Davis Merritt: How religious liberty laws threaten religion

Sometime in the coming years of searing personal and political crisis over full equality for gay people, America’s going to need another Harry Golden or two.

Editor of an unlikely phenomenon for Charlotte, N.C., in the 1950s – the Carolina Israelite newspaper – Golden is best remembered for his proposed solution to that century’s searing personal and political crisis: racial integration.

Since, he mused, Southerners were always declaring, “My children will never sit next to a Negro in school!” the remedy was obvious: vertical integration, with all seats removed from classrooms. The “Vertical Negro Plan,” as he also called it, could also apply in restaurants, coffee shops, churches, etc.

That gently satirical puffball he wafted out among the barrage of rhetorical cannonballs filling the atmosphere in 1957 made at least a few people stop to think. After all, blacks and whites walked on the same streets, stood in the same lines at banks, shopped at the same stores, yet for many Southern whites, sitting down together was a recognition of equality they were unwilling to grant. But that, too, passed for most.

There’s little doubt the same thing eventually will happen with the sharply limned conflict between the civil rights of gay people and individuals’ religious liberty. Accommodation can and will be reached without the sacrifice of either set of core rights. What we cannot know now – but could control, given the determination – is how much time must pass and how much energy, treasure and goodwill squandered in fulfilling that inevitability.

America’s record of reaching accommodation on matters of conflicting rights quickly and peacefully is not exemplary. We fought each other over slavery and states’ rights in our bloodiest war and spent the next century and a half in legal and political skirmishing about vestiges of that conflict, yet we can still become indignant and quarrelsome over the display of an outdated battle flag.

If America’s political system were not in ideological deadlock and controlled by unseen hands filled with dark money, we perhaps could do better this time around. Accommodation for both sides of our current schism is within reach of well-intentioned people and organizations.

But so was fixing a minor and unintended flaw in the Affordable Care Act. Tragically, the political system’s incapacity required the U.S. Supreme Court to decide something best left to a fully functioning legislative system, if we had one.

And so was the issue of gay marriage. It was entirely possible for states to extend the civil benefits and rights of marriage to couples without involving any religious component whatsoever. But a large segment of America’s population believes deeply that marriage is a sacred, not secular, status, and they are willing to invite government intrusion to preserve their belief, a truly bad miscalculation.

That determination to project their personal religious principles onto everyone, including governments, will lead inevitably to the Supreme Court resolving yet another dispute better settled with reason at the societal and legislative levels.

That’s because along the way a court will have to evaluate the “sincerely held beliefs” invoked in religious liberty laws that legalize discrimination against gay people. That means determining in specific cases and for specific people whether those beliefs are in fact sincerely held.

That is no court’s proper province and is the ultimate church-and-state nightmare, hazardous for all sides of the dispute, our democracy and every religious person.

This story was originally published July 20, 2015 at 7:01 PM with the headline "Davis Merritt: How religious liberty laws threaten religion."