Anomalous and Unjust

In light of Indiana's passage of an amended state-level version of the RFRA, Cornerstone asks this week's contributors to address the following questions: To what extent should the religious freedom of small business owners protect them from having to act against their consciences? Would such protections open the door to wide-ranging and unjust discrimination against homosexuals, as many fear? What does a cost-benefit analysis reveal about RFRA legislation on the state level? What is at stake in Obergefell v. Hodges, and how does the case relate to state RFRAs? To what extent would a Supreme Court decision in favor of same-sex marriages impede free religious exercise?

By: Ira Lupu and Robert Tuttle

The United States vigorously protects religious liberty. Americans are free to worship as they choose. The government is forbidden to prescribe for any faith the content of prayers, the choice of ministers, or the criteria for distribution of blessings or sacraments.

Contrary to what some scholars have lately been arguing, however, the United States has no broad or consistent tradition of exempting religiously motivated practices from general legal norms. In the nineteenth and first half of the twentieth centuries, the Supreme Court repeatedly rejected the concept of constitutionally mandatory exemptions. After a brief and weak recognition of such exemptions in the later twentieth century, the Court once again repudiated them in Employment Division v. Smith (1990). Even with respect to accommodations created by legislatures rather than courts, the historical record reveals very few religion-specific exemptions from general legal obligations. The most prominent variations from this pattern involve unwillingness to take life, in contexts like military conscription and the practice of abortion. Other religion-specific accommodations, like the exemption in the Prohibition laws for sacramental uses of wine, have been rare, and crucially, they do not involve the infliction of significant harm on others.   

Most striking in this history is the absence of religious accommodations in the context of commercial regulation. When government began regulating American business more heavily in the 1930s and thereafter, religious accommodations did not appear. In the 1960s, the Supreme Court rejected the claim by Orthodox Jewish merchants, obliged by faith to close on Saturdays, to be exempt from Sunday closing laws.   

Based on remarkably flimsy evidence of constitutional danger, Congress enacted the Religious Freedom Restoration Act (“RFRA”) of 1993. Well before same-sex marriage hit the headlines, we expressed the view that RFRAs are distinctly troubling. They invite judicial meddling in theological questions. Their language is intentionally opaque and heavily tilted in favor of religious exemptions. As the Hobby Lobby decision starkly revealed, RFRAs do not adequately protect against the potential or actual harms, including discrimination, that exemptions can impose.  

Recently, the rise of marriage equality has led directly to the introduction of RFRAs (and amendments to RFRAs) in several states, including Arizona, Arkansas, Georgia, Indiana, Michigan, and Mississippi. RFRA proponents claim that the laws offer crucial protection against broad-based attacks on religious freedom. But the timing and context of these proposals demonstrate that core supporters see them as defenses against marriage equalityRFRA proponents thus have been forced into an impossible tightrope walk: They say that RFRAs won’t be a “license to discriminate,” while asserting that some wedding vendors should have a RFRA-based freedom to turn away same sex couples.   

Any religious exemption for commercial enterprises from anti-discrimination laws —federal, state, or local—would be deeply anomalous. We have a longstanding tradition of requiring non-discrimination by businesses open to the public. For innkeepers and common carriers, that tradition is as old as the Republic. At the state and local level, a policy of nondiscrimination covering a broader range of businesses stretches back well before the Civil Rights Act of 1964. In distinguishing between entities open to the public and private associations, these laws express a deep norm about commercial activity. Those who, in pursuit of economic ends, invite the public lose the right of selectivity recognized in those who gather for non-commercial purposes. To achieve the common goods of equal opportunity and equal respect, the marketplace must be open to all.   

Recognition of a religion-based right for business owners to deny service to LGBT individuals or same sex couples represents a stark break with that tradition. In the recent past, similar claims of religious conscience have been summarily rejected. At the time of the 1964 Act, a non-trivial number of people, particularly in the South, held religiously grounded beliefs in the separation of the races, especially with respect to marriage and procreation. Such beliefs rightly received no legislative or judicial respect, even though the Supreme Court had quite recently flirted with mandatory religious exemptions. In commercial enterprises, the desire to act on religious objections to same-sex intimacy deserves the same repudiation.   

Proponents of RFRAs argue that so long as non-objectors are willing to provide goods and services, the harm to those turned away is trivial. This invocation of market norms is abhorrent. Only the staunchest libertarians would accept this argument with respect to racial, religious, and gender discrimination. Yet a RFRA-based or even more explicit right to discriminate, such as the current proposal in Louisiana, forces individuals who face religiously-based discrimination to find willing sellers, rather than enjoying the general privilege of commerce open to all.   

Should the policy of “serve all” apply to professions, such as marriage counseling, in which bonds of trust are essential? Some therapists may be so disquieted by what the client presents—for example, a marriage that is rigidly patriarchal, or includes unconventional sexual practices—that the therapist would best serve by referring to other professionals. Whether the therapist’s discomfort is religion-based is irrelevant. Professional ethics requires abstention and referral when effective service will be impossible. The considerations that explain our approach to this professional context do not apply to the work of bakers and florists, nor to the desire of some commercial employers to deny the validity of their employees’ same-sex marriages.             

The imminence of marriage equality is producing a political convulsion among those whose norms no longer dominate the social order. Our proud tradition of religious freedom means that communities of faith remain free to preach passionately against changes in marriage laws and equally free to dissociate in faith from those who disagree. But our equally proud tradition of an open marketplace, respectful of the dignity of all, should not be sullied by an anomalous and unjust recognition of a religion-based right to discriminate in the provision of goods and services.

Ira C. Lupu is the F. Elwood and Eleanor Davis Professor of Law Emeritus at the George Washington University Law School, which he joined in 1990. Robert Tuttle is the David R. and Sherry Kirschner Berz Research Professor of Law and Religion at the George Washington University Law School, as well as professor of Religion in the university’s Columbian College of Arts & Sciences. 

This piece was originally authored on April 27, 2015 for the Religious Freedom Project at Georgetown's Berkley Center for Religion, Peace, and World Affairs.

Permanent Link: https://www.religiousfreedominstitute.org/cornerstone/2016/7/12/anomalous-and-unjust