The U.S. Commission on Civil Rights on March 22 held a briefing on the intersection between religious freedom and the growing set of non-discrimination requirements. It was a timely briefing, as suggested by the headline of a recent Washington Post article: “Faith Groups Increasingly Lose Gay Rights Fights.” The article says:

“[G]ay groups and liberal legal scholars say they are prevailing because an individual’s religious views about homosexuality cannot be used to violate gays’ right to equal treatment under the law.

“‘We are not required to pay the price for other people’s religious views about us,’ said Jennifer Pizer, director of the Marriage Project for Lambda Legal, a gay rights legal advocacy group. . . .

“Gay rights groups said they do not object to making faith groups’ religious jobs exempt from the discrimination laws but that offering services to the public is different.

“‘In their role as a participant in the marketplace, they are being required to do that in a non-discriminatory way,’ said Brian Moulton, Human Rights Campaign senior counsel.”

Actual reality may be just a bit more complicated. Religious freedom does not apply only to private activities. The public is diverse and requires varied suppliers of services. The rights of persons and organizations offering services need to be respected, not only the rights of those seeking services. And so on.

Note these resources:

Gregory S. Baylor and Timothy J. Tracey, “Nondiscrimination Rules and Religious Associational Freedom,” Engage, 8/3 (June 2007).

Steven H. Aden and Stanley W. Carlson-Thies, “Catch or Release? The Employment Non-Discrimination Act’s Exemption for Religious Organizations,” Engage 11/2 (August 31, 2010).

Richard W. Garnett, “Religious Freedom and the Nondiscrimination Norm,” Notre Dame Legal Studies Paper no. 12-65; a chapter for Matters of Faith: Religious Experience and Legal Response, ed., Austin Sarat (Cambridge Univ. Press, forthcoming).