Louise Melling, Deputy Legal Director of the ACLU and Director of its Center for Liberty, addressed the BYU Law community about one of today’s most hotly debated legal questions: how do we reconcile religious liberty with equal protection and anti-discrimination? Here are some the insights she shared.
Moments of Change
When there are moments of significant social change, cases balancing religious liberty and equal protection inevitably arise. We saw this during the civil rights era as individuals challenged new laws on the basis of religious belief. We saw compliance challenges again as laws advancing gender equality were passed.
Today we are seeing a similar situation regarding gender and sexuality. These moments of change are seismic shifts, full of both promise and disruption, and it is not a surprise that we are seeing compliance challenges again. The question one must ask then is whether gender and sexuality should be treated the same way as race in civil rights cases. Should the same standards that applied to then be allied to Masterpiece Cakeshop and similar cases now?
Exemptions and the Harm to Equality
Melling counseled listeners that, for any who accept exemptions to anti-discrimination laws, they should do so only after carefully considering what it means to be turned away. As she explained, United States has stood firm in its legal commitment to fighting discrimination for decades; when people are denied service, that promise of equal treatment is broken.
In addition, Melling continued, history and the current social climate tell us that exemptions, once accepted, will continue to expand. If we as a society, she expressed, commit to legal equality by implementing anti-discrimination laws, we have to be wary of opening the door to any faith-based exemptions. It could be a door that is difficult to ever close.
Our common understanding is that exceptions function to create safe spaces for people unable or unwilling to change, Melling continued. In the modern era, however, exceptions have come to do far more than that—exemptions keep alive the underlying debate. Masterpiece Cakeshop, in her view, functioned to not only raise issues of religious liberty, but to reignite the debate about the legitimacy of same-sex marriage in general. She concluded that people should certainly debate these issues, but that they must recognize that exceptions have a far-reaching impact on our overall cultural story.