Fueling the Terrorist Fires: How Discrimination Against LGBT Americans in the Name of Religious Liberty Threatens National Security

The past 20 years have seen significant victories for LGBT civil rights in courthouses and legislatures alike. Many say that these victories culminated in 2015 in Obergefell v. Hodges, in which the United States Supreme Court held that same-sex couples share in the fundamental right to marry under the United States Constitution. However, Obergefell is not a panacea for the LGBT community. In the approximately 28 states that do not have an anti-discrimination statute that includes sexual orientation or gender identity as protected classes, an LGBT person may get married on Sunday but then be denied goods or services in a public accommodation on Monday based on his or her sexual orientation and/or gender. Moreover, while Obergefell certainly marked a watershed moment for LGBT Americans and their allies, anti-LGBT sentiment continues to run deep and strong in the United States.Approximately 23 states, as well as the District of Columbia, do have anti-discrimination statutes that prohibit discrimination against LGBT people in public accommodations. Marriage equality has strengthened the backlash against LGBT equality. This backlash is occurring when for-profit businesses, such as photographers, bakers, and florists, assert that they should be exempt from complying with these anti-discrimination laws based on the for-profit business’s religious beliefs about homosexuality, bisexuality, transgenderism, and marriage for same-sex couples. These arguments have already been made in Colorado, New Mexico, New Jersey, and Oregon, and are likely to arise in more and more states in the wake of Obergefell and the Supreme Court’s decision in Burwell v. Hobby Lobby. Thus, the next battle in the legal and culture wars for LGBT civil rights will be fought over the answer to the question: When a for-profit business seeks a religious exemption from a state anti-discrimination law, which should prevail — the principle of religious liberty or the principle of anti-discrimination? I refer to this as the Anti-Discrimination Question.There are three critical analytical axes of this question: legal, policy, and normative/theoretical. I previously addressed the legal axis. This article addresses the policy axis. In it, I argue that courts and legislatures considering the Anti-Discrimination Question should find that anti-discrimination laws trump claims of religious exemptions to such laws made by for-profit corporations. Failure to reach that conclusion will threaten the United States’ foreign policy and national security interests, a threat that is particularly salient in our post-9/11 world. Since the 9/11 attacks, the United States has waged a “War on Terror” in which it explicitly seeks to rid the world of oppressive, theocratic regimes in the Middle East and Northern Africa, such as ISIS, Iranian Sharia law, and Boko Haram, and replace them — through “nation building” — with democracies created in the United States’ own image. U.S. foreign policy spreads messages of equality, democracy, and freedom while simultaneously condemning the values and practices of these regimes — male supremacy, beheadings of those who hold minority religious beliefs, executions of gay men, and the denial of full equality to women, to name a few.In order to maintain its own moral and diplomatic authority when spreading messages of democracy, equality, and freedom, the United States must live those values within its own borders. To do so, there is only one answer to the Anti-Discrimination Question: Anti-discrimination protections trump claims of religious exemptions made by for-profit corporations. This answer is required if the United States is to have legitimacy in the international sphere when it demands religious pluralism, gender equality, and equality for LGBT people from oppressive regimes abroad. If the United States does not “walk the walk” on these issues at home, its demand that other countries integrate these principles will ring hollow and hypocritical. In addition to undermining the power and legitimacy of U.S. foreign policy, failing to find that anti-discrimination principles trump requests for religious exemptions threatens national security. Terrorist groups such as ISIS and al Qaeda look for weakness within the United States and its policies. Inconsistency between what the United States says regarding freedom and democracy abroad, and what it actually does at home with respect to those principles, provides rich fodder for these terrorist groups to rally their followers and harm the United States and its citizens.This is not the first time an argument has been made that foreign policy concerns should inform the resolution of domestic civil rights issues. A large part of the impetus behind the passage of the historic Civil Rights Act of 1964 was the United States’ inconsistency, if not hypocrisy, of sending African-American soldiers to fight against Hitler and his racist regime, and the segregated America to which these soldiers of color returned. The Civil Rights Act is thus an example of what Derrick Bell called the “interest convergence dilemma” — the dynamic through which a marginalized group gains civil rights because those in the majority have their own interest in that outcome. In the context of the Civil Rights Act, white, powerful men in President Johnson’s administration, as well as in the Truman and Eisenhower administrations before them, concluded that passage of the Civil Rights Act was essential to the United States’ ability to continue as a global power after World War II and into the decades of the Cold War.I argue that a similar interest convergence occurs in the context of the Anti-Discrimination Question. The largely white, largely heterosexual stakeholders and decision-makers in United States’ national security and foreign policy circles should realize that if the Anti-Discrimination Question is resolved in favor of anti-discrimination principles and thus in favor of LGBT civil rights, United States’ foreign policy and national security interests will also benefit. Conversely, answering the Anti-Discrimination Question in favor of religious exemptions for for-profit corporations will not only be a harmful setback for the American LGBT community, it will present a clear and present threat to United States foreign policy and national security. In fact, the stakes are even higher today than in the 1960s because of the threat of terrorism, both abroad and on American soil.Part I of the article will summarize the state of LGBT civil rights in the United States, as well as the current landscape of state “religious freedom” laws. Part II will contextualize the article’s foreign policy and national security arguments by analogizing the current-day fight for LGBT civil rights with the racial civil rights movement of the 1960s, which resulted in the Civil Rights Act of 1964. In doing so, it will use Bell’s interest convergence theory to frame and explain the seldom-explored connection between United States’ foreign policy interests and the passage of the Civil Rights Act.Part III will argue that the LGBT civil rights movement should follow the same trajectory as the civil rights movement that led to passage of the Civil Rights Act of 1964, and for the same reasons of foreign policy and national security. This part, too, will use Bell’s interest convergence theory to frame the argument and support the article’s prescriptive recommendations.Part IV will conclude the article.