By now you're probably familiar with the controversy over the Indiana RFRA (Religious Freedom Restoration Act) law and its potential -- most likely intended -- to license businesses to discriminate against gays and lesbians. (And now those enlightened statesmen in the Arkansas legislature are getting in on the act.) Here's an excellent summary in the Times of the controversy, the history of RFRA laws, and the distinguishing characteristics of the Indiana law; here's my colleague Garrett Epps's description of how Indiana's law differs from the federal and most state versions of RFRA; and here's Lambda Legal's take on why the law seems motivated by anti-gay bias.
I have never been a fan of these RFRA statutes, and these recent abuses of them highlight a big reason why. The original federal RFRA can be understood sympathetically, as an attempt to protect religious minorities from general laws that needlessly burden their religious practices (e.g., a ban on hallucinogenic drugs that fails to exempt the use of peyote in Native American rituals). But once we start requiring exemptions from general laws for religious beliefs or practices, we open the proverbial can of worms. There's a huge and growing variety of religious beliefs and practices out there, and requiring exemptions for all of them threatens to make our laws look like Swiss cheese. (That's a worm and a cheese metaphor in the same paragraph. My apologies.) It's difficult, moreover, to discern whether any given expression of a religious belief is sincere (rather than just a dodge to get around a burdensome law), or to know whether burdens on sincere beliefs are "substantial" enough (the language of most RFRA statutes) to justify an exemption. Under RFRA laws, however, judges have to make these calls, which means government officials have the authority to decide what religious beliefs are genuine and which religious beliefs and practices are sufficiently important to render a burden "substantial." And RFRA laws inevitably beg the question of who is capable of holding a "religious belief" or engaging in a "religious practice" (can for-profit corporations do it? the Supreme Court has said yes), which is really an existential question about what "religion" is -- and thus, again, hardly the kind of issue we want courts deciding.
My biggest beef with RFRA laws, however, is their prioritization of religious belief over other important values. This priority is inherent in the very notion of a "Religious" Freedom Restoration Act (as opposed, say, to a "Moral" Freedom Restoration Act): RFRAs entitle me to an exemption from drug laws if I smoke peyote as part of my Native American religious practice (the "I" here is hypothetical), but not if I smoke peyote because of a moral judgment that moderate use of hallucinogens is an acceptable form of recreation. It's true that our Constitution itself seems to prioritize religious belief by safeguarding "the free exercise" of "religion" in the First Amendment. But this Free Exercise Clause has been interpreted by the Supreme Court -- correctly, in my view -- to protect religious beliefs and practices only from intentional targeting by the government, not from incidental burdens as the result of religion-neutral laws. (This interpretation is what prompted the enactment of RFRA laws in the first place.)
And it turns out that even the Constitution's apparently favorable treatment of religion is largely illusory. The Constitution also protects other important values, such as freedom of speech, "life, liberty, [and] property," and equality, to name just a few. And this is where the primary danger of RFRA statutes becomes apparent. Some general laws are designed to further one or more of these other constitutional values. Laws prohibiting race discrimination in employment, business, or housing, for example, advance the constitutional principle of equality, extending the formal requirement of equal protection from the realm of government action (which is directly controlled by the Constitution) to the realm of private conduct (which is not). If RFRA laws are applied to create exemptions from these antidiscrimination laws, then one constitutional value (freedom of religion) is being deployed to trump another (equality).
Of course, if constitutional values conflict, one of them has to win out; one competing value inevitably must take precedence over the other. If the choice is between religious freedom and equality, why shouldn't religious freedom win? In the abstract, I'm not sure which value is more important. (I strongly lean towards equality; others surely will disagree.) But the issue presented by Indiana's version of RFRA is not an abstract one. That law expressly protects the "religious freedom" not just of individuals or religious organizations, but also of for-profit businesses; and it expressly applies not just to actions taken by the government (such as tax assessments or criminal prosecutions), but also to private lawsuits. This means that if an Indianapolis hotel (say) refuses to rent its honeymoon suite to a newly married gay couple; or an Indianapolis Hooters refuses to hire an openly lesbian waitress; these businesses cannot be sued for violating the Indianapolis ordinance that prohibits private discrimination based on sexual orientation. They would be exempted from that ordinance thanks to the new state-wide RFRA statute.
Imagine that the owner of our hypothetical Indianapolis hotel holds a sincere religious belief that interracial marriage is against God's will. (As Garrett Epps points out, such beliefs were not that terribly uncommon not that terribly long ago.) It would be obvious to most of us in that case that the value of equality should trump the hotelier's claim of religious freedom. Renting a room to an interracial couple, after all, would not force the hotel owner to change her religious beliefs; it would not prevent her from communicating those beliefs to others or expressing those beliefs through the rituals and practices of her religion. But refusing to rent the room would cause clear material harm to the interracial couple, who would be deprived of a benefit to which others are entitled, merely because of their race. And while the hotel owner is free not to invite the couple to dine at her private home, or to worship at her church, her decision to enter the hotel business is a voluntary (and remunerative) act of participation in civil society -- and thus a voluntary choice to submit to the legal and social norms of that society in the operation of her business.
As this hypothetical shows, to cloak the Indiana RFRA law in the mantle of "religious freedom" is to obscure a lot that is important about how the law will apply in the real world. The law safeguards, not simply private acts of worship or expressions of belief, but the use of for-profit businesses to inflict real, material harm on others. It thus tolerates demonstrable acts of inequality in the name of protecting the religious sensibilities of some business owners.
Of course, the meaning of "equality," like the meaning of "religious freedom," is a matter of debate. The racial-discrimination hypothetical is powerful precisely because, when it comes to race discrimination, that debate is now over; the proponents of racism have lost. No court would exempt the racist hotelier from the scope of antidiscrimination laws; any judge would recognize the state's compelling interest in preventing race discrimination. The debate over sexual orientation, obviously, continues (although the opponents of tolerance are losing at an encouraging rate). But it is not open to proponents of RFRA laws like Indiana's to remain on the fence about sexual-orientation discrimination, as Indiana's governor Pence has tried to do. (Pence says he favors amending the law to "clarify" that it does not license discrimination against gays. But he also has no plans to push for affirmative state-wide bans on LGBT discrimination.) If RFRA treats LGBT discrimination differently from race discrimination -- if it exempts the former but not the latter -- then it takes a stand on the discrimination issue: it declares that sexual-orientation equality is less important than racial equality. On the other hand, if Indiana's RFRA treats LGBT and race discrimination the same, then it assumes the opposite position on the equality question -- and there is no reason for the state not to add sexual orientation to its list of criteria upon which businesses in that state may not discriminate.
There is an irony here. Indiana's and other recent RFRA laws seem to have been prompted by the rapid spread of same-sex marriage, and in particular by the possibility that the Supreme Court will soon hold that state laws prohibiting same-sex marriage are unconstitutional. But if the Court in fact decides this, the likely result will be to render RFRA laws irrelevant to the same-sex marriage question. If same-sex couples have a constitutional right to marry, then the state governments have a compelling interest in protecting their freedom to do so. And this compelling interest is sufficient to override claims of religious freedom under every current RFRA statute.
In other words, a SCOTUS decision recognizing the constitutional right of gay couples to marry -- ideally premised on a recognition that sexual orientation is a "suspect" basis of legal classification -- would make it clear that sexual-orientation equality, like racial equality (or for that matter religious freedom), is a central constitutional value that may not be sacrificed to the religious sensibilities of a few. Here's hoping Justice Kennedy feels the same way.
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