Last week, the Arizona legislature approved a bill that, if signed by Governor Jan Brewer, would greatly expand the scope of religious exemptions from nondiscrimination law in that state. Like measures that have been proposed in other states, the Arizona bill grows out of a fear by people who are opposed to same-sex marriage that they will be required to provide services to same-sex couples.
Whether such proposals are constitutional remains to be seen. For now, though, they underscore the pressing need for federal legislation barring sexual-orientation discrimination.
Religious Freedom and General Laws
Prior to 1990, the Free Exercise Clause of the First Amendment to the U.S. Constitution was understood to prevent government from enforcing its laws upon persons who had sincere religious objections to complying with those laws—unless the government could show that enforcing the law over the religious objection was necessary to serve a “compelling” interest. But in 1990, the Supreme Court ruled in Employment Division v. Smith that the Free Exercise Clause provides no shield against laws that do not specifically target religion.
The Smith ruling was broadly unpopular. At the federal level, it led to the bipartisan passage of the Religious Freedom Restoration Act (RFRA) in 1993. As its name suggests, RFRA restores the pre-Smith rule, under which religious exceptions are granted even when a law does not specifically single out religion. Although the Supreme Court held in 1997 that RFRA could not be validly applied to state or local laws, it remains valid as applied to federal laws, and serves as the basis for the challenges to the contraception mandate of the Affordable Care Act, which is currently pending before the Justices.
Meanwhile, most states provide religious exceptions to their own laws under state constitutional provisions and state-level RFRAs. The Arizona bill would amend that state’s RFRA to expand the protection that it already affords.
In particular, the Arizona bill would expand the definition of a “person” entitled to a religious exemption from other state laws. The original Arizona RFRA covered individuals and religious entities such as churches; the expanded version would also cover associations, corporations, and other business organizations. In addition, the Arizona bill that passed last week would make the state RFRA applicable in private litigation—for example, by photographers or bakers who refuse to serve same-sex couples.
Are Expanded Exemptions Constitutional?
Would laws expanding religious exemptions be constitutional? In the 1996 case of Romer v. Evans, the Supreme Court interpreted the Constitution to forbid laws that reflect “animus” against gay and lesbian Americans. Last year’s decision in United States v. Windsor reaffirmed the anti-animus principle. Given the motives of those who support the expansion of religious exemptions, it is not difficult to construct an argument that the new laws would deny equal protection.
However, that argument would be easier to make in some states than in others. Some of the proposed expansions of religious liberty are specifically limited to issues of sexual orientation or same-sex marriage. For example, a proposal for an Oregon ballot initiative and a bill in Tennessee take that form.
But the Arizona bill would go further. It would authorize religious exemptions for businesses from all state laws, including those forbidding race and sex discrimination. Under the bill, if the owners of a restaurant had a religious objection to a state law requiring them to serve customers regardless of race, they could, in principle, be protected under the Arizona bill.
In practice, however, even the Arizona bill would likely be operative only with respect to sexual-orientation discrimination. Federal statutes already forbid places of public accommodation from discriminating on the basis of race and sex, and under the Constitution’s Supremacy Clause, state law cannot provide exemptions from federal law.
Whether a general expansion of a state RFRA would be vulnerable to an anti-animus challenge is unclear. On one hand, it seems clear that the primary motive of the supporters of such laws is resistance to sexual-orientation equality, which is a kind of animus. On the other hand, the laws struck down in the prior anti-animus cases in the Supreme Court specifically targeted LGBT persons as such. Moreover, the push for expanded religious exemptions is not limited to laws involving sexual orientation, as the pending Supreme Court litigation over the ACA contraception mandate illustrates. Thus, it is possible that the backers of the Arizona bill really are concerned about granting very broad protection to religious liberty, rather than (or in addition to) limiting the equality rights of LGBT Americans.
The Need for Federal Legislation
From the beginning, some observers warned that allowing religious exemptions from general laws was dangerous. For example, Cardozo Law Professor and Verdict columnist Marci Hamilton has long argued that the federal RFRA is unconstitutional on a variety of grounds, including in a brief in the pending Supreme Court cases. As I explained in a recent essay on SCOTUSblog, I consider the arguments against RFRA’s validity to be weaker than Hamilton does, but I share her policy worry that political actors may be taking the argument for religious exemptions too far.
That reassessment is part of a broader shift. Since the enactment of the federal RFRA in 1993, the bipartisan support for religious exemptions has eroded. Increasingly, liberals worry that social conservatives are using broad claims of religious liberty to undermine other important values, especially equality.
Thus, while nearly everyone agrees that no priest, minister, imam, or rabbi should be required to perform a same-sex marriage ceremony that his or her religion forbids, many of us are wary of claims by wedding florists, bakers, and photographers that their religious beliefs entitle them to operate for-profit businesses in violation of basic equality norms.
The core problem is that our law does not yet fully reflect those equality norms. For its part, the Supreme Court has not expressly held that the Constitution treats sexual orientation as a presumptively invalid ground for discrimination, although it has offered hints in that direction.
Meanwhile, federal statutes forbid private discrimination based on race, sex, religion, and other illicit criteria, but not based on sexual orientation or gender identity. Past efforts have come close to filling this gap, but with the exception of the historic 2010 vote to repeal the Don’t-Ask-Don’t-Tell law, Congress has failed to enact civil rights legislation to protect LGBT Americans against discrimination.
If Congress were to update our civil rights laws—and if it were to do so in a way that made clear that these laws are only subject to narrowly-confined religious exemptions—then state laws like the Arizona bill would be ineffective, because they would be preempted by federal law. Congress should act now to render irrelevant state laws that define religious freedom so broadly as to license prejudice.