Religious freedom efforts backfire
Discrimination against gays was legal in two states before new laws raised the issue.
WASHINGTON — What began 20 years ago as a bipartisan drive to protect the rights of people to follow their faith against an overbearing government erupted this week into a divisive dispute over gay rights and religious freedom.
And the fracture can be traced back to two recent moves by the Supreme Court that set up an unusual legal crosscurrent between liberals and conservatives.
By overturning a key provision of the federal Defense of Marriage Act in 2013, the court set in motion a string of rulings across the nation that voided state laws banning same-sex marriage. By this June, a majority of justices is widely expected to legalize gay marriage nationwide.
At the same time, the Supreme Court ruled in another case last year that the family owners of the Hobby
Lobby craft-store chain had a religious-liberty right to refuse to offer contraception coverage for its employees.
So while the marriage ruling opened the door for expanded protections for gays and lesbians, the Hobby Lobby decision offered new tools for those opposed to such moves.
Conservatives applauded the 5-4 Hobby Lobby ruling, which was based on the Religious Freedom Restoration Act signed by President Clinton in 1993. The law — originally aimed to protect the Amish, Native Americans and others whose religious practices ran afoul of local or state laws — says the “government shall not substantially burden a person’s exercise of religion.”
But the court’s conservative majority defined “person” to include profit-making companies. Justice Ruth Bader Ginsburg, speaking for the liberal dissenters, called it a “decision of startling breadth” that gives “commercial enterprises, including corporations” a right to ignore laws that conflict with their owners’ religious views.
Armed with the Hobby Lobby ruling and concerned that their statewide bans against same-sex marriage were in danger, conservative lawmakers in Indiana, Arkansas and other states adopted their own versions of the federal religious-freedom law.
Some conservatives hoped the 1993 law would protect religious-minded individuals and businesses from legal mandates on gay marriage that they said would violate their faith. The most commonly cited example was a religious baker who did not want to be forced to make a cake for a gay wedding.
Using the Hobby Lobby precedent, some states broadened the scope of the federal religious-liberty law — which dealt with conflicts between the government and individuals — and defined a protected person to include a business, company or corporation. That small change created a large concern.
“It’s much broader than the federal law,” said Katherine Franke, a Columbia University law professor. “They felt emboldened by Hobby Lobby.” In late February, she wrote a letter on behalf of 30 professors to warn Indiana lawmakers their bill would create “confusion and conflict” if it became law.
By giving special religious rights to businesses, the law could encourage “employers, landlords, small-business owners and corporations to take the law into their own hands,” they warned, and to refuse to serve gay customers.
If social conservatives had hoped to use the 1993 law as a legal backstop against efforts to legalize same-sex marriage, events in Indiana and Arkansas suggest such a strategy is politically unpopular and risks backfiring.
Bowing to public and corporate outrage over new state laws that critics warned might allow religiously minded businesses to turn away gay and lesbian customers, Republican state lawmakers quickly retreated.
In Indiana, they added a provision that says religious liberty is not an excuse for a business to discriminate based on sexual orientation.
The abrupt turnaround may not be the final word on gay rights and religious freedom, but it revealed an emerging consensus on a principle of national equality: Businesses that are open to the public must be open to all and may not discriminate against customers based on their sexual orientation.
So rather than expand the scope of religious liberty, as conservatives had intended, the battles in Indiana and Arkansas instead accelerated the push for civil rights protections for gays and lesbians.
“Nothing concentrates the mind like a threat,” said Dale Carpenter, a University of Minnesota law professor. “What happened last week made clear there is very influential support — cultural and political — in favor of equality for gay people. You have academics, business, one political party and now sports on the side of the equality,” he said.
Franke said she saw some irony in the outcome, noting that in Indiana — before the recent flap — there were no legal protections against discriminating on the basis of sexual orientation.
“It had been perfectly legal in Indiana to fire someone who is gay or deny them service. And religious liberty was doing just fine,” she said. But by trying to “fix a problem that wasn’t broken,” she said, Indiana’s fumbling lawmakers gave a national boost to the cause of gay equality.
Ideals about the right to receive equal service and treatment from businesses have been rooted in American society since the sodacounter protests of the 1960s civil rights push.
When Congress passed the Civil Rights Act of 1964, it did more than outlaw racial segregation. It established the principle that businesses that serve the public must be open to all. “All persons shall be entitled to the full and equal enjoyment of the goods, services, facilities and privileges … of any place of public accommodation,” the law said, and “without discrimination or segregation on the account of race, color, religion or national origin.”
In keeping with the times, the law carefully listed lunch counters, soda fountains, restaurants, gas stations, theaters, sports arenas and any lodging establishment that rents at least five rooms. A separate provision prohibited discrimination by employers.
While Congress has not extended such protections to gays and lesbians, 22 states and more than 185 cities and counties have prohibited discrimination based on sexual orientation. And that notion of civil rights and equal treatment is not limited to liberals.
“I abhor discrimination,” Republican Gov. Mike Pence of Indiana said last week, confronting claims that the religious freedom law he championed created a “license to discriminate.” Writing in the Wall Street Journal, Pence said he believed in the Bible’s Golden Rule of doing unto others as you would have them do unto you. “If I saw a restaurant owner refuse to serve a gay couple, I wouldn’t eat there anymore,” he said.
Leaders of 70 tech-industry firms signed a joint letter opposing the early version of Indiana’s law, and Wal-Mart did the same in regard to similar legislation in Arkansas. “We are proud to stand on the side of liberty and justice and call on all legislatures to add sexual orientation and gender identity as protected classes in nondiscrimination protections,” said Max Levchin, chief executive of Affirm, who organized the statement by tech industry leaders.
Social conservatives aren’t all in agreement on the issue. Lawyers for the Becket Fund for Religious Liberty and the Arizonabased Alliance Defending Freedom criticized Indiana’s “fix” as unnecessary.
Mark Rienzi, a law professor at Catholic University, said the religious freedom laws “provide crucial protections to religious minorities. The key disagreement is over what should happen in a very small class of cases where individuals are asked to participate in a same-sex wedding in violation of their religious beliefs.”
Stanford Law professor Michael McConnell also supports the religious freedom laws, but says their impact has been exaggerated.
“Businesses that have to serve all members of the public have to serve all members of the public,” he said. “That is the principle of public accommodation law.”
As examples, he cited taxis, phone companies, restaurants and hotels.
But he said some people might have a religious objection to providing certain services. “For example, I would think a Jewish wedding singer could legitimately refuse to sing in a church wedding.... For a photographer or other artist to refuse to apply her creative gift to a same-sex marriage ceremony is much the same. I cannot understand why any civil libertarian would want to force someone to participate in a ceremony they do not approve of.”
‘What happened … made clear there is very influential support … in favor of equality for gay people.’
— Dale Carpenter, University of Minnesota law professor