In a recent article in the Gonzaga Law Review titled, “Religious Freedom and LGBT Rights: Trading Zero Sum Approaches for Careful Distinctions and Genuine Pluralism,” Nathan Berkeley delves into religious freedom concerns regarding equal protection rights and nondiscrimination laws that include sexual orientation and gender identity as protected classes. To name just one recent example, Senate Bill 262 (Runaway and Homeless Youth and Trafficking Prevention Act) contains a provision that prohibits discrimination on the basis of actual or perceived gender identity and sexual orientation (among other classes) “in any program or activity funded in whole or in part under such Act, or funded with amounts appropriated for grants, cooperative agreements, or other assistance administered by the HHS Administration for Children and Families.”

While the intent of these kinds of provisions is to protect persons who identify as lesbian, gay, bisexual, and/or transgender (LGBT) from maltreatment, numerous recent court and administrative cases highlight the reality that, as applied, state and federal nondiscrimination laws often do much more than protect individuals from discrimination based on their LGBT identity. They some times serve as vehicles to advance certain views on human sexuality over others.

But shouldn’t U.S. law protect LGBT persons from discrimination like it does African Americans from racial discrimination and women from sex discrimination? Perhaps, and representatives from many sectors of our society (including religious people) should thoughtfully join deliberations on this question. But to assume that all discrimination presently categorized as sexual orientation discrimination is the same kind of act as discrimination based on race or sex is a profound error. Discrimination based on discrete, immutable attributes (like race or sex) and discrimination based on certain forms of sexual expression or closely associated events, symbols, or relationships are quite different-unfortunately, much of what passes for sexual orientation discrimination today looks very much like the latter and not at all like the former.

The tendency to conflate discrimination based on status and discrimination based on conduct when it comes to LGBT persons flows from the nature of sexual orientation and gender identity as concepts. Unfortunately, one will find no meaningful definitions of either term in federal or state statutes or regulations. The ambiguity that this glaring omission produces means that government officials determine what these terms mean for the purposes of law when the times comes to adjudicate real cases. But what definitions are they relying on? This is where the real confusion begins and where the real danger emerges for safeguarding institutional religious freedom in the context of LGBT rights.

Inherent to LGBT identities (i.e., identities rooted in sexual orientation and/or gender identity) are exercises of human choice and behavior, both of which are absent in other protected classes like race or sex. This is not to deny that many gays and lesbians experience their sexual orientation as a given attribute to which they are simply responding, but how they respond is not given, as the witness of religious people who identify as both gay and celibate demonstrates.

The following hypothetical cases will help illustrate the distinctions being made here. To begin, let’s assume for each case below that the lesbian or gay identity of the client, patient, or applicant was fully transparent to everyone involved.

Case 1

A) Suppose a small photography studio received a request from a gay couple to cover their upcoming commitment ceremony. B) Suppose instead that same couple asked the photography studio to take photographs of their home for posting on a real-estate website as they prepare to sell the property.

Case 2

A) Suppose a counselor affiliated with a couples therapy practice was contacted by a lesbian couple in their attempt to resolve ongoing relationship struggles, including struggles over certain aspects of their sexual relationship. B) Suppose instead that same counselor was contacted by one of the partners of that couple, and she wanted to discuss ways to overcome her persistent anxiety at work.

Case 3

A) Suppose a faith-based social service organization encountered a gay applicant for a job opening who was unwilling to affirm the organization’s employee conduct code that identifies husband-wife marriage as the only acceptable context for sexual expression. B) Suppose that same organization encountered an applicant who disclosed at one point his enduring experience of same-sex attraction, but this time the applicant fully affirmed the organization’s employee conduct code.

Now, suppose that in each set of hypothetical cases, the organizations in both scenarios claimed to deny the service or employment opportunity based on their religious views on human sexuality. Is such a claim equally valid within each case across the two scenarios? Couldn’t the acts of discrimination in each Scenario A be understood as based upon grounds other than the client’s, patient’s, or applicant’s sexual orientation? Indeed, they could. To the contrary, the discrimination in each Scenario B case would have a much more difficult (if not impossible) time finding refuge in this understanding. The Scenario B discrimination is more analogous to racial discrimination and therefore should be more vulnerable to the charge of unlawful discrimination. The argument here is that the law can draw a workable line between the disparate kinds of discrimination represented across these two scenarios in each case. In the LGBT rights context, institutional religious freedom protections should largely insulate Scenario A-type discrimination from charges of unlawful discrimination while Scenario B-type discrimination should remain much more vulnerable to such charges.

To reiterate, when a faith-based organization’s denial of a good, service, employment opportunity, or membership status to an LGBT person can be directly and identifiably linked to its convictions about marriage and sexual conduct, it may be legitimately upholding the organization’s religious convictions in that act of discrimination (not to be confused with wrongful discrimination based on an individual’s status). The focus here is on organizational decisions that deny something to someone when to do otherwise would clearly violate the organization’s religiously-based views on these matters. When faith-based organizations are forbidden to remain true to their convictions by the application of a nondiscrimination law, in effect that law is demanding that they instead accept a different view about marriage and sexual conduct. But the law is supposed to protect conscience and religious convictions, not impose a government-mandated moral code on everyone and every organization.

Various small businesses, adoption agencies, religious colleges, and others have in fact been put under pressure to act as if the government-favored view is true, instead of their own convictions. That’s what happens when government and the courts regard as protected the behavioral dimension of sexual orientation and gender identity, as opposed to focusing protections exclusively on a status or identity associated with these classes. And yet, fortunately, the law’s understanding of these matters is not finally settled. That means that nondiscrimination law remains deeply unstable and needs to be further informed by a broad range of interested stakeholders.

Religious freedom advocates should actively call for, and carefully contribute to, greater clarity where these gaps in the law’s basic meaning persist. Achieving greater definitional clarity on sexual orientation and gender identity holds the potential to be an important ingredient to enhance protections for religious freedom while also extending appropriate protections for LGBT persons. These efforts would also complement other key religious freedom priorities in the area of establishing and/or maintaining legal exemptions and accommodations for religious organizations.