Gay Rights, Religious Freedom & the Law

By DAVID B. RIVKIN JR. And ELIZABETH PRICE FOLEY, April 9, 2015 6:53 p.m. ET

Debates about the Indiana and Arkansas Religious Freedom Restoration Acts, or RFRAs, have regrettably pitted religious freedom against gay rights. Critics claim the laws provide a license to discriminate against lesbian, gay, bisexual or transgender (LGBT) individuals. But this criticism shouldn’t be aimed at the religious-freedom laws, which don’t license discrimination based on sexual orientation or anything else.

Those wanting to advance LGBT rights should focus on enacting laws that bar discrimination. If there is a legal “license” to discriminate based on sexual orientation, it is because few jurisdictions today provide protection against such discrimination, or because the Constitution may immunize such behavior in certain circumstances.

There is no federal law prohibiting private discrimination based on sexual orientation. An executive order by President Obama in 2014 bans such discrimination only for federal workers and contractors. About 20 states and some municipalities prohibit sexual-orientation discrimination in workplaces and public accommodations. But the majority of states still don’t proscribe discrimination based on sexual orientation, though discrimination based on race, gender, ethnicity or national origin is banned.

The federal Religious Freedom Restoration Act was passed by overwhelming bipartisan majorities and signed by President Clinton in 1993. It represented a backlash against the Supreme Court’s 1990 decision in Employment Division v. Smith. That decision held that the First Amendment’s Free Exercise Clause doesn’t allow a religious exemption from laws of general applicability—e.g., compulsory military service, or prohibitions on drug use or animal cruelty—even if those laws substantially burden religious exercise.

The federal RFRA law supplanted Smith, declaring that the government could substantially burden religious exercise only upon proving a “compelling” government interest for doing so, and using only the “least restrictive means” of furthering that interest. The Supreme Court, for example, recently affirmed that the federal RFRA allowed Hobby Lobby, a corporation closely held by religious owners, to refuse participation in ObamaCare’s contraceptive mandate, which would have required the company to provide contraceptives that may destroy an already-fertilized egg.

Because the federal RFRA applies only to federal actions, 20 states have passed their own religious-freedom laws designed to provide the same protection against state-imposed religious burdens. Another 11 states have implemented similar protections through court decisions, based on state constitutions.

So why have the latest religious-freedom laws been so controversial? RFRA has become a political focal point for pent-up anger over the paucity of legal protections against LGBT discrimination. A specific controversy is over the application of such laws to lawsuits between private parties.

Indiana’s RFRA applies “regardless of whether the state or any other governmental entity is a party to the proceeding.” Federal RFRA doesn’t clearly apply to such private disputes, and federal courts are divided on whether it should. Arkansas adopted language identical to the federal RFRA.

Applying religious-freedom laws to private disputes has stirred fears that businesses will be able to defend discriminatory behavior when LGBT individuals sue them. This fear is greatly overblown. First, in states or localities where there is no law banning sexual-orientation discrimination, individuals and businesses are allowed to discriminate, with or without a RFRA.

Second, where it’s illegal to discriminate, a religious-freedom defense requires proving that the antidiscrimination statute “substantially burdens” religion.

Third, even if it does, courts routinely conclude that preventing discrimination is a compelling interest, so the LGBT plaintiff wins. RFRA thus doesn’t change outcomes—only laws banning sexual-orientation discrimination will.

Such laws won’t eliminate all legal questions, however. Those engaged in activities with a strong expressive component—e.g., officiating at a wedding—may claim that their First Amendment free-speech or association rights trump antidiscrimination statutes. Some of these claims may prove successful.

Moreover, state and federal law allows individuals to refuse to provide certain services, such as abortions, based on moral objections. Similar conscience-based protections may eventually be demanded to accommodate moral objections to participation in same-sex weddings by the likes of wedding planners, photographers or bakers.

Americans have generally settled on the proper reach of statutes prohibiting race, gender, ethnicity or national origin-based discrimination by banning it in places of employment or public accommodation. With this consensus in mind, states and the federal government should consider statutes prohibiting in similar circumstances sexual-orientation discrimination.

Religious-freedom laws merely recognizing religious liberty—a centerpiece of liberal society—would then be more likely to become as universally accepted as they were in the 1990s.

Mr. Rivkin, a constitutional litigator, served in the Justice Department and the White House Counsel’s Office in the Reagan and George H.W. Bush administrations. Ms. Foley is a constitutional law professor at Florida International University College of Law.


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