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.