As the LGBTQ community mourns the victims of the tragic mass shooting in Orlando, it’s important to look at how some religious beliefs have harmed not only that community, but those of color as well. Over the last few years the idea of religious liberty has been used to push forward anti-gay legislation in the name of religious freedom. For example Mississippi’s religious exemption bill, which was signed into law in April, giving legal cover to those who want to discriminate against LGBTQ people out of “sincerely held religious beliefs.”
But what’s been lost in the discussion is how these laws also threaten the rights and interests of communities of color.
Here’s why communities of color should be worried about religious exemptions:
Reason 1: Overly broad religious exemptions could be used as a justification for racial discrimination
There is a real danger that overly broad religious exemptions could strip away many of the rights and protections won by Blacks, Latinos and other people of color through the last few decades. Most religious exemption laws are written very broadly, allowing religious objectors to refuse to comply with a wide range of laws that they feel burden their religious beliefs or moral convictions, including laws against racial discrimination. For example, a number of new "religious liberty" bills would allow a person to refuse to recognize or participate in any marriage that offends their religious beliefs, including interracial marriages, interfaith marriage, and same-sex marriages, and would grant a license to discriminate to any person who claims that complying with antidiscrimination laws conflicts with their religious beliefs.
For example, a Black man and a Latino/Hispanic woman were recently evicted from an RV park in Mississippi. The landlord said he evicted the couple because his church opposed such interracial marriages. Recent changes to Mississippi law would allow landlords to claim a legal right to racially discriminate against tenants.
Reason 2: LGBTQ people of color suffer multiple forms of discrimination and are thus more vulnerable to religiously motivated discrimination
LGBTQ people of color stand to be especially harmed by overly broad interpretations of religious exemptions because of the intersectional discrimination they face in society. Studies show that sexual minority youth of color are at greater risk of suicide and depression, and experience far higher rates of hate crimes, including homicide, than do White LGBTQ youth. Some religious exemption laws would give social service agencies a legal justification for denying LGBTQ people of color the mental health services they need, which will compound many of the mental health disparities they face and limit their avenues for care. Tennessee, for instance, passed a law that would allow counselors to deny services to a patient if doing so conflicted with their “sincerely held principles.”
LGBTQ children and youth of color are also particularly vulnerable to discrimination undertaken in the name of religious liberty. A high percentage of agencies that contract to provide adoption and foster care services are faith-based and have claimed a right to operate according to their religious beliefs. This is especially true in southern states where faith-based foster care agencies are even more common. For instance, in Mississippi seven of the eight foster care agencies are faith-based, ten out of the fourteen foster care agencies in Alabama are faith-based, and over half of the agencies in South Carolina are faith-based. These agencies could claim a right not to place children with lesbian, gay or transgender parents, or with parents who are unmarried. So too, they could claim a right not to respect the identities of children in the adoption or foster care system. Given that LGBTQ-identifying youth and youth of color make up a disproportionately high percentage of children in foster care, the use by faith-based organizations of religious liberty laws to justify discrimination on the basis of sexual orientation and/or gender identity will particularly harm children and youth of color.
Reason 3: Access to reproductive health care is a racial justice issue
In so many ways, the history of women of color in the United States has been a history of coercive regulation of their reproductive bodies and lives. From the rape and forced pregnancy of Black women while enslaved, to more recent efforts by judges and legislators to force poor, mostly women of color, to use the contraceptive Norplant in order to receive public assistance or to avoid a jail sentence, reproductive freedom of women of color has been systematically denied in multiple contexts.
The use of overly broad religious exemptions continues this ignoble history by restricting lower-income women of color’s access to contraceptive care. For instance, the Affordable Care Act requires that workplace insurance policies include coverage for contraception at no cost to the employee, yet religious employers claim a right to exclude some contraception from their health plans. Religious liberty rights in this context create a particular burden on low income women of color given the high cost of some contraception, such as the IUD.
Reason 4: Religious directives at Catholic hospitals result in women of color being denied basic health care
Today, one in six hospital beds in the United States is in a Catholic hospital. A recent study showed that in the last 15 years the number of Catholic owned or affiliated acute care hospitals grew by 22 percent. Catholic hospitals follow the church’s strict religious directives against virtually all types of reproductive health care including tubal ligation, contraception, sterilization, in vitro fertilization and abortion. These hospitals pose a threat to the reproductive health of women of color who disproportionately live in communities where Catholic-run hospitals are the only health care providers in their area. Consider the case of Tamesha Means, a Black woman in her 18th week of pregnancy who was rushed to Mercy Health Partners hospital in excruciating pain, and then sent home. Because of the Catholic Church’s strict directive against abortion, Mean’s doctors refused to tell her after examining her that her fetus was not viable and that termination of her pregnancy was the safest option to prevent sepsis, a life-threatening complication. It was not until her third visit to the hospital, when she began to miscarry, that she received any treatment. Similarly, for Rebecca Chamorro, a Latino woman who was pregnant and wanted a tubal ligation after her baby was delivered, the nearest non-Catholic hospital that provided this kind of maternity services was 70 miles away from her home in Redding, Calif. When her local Catholic hospital refused to let her doctor perform a tubal ligation, Rebecca was left with the impossible “choice” between uprooting her life in the final weeks of pregnancy to move to a town nearer to that hospital, away from her husband and children. Rebecca ultimately delivered at the Catholic hospital and did not receive the tubal ligation she desired.
Both of these cases are sobering examples of the threat to reproductive health faced by women of color in some Catholic hospitals.
Reason 5: Religious liberty has long been used to support racist legislation and policies
While religious teachings have played an important role in the civil rights movement, less attention has been paid to how misinterpretations of religion have been used to justify racial segregation and discrimination. In the 1800s, white Southerners saw slavery as being compatible with Christian morality. Religious justifications were used to preserve the racial status quo for decades after the Civil War, creating a theology of segregation that helped validate legal segregation. Religion-based arguments were also used to challenge the Civil Rights Act of 1964, as well as the Supreme Court’s 1954 Brown v. Board of Education decision. Even after influential leaders discredited segregation theology in the 1960s, some clergy continued to use it years after.
These folks haven’t given up. Some of the advocates of broad religious exemption laws today hope to use them to undermine the national consensus on racial equality. Religious exemption supporters like the Beckett Fund, Liberty Counsel, and Alliance Defending Freedom are pursuing a broad libertarian agenda that seeks to undermine all government. One strategy in this approach is undermining state and local civil rights commissions, which are often the best way for low income people and people of color to bring discrimination claims because they do not have to pay for a lawyer to do so. Yet advocates of broad religious exemptions are seeking to weaken public human rights agencies. This strategy is part of a broader effort to underfund, understaff, and limit the jurisdiction of administrative agencies charged with enforcing local civil rights laws.
Kira Shepherd is Associate Director of Racial Justice at the Public Rights/ Private Conscience project at the Center for Gender and Sexuality Law at Columbia Law School.