Disclosure: The author of this article is a bisexual trans woman.
Donald Trump was expected to sign an executive order during the National Day of Prayer on May 4 regarding discrimination against the LGBTQIA community. In particular, the executive order was expected to ease restrictions, making it easier to discriminate against LGBT Americans. The Nation published the draft of such an order and the Trump Administration confirmed that the draft is legitimate, yet it was apparently one of the hundreds of drafts made by various groups that has been in circulation.
Trump took a notably pro-LGBTQIA stance during the Republican primaries with such statements as North Carolina should allow trans people to use the bathrooms they feel comfortable in and that Caitlyn Jenner would be allowed to use whichever bathroom she felt comfortable using in the Trump Tower, which ultimately she did. Things, however, took a turn during the general election. Whether it was because he no longer had to combat heterosexist and cissexist candidate Ted Cruz or that getting more in line with the Republican mainstream was necessary to keep the base together or even an agreement made with Mike Pence upon accepting the nomination for Vice President, as suggested at the time of his reversal on this same policy in July, Trump did end up cozying up to the religious right. Donald Trump changes positions so regularly that it is hard to nail down the reasons why or the people who may be influencing these decisions.
Luckily, as the ACLU laid out, the version of his signed executive order was ultimately toothless.
Today’s executive order signing was an elaborate photo-op with no discernible policy outcome. After careful review of the order’s text, we have determined that the order does not meaningfully alter the ability of religious institutions or individuals to intervene in the political process. The order portends but does not yet do harm to the provision of reproductive health services.
However, it is not impossible for an actual unconstitutional executive order to be signed by Donald Trump in the future. Furthermore, in his shortsightedness, his firing of FBI Director James Comey may very well lead to his impeachment and then either resignation or removal which would create a President Mike Pence. Pence, a longtime opponent of LGBT rights, would jump at the chance to infringe upon them in the name of Christianity.
Therefore, Donald Trump is not the focus of this article, but rather the disastrous nature of the policies he was expected to enact, and which a President Pence could be expected to do almost immediately. This is a defense against the policies of the religious right which could endanger the freedom of those outside of it.
Freedom of Religion
Before we delve into what is wrong with these policies, it is vital to know the ideas behind religious freedom, particularly as they apply to the legacy of the United States. In colonial Britain, there was no separation of church and state. The Anglican Church, founded after Henry VIII left the Catholic Church in order to divorce Catherine of Aragon by his daughter Elizabeth, reigned supreme with state backing. The Colonial Williamsburg Foundation, in particular, explains how this affected Virginia. All Virginians were declared Anglicans and, therefore legally, only Anglicans could worship. Taxes were used to fund the Anglican church and only they were allowed to hold office. Over time, Virginia reluctantly allowed other Protestants to worship, Protestants whom they legally declared could and were not allowed to hold office; members who were still obliged and taxed to fund the Anglicans. It wasn’t until slightly before the American Revolution that general tolerance came about, thanks to a drive by Thomas Jefferson.When the US Constitution was instituted, with the Bill of Rights passing soon thereafter as part of the compromise, the first amendment began:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;
The words did not explicitly prohibit preferential treatment of any religion, but it was considered well-implied. Jefferson himself wrote in 1823 to Adamantios Korais, a leader of the Greek Enlightenment, in regards to what are mutually agreed upon principles to constitutions:
1. Freedom of religion, restricted only from acts of trespass on that of others.
There is a limitation there for Jefferson, and it is not adherence to Christianity. Freedom of religion meant that you did not trespass on the freedoms of others in your exercise of religion. If you seek to burn heretics at the stake or prevent others from living their lives freely; if you seek to impose your religion upon others, that is not a valid expression of religious freedom, that is religious tyranny.
Indeed, during the 1878 case of Reynolds vs The United States, it was firmly decided in 1879 via court rulings that the first amendment meant a separation of church and state, and no preference could be given to any church in any form. The actual term was coined in this case to encapsulate what the first amendment meant in regards to religion.
Jefferson also wrote about the harm that comes from people not holding the same religious beliefs as another in his Notes on the State of Virginia in 1782:
Our rulers can have authority over such natural rights only as we have submitted to them. The rights of conscience we never submitted, we could never submit. We are answerable for them to our God. The legitimate powers of government extend to such acts only as are injurious to others. But it does me no injury for my neighbor to say there are twenty gods or no god. It neither picks my pocket nor breaks my leg.
In short, there was none. Crimes against God are for God to punish, not men. That could be the crime of heresy that Jefferson speaks about directly, or it could be living a lifestyle that others find sinful, so long as that sin doesn’t infringe upon their legitimate rights. If your religion calls on you to go out and beat others down or kill them or trash their religious icons, then it can be said to be injurious to others, but having sex with someone of the same sex does no one any harm so long as both participants are willing and competent; me living my life out as a female, even if you for some reason see me as male, does no harm to anyone and if God takes issue God is capable of handling it on its own.
However, there is something interesting to gain here, if you look at the topic from the other side.
Religious Expression Violating Religious Freedom
From the viewpoint of an alleged sinner, the person deciding to force their religious practices upon them does do them harm. If they subject someone to the horrors of conversion therapy, that does them harm. If they refuse them service, that does them harm. If they prevent someone from obtaining housing, or marriage, or food, or a job, that does them harm. Discrimination, the act of preventing someone equal treatment in the political or civic spheres of life, is doing harm to someone.
No competent adult is required to tolerate someone in their personal or religious spheres of life. You don’t have to be friends with someone whose life you don’t approve of nor does a religious institution have to service them spiritually. But the political and civic spheres of life are a completely different matter because those are the spheres that affect someone’s livelihood and safety.
Everyone needs food, shelter, healthcare, and a means for paying for them. A fundamental part of society is the specialization of tasks: no one grows all their own food, builds their own home, makes their own clothes, and so on. We all specialize in doing one thing or another because it is more productive. You may think of pioneers who set out to make their own homesteads, but they had to leave society in order to do that.
It may not seem like a big deal for someone to find some place else to do business at – if you cannot eat at this restaurant, you can find another one to eat at, right? Not necessarily. Especially in small communities, you may have only a single restaurant, or maybe two, and in that case, they might both share the same policy. There is an even greater chance that small communities may share only one supermarket.
In cases like housing or a job, the issue becomes even more expansive as it, in a capitalist society, can affect their treatment with those who will do business with them. As it is now, as surveyed in a Suffolk University Law School research paper, transgender people are 21% less likely to be offered financial incentives to rent. If you know that the building down the street is refusing to rent to homosexuals or trans people, it’s very likely that renter is going to charge a higher price for the rental or ask more to sell them a home. They need to live somewhere and they have few alternatives. The same works for a job. If your major competitor refuses to hire them, they’ll accept a lower wage out of desperation, won’t they?
Even worse, the situation in hospitals. If someone is allowed to refuse service in a hospital, even emergency service, that can have a huge effect on quality of life or even the existence of life.
Denying them housing or a job was a direct effect of your discrimination, but the fact that they end up paying more and get paid less is an indirect effect. You have picked their pocket and broke their leg, so your religious expression is invalid.
Equality of Discrimination
Discrimination is wrong, period. However, it is important to note that this will not be allowing discrimination across the board, but rather it is targeting discrimination against homosexuals, bisexuals, and trans people. It caters to certain forms of Christianity which are homophobic and transphobic. It doesn’t seek to respect the “religious freedom” of any group whose religion teaches acceptance. There may even be a small religion out there which promotes homosexuality and various American Indian traditions that venerate transgender people; who are known as being two-spirit – a term specific to Indian trans people. Why don’t they get to discriminate similarly?
If this were about religious freedom, then anyone would be able to discriminate religiously however they wish.
The Georgia Church of Creativity is a white supremacist church that calls race their religion. Recently, William Christopher Gibbs, a member, was arrested for manufacturing ricin which he likely was seeking to use on a community of color. If we were to apply the same standard, then members of this church would be permitted to discriminate against people of color in similar ways, out of religious conviction. In fact, it is likely that such a horrendous act as was planned was a sincere religious act for this terrorist. If we are going to allow people to harm others in the name of religious freedom, it then follows that we would consider this genocidal activity to be valid in the name of religious freedom.
Mormons had similarly considered black people to be cursed with dark skin for Cain killing Abel from the time of Brigham Young until 1978. Similarly, they found the darker skin of Indians to be a curse of God until quite recently. Should these sincerely held religious beliefs have allowed racial discrimination by Mormons against African Americans and Indians through the decades?
The Nation of Islam teaches that Indians, and Asians, and then white people were invented by an evil scientist named Yakub to rule the world. Does this make it alright for them to discriminate against these groups as lesser? Mind you that these are sincerely held religious beliefs.
Imagine sitting down for a meal at a restaurant, you say grace. Right after you finish, before you can eat, the manager comes over and throws you out of the restaurant. “We don’t serve your kind in here.”
Well, if we have equal rights of this sort, which would be required constitutionally, this is the very sort of discrimination which also must be legal. There is no distinction that it is legitimate to discriminate in one fashion or another – it must be across the board. Literally, any belief can be a sincerely held religious belief, from homosexuality is wrong to everyone should eat naked to Christians should be burnt at the stake for heresy.
The government would be infringing upon the freedom of religion of all others if they take one religious group’s quirks and state that it’s okay for members of that religion to act upon their sincerely held religious beliefs but not others in a manner that harms others. If one group can harm others because it’s their sincerely held religious belief, then it must allow harm by all.
Instead, we have our no harm principle in place. You are free to practice your religion as you see fit so long as it does not bring harm to others. You cannot discriminate against people in the economic and civic spheres, you cannot maim or kill others in the name of your religion, you cannot infringe upon the rights of others. Christians cannot force their religious beliefs upon others just like Jews, Hindus, Muslims, pagans, Sikhs, and Taoists cannot force their religious beliefs on others. The religious oppression of others is not a valid religious freedom, just as how the right to rob another is not a valid economic freedom.
What Would Jesus Do?
A valid question critics may ask of the assault on the rights of the LGBTQIA community is the classic: what would Jesus do? Would Jesus let someone die because he didn’t approve of how they led their life or would he refuse to treat a child because he didn’t like that child’s parents’ lifestyle? Would Jesus generally state that he refuses to do good to, or even interact with, those he considered to be sinners?
Well, Luke 5 speaks of a sinner – though his sins aren’t revealed – who is paralyzed and taken to Jesus.
One day Jesus was teaching, and Pharisees and teachers of the law were sitting there. They had come from every village of Galilee and from Judea and Jerusalem. And the power of the Lord was with Jesus to heal the sick. Some men came carrying a paralyzed man on a mat and tried to take him into the house to lay him before Jesus. When they could not find a way to do this because of the crowd, they went up on the roof and lowered him on his mat through the tiles into the middle of the crowd, right in front of Jesus.
When Jesus saw their faith, he said, “Friend, your sins are forgiven.”
The Pharisees and the teachers of the law began thinking to themselves, “Who is this fellow who speaks blasphemy? Who can forgive sins but God alone?”
Jesus knew what they were thinking and asked, “Why are you thinking these things in your hearts? Which is easier: to say, ‘Your sins are forgiven,’ or to say, ‘Get up and walk’? But I want you to know that the Son of Man has authority on earth to forgive sins.” So he said to the paralyzed man, “I tell you, get up, take your mat and go home.” Immediately he stood up in front of them, took what he had been lying on and went home praising God. Everyone was amazed and gave praise to God. They were filled with awe and said, “We have seen remarkable things today.”
The man was a sinner – as presumably, these Christians that wish to discriminate against the LGBTQIA community fell members of that community are as well – and Jesus not only forgave him of his sins but healed him. He did not turn and tell the man that he would not help him because of his sins, his religious convictions compelled him to let the man suffer. In fact, other stories in the gospels often feature Jesus choosing to dine and sleep at homes of those which are declared to be sinners by Jesus, his disciples, or crowds.
In fact, one of the most well-known stories of Jesus was where he came across a woman who was to be stoned to death for adultery, often presumed to be Mary Magdelene. Jesus wrote in the dirt and called for “he without sin” to cast the first stone and despite being claimed to be without sin himself, he was not calling dibs on the stoning but rather stopped the stoning outright. The tale is to remind people that no human is perfect and all are guilty of some sin. As none were so clean to condemn the woman to death, are these Christians so free of sin to refuse service to the LGBTQIA community, to let them die of lack of medical care?
In fact, there is little ground for considering these “sins” grave. Of course Leviticus 18:22 states:
You shall not lie with a male as one lies with a female; it is an abomination.
It has been challenged before as not being about homosexuality but rather about excessive sexual appetites where heterosexuals have sex with men out of pure sexual domination – but generally, is considered a prohibition on homosexuality.
Being transgender is considered an abomination in Deuteronomy 22:5:
A woman must not wear man’s clothing, nor is a man to put on a woman’s clothing. For all that do so are abominations to the Lord your God.
However, that isn’t at all a clear condemnation of transgender people, despite likely being more of a metaphor for enforcing gender roles, because if a trans woman is a woman, for her to deny who she is and put on a man’s clothing would be the abomination. It starts from a presumption that a trans person is identified by their birth sex to see it as an abomination. No biblical verse actually defines men and women.
But, even if these are sins, they don’t seem to be the top sins the Religious Right make them out to be. There are many abominations in Deuteronomy and Leviticus, from sleeping with your various, separately stated, family members to eating shellfish to wearing clothing of multiple fabrics. However, only ten things made the Ten Commandments – and nothing in the LGBTQIA community fits in them. Moreover, according to Jewish teachings, those only apply to Jews, as do all these laws in Deuteronomy and Leviticus; the rest of mankind, being descendants of Noah, are only bound by Noah’s covenant. Noah’s covenant also didn’t prohibit the LGBTQIA community – unless you consider filling the earth. However, homosexual couples taking in adopted children and of course artificial insemination certainly handle any personal mandate – if there is one – to that purpose.
It does demand that blood be drained from an animal before eating it – so you can certainly imagine the burger joint denying food to LGBTQIA people may be committing the more cardinal sin in their menu.
Jesus didn’t come to earth and speak on homosexuality – which was rife in the Roman culture he lived under – nor did he condemn transgender people. Rather, Jesus’ message was one of compassion, especially for the poor, and forgiveness. He spoke of economic and social justice, not the condemnation of the LGBTQIA community.
In fact, Sodom, for which the act of sodomy was named, was not destroyed for homosexuality as it is often portrayed. Rather, the Bible lays out something that sounds much like life in the United States today, and something the Religious Right tends to emulate rather than condemn, in Ezekiel 16:49-50:
Now, this was the sin of your sister Sodom: She and her daughters were arrogant, overfed and unconcerned; they did not help the poor and needy. They were haughty and did detestable things before me. Therefore I did away with them as you have seen.
In Luke 6, Jesus gives quite clear instructions for Christians:
But to you who are listening, I say: Love your enemies, do good to those who hate you, bless those who curse you, pray for those who mistreat you. If someone slaps you on one cheek, turn to them the other also. If someone takes your coat, do not withhold your shirt from them. Give to everyone who asks you, and if anyone takes what belongs to you, do not demand it back. Do to others as you would have them do to you.
It is clear that Christianity does not compel anyone to this discrimination the Religious Right covets for the legal right to commit. Rather, sinners, bringing their own bigotry into Christianity, seek to justify this bigotry through loose understandings of the texts and applying religious codes which may not even apply to them, not being Jews, to everyone in society.
That is quite the issue. These bigots hold demonstrably heretical beliefs that would lead them to discriminate against the LGBTQIA community. Jesus clearly would condemn them for it – perhaps even calling them like the Hypocrites: loudly and obnoxiously proclaiming their piety, exalting themselves (and they will be humbled) having already received their reward. Yet, these are sincerely held religious beliefs because the US Government is in no position to declare heresy. They must give unto Caesar what is Caesar’s and obey the laws of the land. If God finds the LGBTQIA community an abomination, then God is capable of handling the punishment – we need not allow earthly harm to be done in the name of this religious conviction.
In fact, Jefferson also had words for Christianity like this: devoid of Christ’s actual teaching. In a letter to Moses Robinson, March 23, 1801, he wrote, emphasis added:
The Christian religion, when divested of the rags in which they have enveloped it, and brought to the original purity and simplicity of its benevolent institutor, is a religion of all others most friendly to liberty, science, and the freest expansion of the human mind.
What this all leads to is that the acceptance of this sort of discrimination as a legitimate expression of religious freedom is a disastrous idea. It has no legitimate basis in scripture, rather contradicting it instead. It then opens the doors to all other sorts of horrifying expression of religious freedom which will pollute the public spheres of human life in America. Our historic interpretation of separation of church and state must be maintained in order for religious freedom to thrive; you are free to do what you wish so long as it does not bring harm to others and infringe on their freedom.
For this reason, whether it be President Trump, President Pence, or an act of Congress, any attempt to narrowly allow LGBTQIA community to become lesser than the Religious Right must be opposed. While I have focused on LGBTQIA rights, this also applies to the denial of birth control, exemptions for health plans from covering services that don’t affect the employer, or whatever they think up in the future, follow the same essential argument. The validation of religious oppression as religious freedom must not be allowed to come to pass.
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