Friday, April 10, 2015

Religious Exemptions, Religious Equality, and Religious Preferences

by Eric Segall

Reasonable people can and do disagree over whether allowing religious exemptions from generally applicable laws is good policy or bad policy or constitutionally required or even constitutionally forbidden. The Hobby Lobby decision focused a lot of attention on these questions and now these issues are again in the news as states debate whether to enact RFRAs and whether people with sincere religious objections to same-sex marriage must comply with generally applicable non-discrimination laws. Although the policy and constitutional questions may be difficult, one thing should be admitted openly by all those in favor of religious exemptions: what they are advocating for amounts to religious preferences, not religious equality.

As Mike noted at the end of his post on Wednesday, the federal RFRA was enacted in response to a kind of inequality among religions: General laws permitting wine--which is used for sacramental purposes by millions of Catholics and Jews--but forbidding peyote--which is used for sacramental purposes by a small number of Native Americans--had a discriminatory impact on religious minorities. By subjecting such laws to heightened scrutiny, RFRA could be said to be leveling the playing field, i.e., to be serving a kind of equality among and between religions. But, as between religious folks and the non-religious, RFRA leads to inequality for the latter.

Imagine two objectors to the Affordable Care Act’s requirement that certain employers provide health insurance coverage for contraception devices. One person, call him Professor Jonathan Adler of Case Western who maybe owns a small business on the side, sincerely objects to the ACA on the grounds that the best reading of the Constitution forbids the federal government from engaging in the regulation of health insurance. He has written books and articles, sent out 10,000 tweets, and writes legal briefs arguing the ACA is unconstitutional on federalism grounds. He has no legal basis to object, however, to complying with the law even if he swears under oath he can’t sleep at night because his conscience is so burdened by the imminent threat the ACA poses to our constitutional system.

Now imagine the CEO of Hobby Lobby objects to the ACA on the basis that his company is guided by religious principles and the requirement that his company must pay for contraception devices substantially burdens those principles. He may well prevail (in fact he did).

Maybe we should privilege religious conscience over federalism conscience and maybe RFRA is a good law. Maybe the best reading of the Free Exercise Clause is that it requires such an accommodation. But whether the accommodation is made under statute or Constitution, religious exemptions privilege religious values over secular values, religious conscience over non-faith based conscience.

The religious preferences underlying the federal and state RFRAs as they are now being invoked would be seen even more plainly were we to allow religious values to trump non-discrimination values. Imagine a Kosher baker who is required under state non-discrimination laws to provide his services to all customers without regard to race, religion, gender, and sexual orientation. That baker does not want to provide his cakes to marriages between mixed race, mixed faith, and same-sex couples.  Meanwhile a state RFRA requires the state to show a compelling state interest when a general law substantially burdens a person’s exercise of religion. The baker refuses service to all three couples who file lawsuits. Whether the baker wins or loses will depend on the application by a judge of the compelling interest balancing test.

Now imagine the baker’s non-Kosher brother who is a member of the KKK. He believes that allowing mixed race, mixed faith, and same sex couples to marry will lead to the end of civilization. He regularly hands out brochures (protected by the First Amendment), in the public square expressing these views. He also owns a bakery and he does not want to sell his cakes to the three couples refused service by his brother. He, however, has no claim and he receives no balancing test.
A person who feels these two brothers should be treated differently under the law is espousing that religious values should receive, not equal treatment, but special treatment. That may be good or it may be bad, but the issue is not whether religion should be treated equally or neutrally but whether it should be treated more favorably.

It is possible to imagine that a broad theory of religious exemptions could threaten important Establishment Clause values by treating religious and non-religious folks differently. Imagine a state with a RFRA that also has a law that makes smoking marijuana a crime. One person wants to get high for medical purposes to relieve pain and stress and one as part of a religious ceremony to better serve God’s will. They are both arrested (for the same act) and one goes to jail and one goes free because of the RFRA. If all of this were to happen under state law, that government would be allowing one person but not the other the privilege of smoking marijuana and thus clearly favoring religion over non-religion. Add jail time to the mix and I hope it is clear how those two cases involve the kind of religious preference that could implicate Establishment Clause concerns.

Now, let a fair debate begin.


Shag from Brookline said...

There seems to be a market developing for "designer religions" under the free exercise clause that members sincerely believe in to accommodate their personal preferences. Keep in mind what Seinfeld's George Costanza said about lying: "It's not a lie if you believe it." Just extend this to sincerity in a designer religion that a court might accept without requiring proof.

Unknown said...

Your reasoning is flawed in three aspects.

One, the idea RFRA laws "allow religious values to trump non-discrimination values" simply does not happen. When the principles of RFRA were seen as the correct interpretation of the Free Exercise clause, Bob Jones University tried to claim such an exemption and the claim was soundly rejected by the Supreme Court. Likewise, the Supreme Court noted in Hobby Lobby how bans on discrimination support a compelling government interest which can only be advanced by such bans; while the Court in that case was referring to discrimination bans with respect to employment, the same reasoning applies to bans on discrimination with respect to commercial service.

Two, in the case of the Brother in the KKK, in such a scenario, the Klansman is almost certainly going to raise a religion-based claim. My unfortunate experiences with Members of the Klan strongly suggests Their views on race are more often than not grounded in religious arguments. Therefore, odds are the scenario will not play out as You have described.

Three, the Supreme Court has had multiple opportunities in the last 22 years to declare RFRAs raise Establishment Clause concerns and has never done so, despite repeated urging to do so from a minority of amici on the subject. I'll proverbially go out on a limb and say such laws do not run afoul of that particular clause.

Unknown said...

@Shag: In re "sincerity in a designer religion that a court might accept without requiring proof", I think it is safe to say, going forward, courts and other government Officials are going to be on the lookout for signs of insincerity. Remember, the test in RFRAs has been around for the better part of a century, the earliest proto-articulation of which occurs in West Virginia State Board of Education v. Barnette in 1943 with formal codification in Sherbert in 1963, and the courts have a long history of detecting, for example, questionable sudden conversions to the Church of Marijuana by Defendants upon arrest for drug charges.

Joe said...

In Hosanna Tabor v. EEOC, a law in place to protect the disabled was applied to give favorable treatment to religious institutions.

Just one example. It "does happen." Yes, racial discrimination in respect to funding in the Bob Jones case won out. Hobby Lobby did not say all claims of discrimination (which covers lots of classes) trump in each case. Also, the opinion's argument there is not really a burden given the government alternative is not quite true. Finally, it is unclear every loophole is covered (and there is still litigation regarding if simply submitting a form is a burden -- litigation where religious groups have favoritism).

States now can also not protect gays and lesbians from discrimination while favoring religious exercise. Many states do so. The Indiana RFRA amendment only deals with taking away a RFRA claim. There is no general state protection of gays and lesbians in public accommodations. RFRA provides a religious protection. This "allows religious values to trump"; also the amendment lists a range of classes that are protected. Not every single possible one.

It is also "almost certainly" the case that certain claims won't be treated the same as the contraceptives claims. It's at some point hard to believe that worrying about supplying a form, that level of triviality, is going to applied in each and every case. It's impractical.

Finally, the concern about the Establishment Clause is partially avoided by dealing with burdens on third parties. The USSC drew the line there, e.g., in U.S. v Lee. Hobby Lobby dealt with that opinion in part by saying RFRA didn't merely "restore" the law in place but went further. This led to a 5-4 opinion, when in the past only one justice worried about the constitutionality of the law on 1A grounds.

A 5-4 opinion to me sounds like the issue just might be close.

Joe said...

I do think the 1A singles out religion, in both directions. We can define it broadly and/or protect conscience too, but yes, religion is treated differently.

Stuart McPhail said...

What are the odds that an atheist manages to craft a RFRA argument - along the lines of Seeger - that a law conflicts with a belief that, though not based on theology, is nonetheless deeply held and holds a position similar to a religious belief in a theist. A court could either find RFRA does or does not cover that belief, which opens up two scenarios. (1) If the court finds it does cover the belief, then RFRA is a very broad law indeed and basically subjects every law to strict scrutiny - likely a politically unpalatable result. (2)If the court finds RFRA does not cover it, then an establishment or free exercise challenge is strengthened (as now, everyone can pretend RFRA is evenly applied without bias).

Joe said...

Well, vaccine exemption laws in the states often have a broad "conscience" exemption.

But, I have my doubts. People will find a way, especially outside sending them to die, a way to deny atheists rights. CA just rejected a RFRA claim for some sun lover atheist. See also, e.g., how Doug Laycock tossed his atheist client under the bus during the oral argument on legislative prayers.

Paul Scott said...

"What are the odds that an atheist manages to craft a RFRA argument - along the lines of Seeger - that a law conflicts with a belief that, though not based on theology, is nonetheless deeply held and holds a position similar to a religious belief in a theist."

None. The very thing defines an atheist prevents it. I don't have any "deeply held" beliefs - I have things that I accept right now because the evidence (either personally generated or readings from sources that follow the scientific method have established). The closest thing I have to a "deeply held belief" is veganism, but if the evidence were to show that plants suffer more than animals, that growing plants was more harmful to the environment and that eating meat was better for my health then I would no longer be vegan.

The very nature of being non-religious means not having "beliefs." I (and any atheist) cannot "hold[s] a position similar to a religious belief in a theist" because we don't believe the magician's hat was empty.

Unknown said...

@Joe: The government's compelling interest in discrimination laws is ensuring the full economic participation of All. I know of no way of advancing that interest less restrictive than bans on discrimination against Customers of various demographics. Do You?

Unknown said...

In re atheism, one court recently held atheism qualifies as a religion for Free Exercise purposes. In August 2005, in a case where a prison Inmate was blocked by prison Officials from creating an inmate group to study and discuss atheism, the court ruled this violated the Inmate's rights under the First Amendment's Free Exercise Clause. So, legally speaking, atheism is a religion.

Joe said...

"Atheist" for some people might have the broad meaning offerred, but the core meaning is a disbelief in God. Some religions accept atheists as members. I have seen certain ethical culture societies label them as "religions" too. One court defining it isn't determinative, but various courts have deemed atheism an aspect of free exercise in some fashion, including as a general choice regarding religious practice (likewise freedom of speech includes choosing not to).

Anti-discrimination laws have more than one interest; a primary interest is to announce that certain criteria are illegitimate in the eyes of society. This is a telling qualifier -- there are lots of possible classifications here & states treat them somewhat differently. Thus, e.g., the Civil Rights Act of 1964 in various ways protect race, sex and religion. Not "discrimination" alone. Gays in various states have less protection in state anti-discrimination laws than religious belief. As noted, even the Indiana RFRA amendment lists a range of classes protected from RFRA claims. Not any possible one.

Shag from Brookline said...

Of course already designed religions can be readily redesigned via biblical references to accommodate many religious - let's be sincerely honest - biases. Andrew Koppelman's "Nonexistent & Irreplaceable - Keep the Religion in Religious Freedom" at Commonweal is a quite interesting essay, delving into conscience as it may be distinguished from religion. The essay closes with this:

"I suspect that from a legal and political standpoint, the best we can do is embrace the paradox of religion: protect it, because it doesn't exist."

It's not only lawyers looking for "loopholes, loopholes" in the manner of W. C. Fields caught thumbing through the Bible during a serious illness.

A link to the Koppelman essay is available at his recent post at Balkinization.

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Unknown said...

Remember, the test in RFRAs has been around for the better part of a century, the earliest proto-articulation of which occurs in West Virginia State Board of Education v. Barnette in 1943 with formal codification in Sherbert in 1963, and the courts have a long history of detecting, for example, questionable sudden conversions to the Church of Marijuana by Defendants upon arrest for drug charges.meizu mx4 pro