Laws, religion and the constitution

Shannon Bohrer

(6/2016) Recently, a few states have passed laws affecting gay and transgender persons. The laws include such things as who is entitled to use what bathrooms, often referred to as the "bathroom bills." Additionally, there are laws that allow religious individuals, in private business, to have the legal right to refuse service to gay and transgender individuals for religious reasons. In response to many of these laws there have been boycotts and threats of refusing to do business in some of the states that have enacted the laws.

It has been reported that the most common reason for the enactment of these laws was the Supreme Court’s decision in regards to the California case about gay marriages. When concerning issues of gay and transgender persons, both sides seem resolute and steadfast in their beliefs. Is it wrong for a transgender person to use the bathroom of a gender that is not on their birth certificate? What is the outcome if a business does not serve a gay person? What will happen as a result of these laws is unknown. Currently, we know that both sides have strong beliefs, but the consequences/effects of the laws are mostly unknown.

What we do know is that when a law is enacted there is generally a problem within our society that requires government attention, which is why a law is created. Also, when laws are enacted there are regulations that are also created for the enforcement of the law and for consequences if the law is violated. If we examine the "bathroom bills" that require a person to use the bathroom of the gender that is on their birth certificate, what happens if they don’t comply? First, there needs to be a violation, secondly, the violations need to be documented and thirdly, the violation needs to be enforced. Currently, there is nothing in place that I am aware of to enforce the "bathroom bills."

The question is - how does a government’s enforcement entity know when a violation occurs? For legal issues I don’t believe the business owners would want to enforce these laws. Aside from the possibility of being sued, there would be the additional cost of having more employees. One suggestion of how to document the violations is to assign policemen to commercial and business establishments that offer restrooms to clients and customers. This would be similar to the school police, although they should have a different name. Maybe the bathroom gender enforcement unit (BGEU) could be used. Of course this would be very expensive. Maybe instead of the BGEU being police officers, it could be staffed with non-police. Many governments employ inspectors, like electrical and plumbing, maybe we could have gender inspectors for the BGEU. Although - that does not sound right ….…

If we are going to have a law that says the gender of a person at birth determines what public bathroom(s) they can use, how do we enforce it? Could we require that everyone carry their birth certificate and then a gender inspector just inspects the birth certificate. What happens with those individuals that won’t carry their birth certificate? Can we deny them the use of a restroom? What if they are old and really need the restroom - fast. Maybe we could let them use the restroom and issue them a ticket, for not carrying the birth certificate. My initial thoughts are that the enforcement of the "bathroom laws" may have a few issues.

It seems as we think of more solutions, additional problems seem to develop. I even thought that a simple solution might be to install cameras outside the restrooms, but I quickly realized that would create more issues. Even if we placed cameras outside of the restrooms, how do we determine a violation? I have observed transgender persons on television and I can’t tell the difference. If I did not know Caitlyn Jenner before s/he changed, I could not tell the difference. But let’s say a person that was not allowed to use a specific bathroom did so, and was caught on film entering the restroom. How do we identify them so they can be arrested?

After giving serious consideration to the enforcement side, I have come to the conclusion that the law(s) may be unenforceable. In the criminal justice community it is often said that a law that is unenforceable, is not really a law. So, I thought of examining incidents and or problems that were responsible for the creation of the law(s). Possibly by examining problems that have occurred we can find a solution. The problem was - I could not find any reports of a transgender person using a bathroom that caused a problem. Maybe the "bathroom bills" were passed to keep a problem from developing.

Other laws that have recently been passed allow private business to have the legal right to not serve gay and transgender individuals, for religious reasons. Again, we may have a problem in that many gay and transgender persons are not recognizable by sight. Do we create a customer questionnaire? What happens if the business refuses service for religious reasons, and the person or group who was refused the service is not gay or transgender, can they file a suit?

Let’s go back to the beginning. Passing a law using a religion to justify exclusionary behavior – in itself may have problems. Using religion for not serving someone in many ways seems non-religious. I am certainly not an expert in Christianity, but I do remember my Sunday school lesson; "Do not judge and you will not be judged. Do not condemn, and you will not be condemned. Forgive, and you will be forgiven…" (Luke 6:37-42) However, that’s my religion and I guess there are many others.

The United States is a great country and it does guarantee our religion freedom with the first amendment to the Constitution. It reads, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; …" So the government does not have a religion that they endorse (the separation of church and state) and you can practice the religion of your choice.

So everyone is entitled to practice the religion of their choice. But what happens if the practicing of a religion infringes on the rights of others. While the first amendment secures one right to practice their religion, the fourteenth amendment has the equal protection clause, which reads: "…No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

So we just arrived back at the beginning, we can practice our religion, but we can’t discriminate. We have a conflict with very strong beliefs on both sides. How this will be resolved, if it is resolved, is unknown. Maybe we should ask the question "What would Jesus do?"