03/18/2010 05:12 am ET Updated May 25, 2011

Why the Claim of Religious Discrimination is the Next Big Battle in LGBT Rights

It is becoming increasingly common for LGBT rights opponents to argue that they are the true victims of discrimination in a society that is becoming more accepting of gay people. As two recent legal cases show, many of those claims are based on the theory that laws and regulations that prohibit discrimination on the basis of sexual orientation actually discriminate on the basis of religion.

In one case out of New Mexico, the owners of a photography business refused to photograph the commitment ceremony of a lesbian couple claiming that to do so would violate their Christian beliefs. Following the couple's complaint, the state's human rights commission concluded that the operators of the business violated a state law that prohibits stores and other places of public accommodation from discriminating on the basis of sexual orientation. A court later rejected the owners' argument that this amounted to religious discrimination by noting that while state law exempted religious organizations from having to comply with the gay rights law, that exemption did not apply to businesses that offer goods and services to the public.

In a second (and potentially much more important) case, a Christian law student organization has sued the University of California's Hastings law school over the issue of whether the group has to admit gay and lesbian students. Hastings provides student organizations with financial and other forms of support as long as they agree not to exclude students on the basis of several traits, including race, sex, religion, disability, and sexual orientation. The law school refused to recognize the Christian organization after the group announced that it would not permit lesbians and gay men to join. This led the student group to sue in federal court claiming that the school was discriminating against it because of its religious views. Although the lawsuit was dismissed by the lower federal courts, the Supreme Court announced in late December that it would hear the case.

We are likely to see more of these lawsuits because it is both politically and legally savvy for LGBT rights opponents to argue that they are the true victims of discrimination. And indeed, there are sound constitutional and policy reasons for why the government should not be in the business of requiring religious organizations to change their views or membership criteria.

We have to be careful, however, before we allow religious objections to serve as a shield against the enforcement of anti-discrimination laws. Groups should be free to hold whatever religious or moral views they prefer. But when an organization (such as in the New Mexico case) offers services or goods to the public, it should have to abide by anti-discrimination rules. And when an organization seeks public subsidies (as in the California case), it should also have to abide by anti-discrimination laws.

In fact, if we replace "sexual orientation" with "race" in these cases, their outcomes would become obvious to almost everyone. If a photography business refused to provide services to African Americans customers due to religious objections, almost no one would argue that it should be exempt from anti-discrimination laws. Similarly, if a law student organization refused to admit blacks or Asians on religious principles, few would argue that it should nonetheless be entitled to public funding. And if the racist student organization sued and lost, the Supreme Court would not agree to hear the case.

The truth is that discrimination on the basis of sexual orientation, especially when it is religiously motivated, still retains a disturbing level of legitimacy in our society. As the Supreme Court justices prepare themselves to hear the Christian law students' case, they should remember that only a few decades ago, laws prohibiting interracial marriages were regularly defended on religious grounds. In striking down anti-miscegenation statutes forty years ago, the Court made clear that religious objections cannot stand in the way of enforcing equality principles in the public sphere.