This year the Nebraska Legislature is once again considering adding sexual orientation and gender identity (SOGI) to the list of protected classes alongside race, color, national origin, sex, and religion. LB 173 would alter existing state level non-discrimination laws in order to create protected classes for sexual orientation and gender identity in employment. This legislation would also give local municipalities in Nebraska the explicit right to pass additional SOGI laws related to housing and public accommodations.
Religious Freedom and the First Amendment
At first glance, these laws may seem important to stop discrimination. However, when it comes to public policy, good intentions aren’t enough. In truth, these laws represent a real and present threat to the religious liberty and freedom of conscience of good Nebraskans.
Religious freedom has rightly been called the first freedom because it is the first provision of the First Amendment to the United States Constitution. This is not an accident. Rather, its placement is intentional.
Our founders believed that the right of an individual to live and work according to his or her beliefs is inalienable and essential, because it has first been granted to them by their Creator. The government’s job then becomes simply to protect this right for its citizens. The constitution recognizes that religious people are not beholden to the government as their only authority. Rather, people of faith are first beholden to God and then second to the government. With this understanding in mind, unless there is a compelling interest to protect public health and safety, the government should never come between a religious person and their freedom to follow the tenets of their faith.
How SOGI’s Like LB173 Threaten the First Freedom
SOGI laws threaten this first freedom because they codify an understanding of marriage and sexuality that is antithetical to the moral code and reasonably held beliefs of many people of goodwill. These laws impose anthropological claims that would have been unknown in our society just 50 years ago. They also imply that anyone who objects for any reason is committing a crime that should be punished.
The stated intent of SOGI laws is to stop wrongful discrimination against LGBT people. No one is contesting that randomly discriminating against a person who is a member of the LGBT community is wrong. However, creating these new protected classes will mean that a person who believes differently than the government about marriage and sexuality will no longer be at liberty to bow to their primary authority in the public square. They will be forced either to conform to the government’s new moral code or suffer the consequences of nonconformity.
As Ryan Anderson pointed out in a recent article, “How to Think About Discrimination: Race, Sex, and SOGI,” the definitions used in these laws are far too broad:
“Any policy response to a legitimate need must be appropriately tailored. If a policy is justified by a housing or employment need, the scope of who counts as an employer or what counts as relevant housing must be defined accurately so that it can address the problem without unnecessarily burdening others. One problem with current SOGI laws, however, is that they apply to too many sectors of life and employ unreasonably expansive definitions. The scope of coverage—areas where the law applies, penalizes, and coerces—is far too broad.”
Who Would be Impacted by LB173
The broad definitions used in LB 173 would create problems for private schools, churches, and faith-based organizations in Nebraska, as well as for business owners. These organizations and people would no longer be free to conduct hiring and firing according to their convictions without fear of government punishment.
For example, a private Catholic school would be forced to ignore important tenets of their faith when considering who would be appropriate teachers for their classes. A battered women’s shelter couldn’t continue to hire primarily biological women to meet the unique needs of the people that they serve.
SOGIs are a Solution in Search of a Problem
Further, there is no evidence to suggest that the sort of arbitrary discrimination against LGBT people that these laws are meant to stop is happening with any regularity in Nebraska. In general, Nebraskans are kind and tolerant. With few exceptions they do not refuse to hire, serve, or rent to people who identify with the LGBT community.
In other words, these laws are “a solution in search of a problem.” And too often, they’re used not as a shield against real discrimination, but as a sword against people of faith.