would fund religious charities that discriminate against gays and others in the delivery of their services. They said the legislation would have allowed federal funding for charitable activities even when those activities were delivered in conjunction with religious beliefs.

Despite an aggressive White House effort, the faith-based initiative was hobbled in the Senate over widespread and loud opposition to the exemption that was seen as evading state and local civil rights laws. The NAACP’s annual convention voted in July to oppose "any and all Faith Based and Charitable Choice initiatives which do not include traditional and well established employment rights, civil rights and anti-discrimination protections that can be enforced by the nation’s court system."

A key co-sponsor of the legislation, Sen. Joseph Lieberman (D-Conn.), made clear that he would withdraw from the legislation, and he apparently convinced the president to at least say the federal government should honor civil rights laws. In October, it was apparent Senate Majority Leader Tom Daschle would not move on the legislation until the bill said that, too.

President Bush sent Daschle a letter Nov. 7, saying that Lieberman and the Republican co-sponsor Sen. Rick Santorum from Pennsylvania had made "great strides" on some version of the bill, which he has now dubbed the "Armies of Compassion Bill."