Mississippi, the First Amendment Defense Act, Accommodation, and Apartheid

Judge Carlton Reeves rendered an impressive opinion holding that the latest Mississippi law to stigmatize and marginalize the LGBTQ community and same-sex marriage partners is unconstitutional. It was defended as merely “religious accommodation.” He thoughtfully ruled that it violated the Equal Protection and Establishment Clauses.

I say that this is the “latest” such law, because Mississippi already had passed the most oppressive state religious liberty law in the United States. It opened the door to discrimination by shopowners against LGBTQ and same-sex partners (and any other category a believer could claim, say race, gender, religion, or national origin). Hats off to Judge Reeves for upholding the Constitution against the social pressures that led to Mississippi’s extreme anti-LGBTQ laws in the first place.

FADA

Enter the perversely-named federal First Amendment Defense Act (“FADA”), which bears similarities to the Mississippi law that just was held unconstitutional and should suffer the same fate, as I discuss here.  This is just another attempt from a quadrant of believers to create a separate society of believers who do not have to “deal with” the “other” of the LGBTQ community.

Here is the opening language of FADA:

To ensure that the Federal Government shall not take any discriminatory action against a person, wholly or partially on the basis that such person believes, speaks, or acts in accordance with a sincerely held religious belief or moral conviction that marriage is or should be recognized as the union of one man and one woman, or that sexual relations are properly reserved to such a marriage, and for other purposes.

Translation: A category of people defined by their beliefs about marriage get special protections. What is that belief? That same-sex couples should not be married and should not have sex. Why do they need these protections? Because the Supreme Court held that such individuals have a constitutional right to be married.

The bill then catalogues a breathtaking list of special treatment for such believers: if you have this belief and that leads you to violate your legal obligations, you can’t be punished. You can’t lose tax benefits (like non-profit status) and you can’t be sued for your discriminatory actions, among others.

Is FADA Just Another Religious “Accommodation”? No

Those favoring such laws typically call them religious “accommodation,” but FADA is not a law of religious accommodation like any ever found consistent with the First Amendment. For example, in Employment Div. v. Smith, the Court made clear that it would find acceptable an accommodation for the use of peyote for those who use it religiously. That was a single practice-specific accommodation, narrowly designed to lift a burden off of specific, narrow religious conduct.  When one adds the foundational principle that the government may not favor some believers over others, that meant that all believers who use peyote for religious services in the same way would have to be accommodated.  In other words, accommodation just for the Native American Church would violate the Establishment Clause. The accommodation must be broader but also quite narrow at the same time. That is the accommodation the Court approved.

Accommodation also has been addressed at the wholesale level through two decisions, one judging the constitutionality of the blunderbuss accommodation law, the Religious Freedom Restoration Act (“RFRA”) and the other addressing a facial challenge to the pernicious Religious Land Use and Institutionalized Persons Act (“RLUIPA”). Neither came close to holding that a FADA would pass muster. RFRA was held unconstitutional in Boerne v. Flores.  Cutter v. Wilkinson held that RLUIPA survived a facial challenge in the context of state prisons.  Beyond these two decisions, the parameters of permissible accommodation in the context of broad-brush religious accommodation laws has been left untouched. If such silence meant anything when Justice Scalia was on the Court, it means nothing now that he’s gone.

Now set FADA against these cases.  It is more brazen than any other accommodation offered. At least with RFRA, the evangelical agenda of wanting to refuse to rent apartments to unmarried couples and unwed mothers was hidden. Here, the exclusionary agendas are front and center. The arguments against it span the First Amendment’s Free Speech, Free Exercise, and Establishment Clause, and the Equal Protection Clauses. The only defense of it is religious “accommodation,” which, as I say above means next to nothing, because it is a new-fangled accommodation.

What is the purpose of FADA and Mississippi’s recent forays? In the big picture, it seems pretty clear to me that they are trying to construct a universe in which they do not have to “deal with” LGBTQ individuals. They don’t want to have to deal with LGBTQ individuals in business, in public accommodations like restaurants and hotels and apartment buildings, or anywhere else. They don’t want to have to serve them when they are hungry or house them when they are homeless or treat them when they are sick. These are many of the same people who believe in “re-educating” or just shunning gay youth.  In short, they want two worlds: one with their own kind and one with the “others” over there.

Their defense for their agenda is that they have the “right” to believe what they want. Well, yes, they have an absolute right to believe under the First Amendment. They also have a strong right to say what they believe. But they also have an obligation to the rest of society, and what they are suggesting is not far from the two-cultures universe of South Africa’s apartheid. What many in the U.S. conveniently forget about apartheid is that it was not “just” racism, but rather racism deeply intertwined with one faith, the Dutch Reformed faith. There was a well-developed theology of racism in South Africa that supported it and that cemented it into generations, just as there was a theology of slavery embedded in the plantation society in the United States. The separation by race in both societies was achieved with the support and at the encouragement of certain religious believers and faiths.

To put it in our contemporary terms, in South Africa, the separation of races was an “accommodation” of the Dutch Reformed faith. The unseemly FADA with its wealth and mission protection for a group of believers whose goal is to exclude is also an “accommodation,” but one that is unacceptable in a free society.

Bottom line: some religious accommodation is simply immoral and wrong. So calling it “accommodation” gets you nowhere. Apartheid is wrong. Slavery is wrong. Treating women like men’s property is wrong. Polygamy is wrong.  Sex with children is wrong. Letting children die of treatable medical ailments simply because their parents believe only God can heal is wrong. And each and every one has been defended on the basis of religious belief, and a law that permits it would be an “accommodation.”

FADA is also wrong.