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Ernest Miller Ernest Miller pursues research and writing on cyberlaw, intellectual property, and First Amendment issues. Mr. Miller attended the U.S. Naval Academy before attending Yale Law School, where he was president and co-founder of the Law and Technology Society, and founded the technology law and policy news site LawMeme. He is a fellow of the Information Society Project at Yale Law School. Ernest Miller's blog postings can also be found @
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May 23, 2005

Religious Bias and Romer v. Evans

Posted by Ernest Miller

For one reason or the other I was reading Romer v. Evans, the Supreme Court case that overturned Colorado's Amendment 2, which would have made it unconstitutional (under the state constitution) for the state or local government to provide anti-discrimination protection for homosexuals, bisexuals and etc.

Justice Scalia wrote a dissent in which Chief Justice Rehnquist and Justice Thomas joined. Near the beginning of the dissent was a claim that puzzled me.

In holding that homosexuality cannot be singled out for disfavorable treatment, the Court contradicts a decision, unchallenged here, pronounced only 10 years ago, see Bowers v. Hardwick, 478 U.S. 186 (1986), and places the prestige of this institution behind the proposition that opposition to homosexuality is as reprehensible as racial or religious bias.
Since when has religious bias been "reprehensible"? Certain forms of religious discrimination in the public sphere are illegal, but that is different than saying that religious "bias" is reprehensible. Isn't the point of most absolutist religions to be biased against those who do not share their beliefs? Is this really considered "reprehensible" in today's society?

There are quite a few conservative Christians who believe that anyone who rejects Christ as their personal Lord and Savior is wicked. So wicked, in fact, that a just and loving God will cast such non-believers into a lake of fire for all eternity. Anyone deserving of such punishment must be pretty darn wicked in my book. Frankly, it is hard to see, if one believed this to be Truth, how one could not be "biased" against such wickedness. But is it "reprehensible" in this country to express such bias?

If I say I won't date or marry someone solely because they are of a different race, many, if not most people would consider that reprehensible. If I say the same thing but base it solely on religious belief instead of race, many people would admire that principled stand and would certainly not consider such religious bias reprehensible. If I say African-Americans are "wicked" because they are black, I would be reprehensible. If I say atheists are "wicked" because they reject God, I'm probably a respected member of the local conservative church.

In any case, the statement is truly ironic. Bias against homosexuals is generally a form of religious bias. I don't have any figures, but I expect that most people who oppose homosexuality do so because their religion teaches them that homosexuality is wicked (and will result in being cast into that eternal lake of flame mentioned earlier). If religious bias was truly reprehensible, Amendment 2 would never have been passed in the first place.

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