BreakPoint: Religious Freedom and SOGI Laws

A Common-Sense Way Forward

Can we fight discrimination and preserve religious freedom at the same time? Absolutely. But we need some clarity first.

Before Christmas, I warned how Sexual Orientation and Gender Identity laws, or SOGI laws, as they’re called, create new protected classes of people based on inclination and behavior, not biological realities of race and sex.

I also warned that so-called compromises to carve out religious exemptions for churches and religious organizations would not only fail to protect people of conscience not in religious organizations, it would mark all of us seeking exemptions as bigots with a Scarlet B.

Now it seems that we’re at an impasse, but not really. I’m grateful how the Heritage Foundation’s Ryan Anderson has demonstrated, in a new report, that fighting discrimination and protecting religious liberty do not have to be mutually exclusive.

A key point of the report, which is entitled “How to Think about Sexual Orientation and Gender Identity Policies and Religious Freedom” (and which is linked at our website, is that proponents of such wide-ranging SOGI laws have failed to prove they’re even needed. In fact, as Ryan says, there’s “no evidence that people who identify as LGBT have been turned away by a single hotel chain, a single major restaurant, or a single major employer.”

Even so, like all laws, SOGI laws will have a pedagogical role in our society, teaching that the Judeo-Christian worldview is “not only false, but discriminatory and rooted in animus.” They will impose a new orthodoxy concerning human sexuality “by punishing dissent and treating as irrational, bigoted, and unjust the beliefs that men and women are biologically rooted and made for each other in marriage.”

So at their core, Anderson writes, “SOGI laws are not about the freedom of LGBT people to engage in certain actions, but about coercing and penalizing people who in good conscience cannot endorse those actions.”

So what’s the way forward? First, as Anderson suggests, we should identify real-world instances of discrimination and then tailor-focus responses appropriate for the need, rather than implementing sweeping SOGI legislation. We might even find, as we look for specific real-world instances of discrimination, that government action is not even necessary—if “social, economic, and cultural forces” (are) sufficient to address the needs on their own.

Second, Anderson points out, both sides need to carefully define terms. There is a difference, for example, between discrimination and making distinctions. Sex-specific bathrooms and locker rooms, for instance, are not based on discrimination, but upon observable physiological and common-sense distinctions. And here’s another distinction: religious adoption agencies “decline to place the children entrusted to their care with same-sex couples not because of their sexual orientation, but because of the conviction that children deserve both a mother and a father.”

Another term to define is “public accommodation.” If a church holds a spaghetti dinner and welcomes the public, does that make it a place of “public accommodation” subject to SOGI laws? No. But the commonwealth of Massachusetts seems to think so.

Ryan concludes, “if other policies are adopted to address the mistreatment of people who identify as LGBT, they must leave people free to engage in legitimate actions based on the conviction that we are created male and female and that male and female are created for each other. This would,” Anderson asserts, “leave all Americans—not just the lucky few who are sufficiently well-connected to be exempted from SOGI laws—free to act on those convictions.”

I encourage you to read Anderson’s report. Come to, click on this commentary, and I’ll link you to it. Then send the report to your state and federal representatives, as well as to friends and relatives open to a common-sense discussion of these very choppy waters. Finally, consider adding your name to our statement on SOGI Laws. You can find it at our website:



Further Reading and Information

Religious Freedom and SOGI Laws: A Common-Sense Way Forward

As John points out, fighting discrimination and protecting religious liberty don’t need to be in competition. Read Ryan Anderson’s report here, then click here to check out the SOGI statement. You might want to add your name to the list of signers.



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  • RobertArvanitis

    You propose a way forward that is reasonable, and Christian.
    Regrettably, the dirigistes ignore reason, and are actively opposed to Christianity. They use the cloak of compassion to cover their craving for control.
    We must remain reasonable, and Christian, but we must NOT assume goodwill on the other side.

    The left has moved the Overton Window over the years, trying to denormalize and stigmatize faith.
    With SOGI, don’t accept their premises, but push back instead.
    For example, rather than note there is no discrimination, demand the left affirmatively try to prove that there is. Shift the ground out from under them.

    Likewise we note that free markets are the cure for discrimination. Even in the South, free markets opposed the inefficiencies of “separate” facilities. It took local government power to legislate, and then impose, Jim Crow.
    And if anyone on the left claims markets are not free, then fine; fire all of the FTC, and half of the Justice department, because those are expensive government institutions whose job it is to make sure markets are free.

    • Oshtur

      Cases like this are rare, they are not an indication of hostility towards faith but lawbreakers and the those driven to discriminate against others by qualities society has decided should be free from same.

      Civil rights are constitutional-compliant acknowledgement of rights to be free from invidious discrimination in the public square. Businesses making invitations of sale to the public have legally had those transactions regulated by many agencies and laws like your mentioned FTC, Consumer Protection Acts, health codes and, yes, civil rights acts.

      Every member of the public has a right to their own beliefs about marriage and the business owner knew that before inviting the public. There is no need to prove discrimination, in each of these cases the business owner has loudly proclaimed they were refusing because they didn’t like what the customer’s beliefs allowed them to do with their purchase.

      You want to have actual hostility against faith? Start saying that customers can be refused services because of their beliefs. Our beliefs are only tolerated because we tolerate others rights to theirs.

      • RobertArvanitis

        Incorrect. “Cases like this” are not rare. They are increasingly
        common. And they are an indication of real hostility towards faith. From Boy Scouts, to sex as determined by mere “feelings,” to trial balloons that the Bible is hate speech and clergy must not preach. The actual hostility already exists and will never be satisfied. It must be stopped.
        The US Constitution recognizes the right of association. That is a matter of law, not faith. Let me be clear – Christianity calls us to tolerance. But the Constitution guarantees the rights of both individuals and private enterprises to deal with whomever they choose.
        Here I pause to EMPHASIZE that distinction, just in case you reply and once again conflate those two different ideas.
        Our laws have gone deep in violating the Constitution, creating ever-multiplying “protected classes.” That is wrong.
        The very first violation of association was justifiable – the 1964 Act. The heavy hand of state government had wronged African Americans with Jim Crow laws. So it took the even heavier hand of federal government to redress that.
        But after that, the Left ran rampant, pursuing their agenda with metastasizing grievance classes. After race came sex, religion, orientation, national origin, age…
        That happens ONLY because the Left pursues power by creating dependencies.
        That is wrong. Right are inherent to individuals, NOT groups.

        In fact, the free market does not tolerate inefficiencies and corrects all so-called inequalities. Price signals destroy all non-economic factors.
        You say markets are not free?! Well if market are not free, then you must agree we fire the entire FTC and about half of the Justice Department, and hire people who WILL ensure the markets are free.

        • Oshtur

          No considering how many people are actually involved these cases are as rare as hen’s teeth.

          The Boy Scouts of America won their case before the Supreme Court because they were a private youth organization, don’t make offers to the public, and so the right to association was recognized. Issues after that were because governments had assumed they were public accommodations and treated them as such. Once they were revealed as a private organization they lost their ‘public’ status with a subsequent loss of special privileges available only to public groups.

          And you are right the Constitution does recognize a right of association and the business uses that when they made offers to the public – they chose to associate with the public with all that entails including all legal business transaction regulations. Most certainly a business can’t choose to associate with the public, make invitations to come buy, and then hold the responding members to a religious standard they have a Constitutional right not to share.

          If a business wanted to go the route of right of association like the Boy Scouts they could organize as a private club, but that does involve finding the right members first and then making just the membership the offer of sale.

          None of these cases have involved the federal Civil Rights Act, but you mention only race when religion was protected also from the very beginning and that includes customers who’s beliefs all the marriage of people of the same séx. If some business said their Southern Baptist beliefs don’t believe in same-séx marriage, I’d just respond “well my Lutheran ones do” and the business that invited me would lose in court. My religious rights are just as protected as the business’s and it was their decision to invite the group that included me to come do business with them knowing I had a right to religious freedom.

          And there are no special rights to any civil rights groups – everyone is a member of every one of them, no one can be discriminated against because of their particular membership in any of those groups and so these are about the qualities of individuals, not groups.

          ‘Free’ would mean a business could do anything they wanted, the FTC is about ensuring fair markets, not free markets. and ‘fair’ means legally run markets which means making offers legally, and conducting all the business transactions that spring from that offer as the law requires; FTC, health codes, building codes, taxation, and, yes, civil rights laws.

          Again, the solution is don’t choose to associate with the public if you can’t in good ‘conscience’ sell something to them as the law requires. Or just not offer that to the public and offers something else that doesn’t conflict. Or set up a private club and use the right of association to make just the ‘right’ people the invitation to buy from you.

          There are many solutions but offering to sell something to everyone and then refusing responding customers because their belief-based use is one they wouldn’t do for themselves isn’t one of them.

    • Phoenix1977

      Have you ever stopped to wonder why the LGBT community is so hostile towards religion? Have you ever bothered to read up on the atrocities committed by people of faith to LGBTs? Why on earth would we ever trust people of faith again when they have proven time and again they do NOT have our best interests at heart? Christians decided we were their enemy, not the other way around. LGBTs have been victimized by people of faith, and Christians in particular, for almost 2 millennia. And now, all of a sudden, Christians are supposed to be the victims here? I would laugh if it didn’t show such a contempt for history.

  • Oshtur

    Ha! The Judeo-Christian viewpoint is to welcome alll and to run any business legally respecting all customers civil rights. And sexual orientation is no more a behavior than the drive to church on Sunday is a religion.

    And though not familiar with the church making offers to the public those laws vary from state to state, all non-profits are exempt from state civil rights laws in Washington so yes a church could discriminate in their’s though it would be hard to consider a church that would ‘Christian’.

    As far as businesses from the moment they invite the public to come buy until the transaction is complete the public responding has their civil rights protected. And there would be no way to allow just a ‘little bit’ of religious discrimination by the business – they either can or they can’t.

    All customers have a constitutional right TO NOT share the beliefs of anyone at the business and still complete their purchase.

    Again the simplest solution is ‘don’t offer something for sale they feel they can’t sell while respecting the customer’s civil rights.’ That’s what private clubs and non-profits are for.

    • Tom Sathre

      Oshtur, Why would you want to impose a “simplest solution” onto churches, when nobody asked for it? Don’t be surprised, if/when you get a secular answer when you ask the question using secular premises! (Answer: I prefer my “crowd control at the front door” to be done by X, Y, or Z. Question: Who should a church admit? (Premise: “That’s what private clubs and non-profits are for.”)

      • Oshtur

        And so you can invite everyone and then reject them at the door? That’s what was happening the promoted the passing of the federal Civil Rights Act in the first place.

        Secular premises are what protect the customers since they have been invited by the business. What Christianists are asking for is special rights for their religious beliefs, to h*** with the customer’s beliefs.

        • RobertArvanitis

          Oshtur – still awaiting moderation in the thread just below. But as that longer post demonstrates conclusively, you are wrong.
          Freedom of association is the Constitutional starting point. YOU are seeking to suppress that for your social agenda.
          If you owned a restaurant in a hundred years ago the law would be Jim Crow.
          Would you obey because “it’s the law!” ? Or would your conscience compel you to serve African Americans?
          Be careful – your answer here tells us who you are.

          Things done under the claim of “health and safety” merely cost money.
          But association, and conscience, are entirely different.
          We can do cost-benefit analysis on all the others but NOT for your trampling of the right of association. Period.

      • Oshtur

        Oddly you can reply and I can’t.

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  • Sean Hogan

    Yes SOGI does create new protected classes of people based on inclination and behaviour and what is called sexual orientation is unproven.

    “SOGI laws will have a pedagogical role in our society, teaching that the Judeo-Christian worldview is “not only false, but discriminatory and rooted in animus.” They will impose a new orthodoxy concerning human sexuality “by punishing dissent and treating as irrational, bigoted, and unjust the beliefs that men and women are biologically rooted and made for each other in marriage.” This is already happening in many countries and this is actually what discrimination is.

  • RobertArvanitis

    Never too late to stop oppression of the Constitutional right of association.

    • Oshtur

      So you are saying that ‘right of association’ allows the rejection of an invited customer at any time, for any reason, in any part of the transactions?

      The courts disagree with you, even conservative ones. ‘The right of association’ is an implied right is about those that ability to group in groups less than the entire public. Once a business transaction has been intimated by inviting a group, in this case the entire public, its too late for the business to disengage from the responding members of that group.

      Again, right of association means finding a group smaller than ‘everyone’ and must be done first, not later.

  • Phoenix1977

    Of course no LGBT has ever been turned away by “a single hotel chain, a single major restaurant, or a single major employer”. Big Business is pro-LGBT so LGBT rights in those areas are very well protected.

    However, smaller companies are quite a different story. For example, the most infamous company so far in the 21st century: Sweet Cakes by Melissa. Aaron and Melissa Klein keep fighting the not-so-good fight to keep the “right”, as they see it, to discriminate against same-sex couples wanting to get married. And also Chick-fil-a still gets the blood boiling in the LGBT community.

    Luckily, soon SOGI laws will not be required anymore. Chances are Aaron and Melissa Klein will try to get their case in front of the Supreme Court (which has upheld anti-discrimination laws every single time since the first challenge of the Civil Rights Act in the 1960s) and otherwise we still have the ruling of the 7th Court of Appeals.

    It’s funny to see how religious conservatives are now asking for tolerance and compromise while the same group went for total annihilation every single time when the LGBT community requested it. And now religious conservatives think they stand a chance …? Perhaps they should read Exodus 21, verse 24 and realize they don’t.