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Wednesday, June 11, 2014

On "religious freedom" for businesses as it relates to the LGBT Community

In a column on my newest blog, I ended with a brief discussion about some thoughts I had about religious freedom and businesses in regards to discrimination against members of the LGBT community (also discussed here).  What I missed when I was writing the post was that there is a case from the Supreme Court which is pretty much on point, so I wanted to discuss that briefly.

The case is Employment Division v. Smith (1990) and the decision was written (ironically enough) by Justice Scalia (joined by Justices Rehnquist, White, Stevens, and Kennedy) with a concurring opinion written by Justice O'Connor (joined in part by Justices Blackmun, Brennan, and Marshall) and a dissenting opinion written by Justice Blackmun (joined by Justices Brennan and Marshall).  The majority opinion said "[w]e have never held that an individual's religious beliefs [494 U.S. 872, 879] excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate."  To quote a portion of the decision:

                       It is a permissible reading of the [free exercise clause] say that
                       if prohibiting the exercise of religion is not the object of the [law]
                       but merely the incidental effect of a generally applicable and
                       otherwise valid provision, the First Amendment has not been
                       offended....To make an individual's obligation to obey such a law
                       contingent upon the law's coincidence with his religious beliefs,
                       except where the State's interest is "compelling" - permitting him, by
                       virtue of his beliefs, "to become a law unto himself," contradicts both
                       constitutional tradition and common sense. To adopt a true
                       "compelling interest" requirement for laws that affect religious
                       practice would lead towards anarchy.

The Court also said

                       The "compelling government interest" requirement seems benign,
                       because it is familiar from other fields. But using it as the standard
                       that must be met before the government may accord different
                       treatment on the basis of race, see, e.g., Palmore v. Sidoti, or before
                       the government may regulate the content of speech, see, e.g., Sable
                       Communications of California v. FCC, is not remotely comparable
                       to using it for the purpose asserted here. What it produces in those
                       other fields -- equality of treatment, and an unrestricted flow of
                       contending speech -- are constitutional norms; what it would
                       produce here -- a private right to ignore generally applicable
                       laws -- is a constitutional anomaly.

                       …The rule respondents favor would open the prospect of
                       constitutionally required religious exemptions from civic obligations
                       of almost every conceivable kind -- ranging from compulsory military
                       service to the payment of taxes to health and safety regulation such as
                       manslaughter and child neglect laws, compulsory vaccination laws, drug
                       laws, and traffic laws; to social welfare legislation such as minimum
                       wage laws, child labor laws, animal cruelty laws, environmental
                       protection laws, and laws providing for equality of opportunity for the
                       races. [emphasis added- MV]

Put all of this together and I think the result is pretty clear.  If there is a universally applicable law in place whose purpose is permissible, then a person may not disobey the law because of religious convictions.  That would seem to make the decision rather easy.  However, there is a slight wrinkle.  In response to this case and others, Congress and some states passed Religious Freedom Restoration Acts, which "[m]andates courts use the following when considering religious liberty cases:

1.Strict scrutiny

2.Religious liberty can only be limited for a compelling government interest

3.If religious liberty is to be limited, it must be done in the least restrictive manner possible" (Courtesy of

In these cases, the discrimination may or may not be legal depending on how the state courts rule.

All things considered, I find this to be very interesting.  Thoughts?